Preview
INDEX NO. 158327/2013
NYSCEF DOC. NO. 131 RECEIVED NYSCEF 12/23/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
KEVIN McGONIGAL,
Index No.: 158327/13
Plaintiff,
-against-
NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51 STREET
LLC and PLAZA CONSTRUCTION CORP. ,
Defendants.
PLAZA CONSTRUCTION CORP. , RESPONSE TO THIRD-
PARTY DEFENDANT ESS
Third-Party Plaintiffs, & VEE ACOUSTAICAL
CONTRACTOR, INC.’s
-against- DEMAND FOR BILL OF
PARTICULARS
BARING INDUSTRIES, INC.,
Third-Party Defendant.
X
BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
-against-
DAY & NITE REFRIGERATION CORP. and KIMCO Third-Party Index No.
REFRIGERATION CORP., 595146/14
Second-Third-Party Defendants.
Xx
NYY STEAK MANHATTAN, LLC, & PLAZA
CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP.,
Third Third-Party Plaintiffs, Second Third Party
-against- Index No.
595130/15
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and BARING
INDUSTRIES, INC.,
Third Third-Party Defendants.
xX
— a —
PLEASE TAKE NOTICE that, in the above-entitled action, defendant /third third-party
plaintiff, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff/third third-
(938473/1]
party plaintiff, PLAZA CONSTRUCTION LLC fi/k/a PLAZA CONSTRUCTION CORP. hereby
respond, by their attorneys, Fabiani Cohen & Hall, to third third-party defendant ESS & VEE
ACOUSTICAL CONTRACTORS, INC.’S Third-Party Demand for Bill of Particulars upon
information and belief as follows:
1. It is alleged that defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC
and defendant/third-party plaintiff/third third-party plaintiff, PLAZA CONSTRUCTION
CORP. are entitled to total indemnification as they are free of any active negligence and
any finding of liability will be purely statutory. Defendant/third third-party plaintiff,
NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff/third third-party
plaintiff, PLAZA CONSTRUCTION CORP. will seek partial contractual indemnification
in the event of a finding of some degree of fault on their part.
Indemnity is claimed by virtue of breach of contract, breach of warranty, negligence of
the third third-party defendant and third third-party defendant’s obligation to hold
Defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC and
defendant/third-party plaintiff/third third-party plaintiff, PLAZA CONSTRUCTION
CORP. harmless.
a. Written agreement.
b. Written agreement.
c. A copy of the agreement executed by ESS & VEE ACOUSTICAL CONTRACTORS,
INC. is attached as Exhibit “A”.
In the event plaintiff proves the allegations of his complaint as amplified by his bill of
particulars, said allegations having been categorically denied by these answering
defendants, and, in the event plaintiff proves that there was a dangerous and/or hazardous
(938473/1]
condition in the area of the accident, then it will be alleged that the third third-party
defendant breached its contract in failing to keep the area of the alleged accident properly
guarded.
In the event plaintiff proves the allegations of his complaint as amplified by his bill of
particulars, said allegations having been categorically denied by these answering
defendants, and, in the event plaintiff proves that there was a dangerous and/or hazardous
condition in the area of the accident, then it will be alleged that the third third-party
defendant breached its express and implied warranties to provide services in a
professional and workmanlike manner in failing to keep the area of the alleged accident
properly guarded and protected.
Defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC and
defendant/third-party plaintiff/third third-party plaintiff, PLAZA CONSTRUCTION
CORP. deny that there was any dangerous or hazardous condition. However, in the event
plaintiff proves there was such a dangerous and hazardous condition, it will be alleged
that the third third-party defendant caused and/or created it in failing to properly guard
and/or protect the area of the alleged accident.
In writing. See Exhibit “A”.
In the event plaintiff proves the allegations of his complaint as amplified by his bill of
particulars, said allegations having been categorically denied by these answering
defendants, and, in the event plaintiff proves that there was a dangerous and/or hazardous
condition in the area of the accident, then it will be alleged that the third third-party
defendant breached its express and implied warranties to provide services in a
(938473/1]
accident
professional and workmanlike manner in failing to keep the area of the alleged
properly guarded and protected.
Defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC and
defendant/third-party plaintiff/third third-party plaintiff, PLAZA CONSTRUCTION
deny that anyone’s acts or omissions other than plaintiffs caused and/or
CORP.
contributed to his alleged accident and injuries. To the extent that there were any acts or
omissions that contributed to the alleged accident other than those of plaintiff, then itwill
be the acts and/or omissions of the third third-party defendant in failing to keep the area
properly guarded and/or protected.
10 Annexed hereto as Exhibit “B” is plaintiff’s bills of particulars.
WHEREFORE, Defendant/third third-party plaintiff, NYY STEAK MANHATTAN,
LLC and defendant/third-party plaintiff/third third-party plaintiff PLAZA CONSTRUCTION LLC
f/kla PLAZA CONSTRUCTION CORP. reserves its right to amend and/or supplement the
of trial.
foregoing responses pending the completion of discovery through and including the time
Dated: New York, New York Yours, etc.,
December 18, 2015
FABIANI COHEN & HALL, LIP
Jo)
enneth J. Kutner
Attorneys for Defendant /Third Third-Party
Plaintiff, NYY STEAK MANHATTAN, LLC
and Defendant/Third-Party Plaintiff/Third Third-
Party Plaintiff, PLAZA CONSTRUCTION LLC
f/k/a PLAZA CONSTRUCTION CORP.
570 Lexington Avenue, 4" Floor
New York, New York 10022
212 644-4420
Fax: 212-207-8182
File No. 731-37312
(938473/1)
TO:
SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C
Attorneys for Third Third-Party Defendant
ESS & VEE ACOUNSTICAL CONTRACTORS, INC.
111 John Street
New York, New York 10038
(212) 964-7400
File No. AWA-00112
Sacks and Sacks, LLP
Attorneys for Plaintiff
Kevin McGonigal
150 Broadway, 4" Floor
New York, New York 10038
212-964-5700
LAW OFFICES OF CHARLES J. SIEGEL
Attorneys for Third-Party Defendant
BARING INDUSTRIES, INC.
125 Broad Street — 7" Floor
New York, New York 10004
Attention: Nikolas E. Diamantis, Esq.
MILBER MAKRIS PLOUSADIS & SEIDEN LLP
Attorneys for Second Third-Party Defendants
ION CORP.
DAY & NITE REFRIGERATION CORP. and K.J.M. CO. REGRIGERAT
s/h/a KIMCO REFRIGERATION CORP.
1000 Woodbury Road, Suite 402
Woodbury, NY 11797
(516) 712-4000
(516) 712-4013(fax)
File No.: 532-11347
KAUFMAN BORGEEST & RYAN
Attorneys for Third Third-Party Defendant
B&G ELECTRICAL CONTRACTORS
200 Summit Lake Drive, First Floor
Valhalla, NY 10595
File No. 4204.018
(938473/1]
Preview
INDEX NO. 158327/2013 NYSCEF DOC. NO. 131 RECEIVED NYSCEF 12/23/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK KEVIN McGONIGAL, Index No.: 158327/13 Plaintiff, -against- NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51 STREET LLC and PLAZA CONSTRUCTION CORP. , Defendants. PLAZA CONSTRUCTION CORP. , RESPONSE TO THIRD- PARTY DEFENDANT ESS Third-Party Plaintiffs, & VEE ACOUSTAICAL CONTRACTOR, INC.’s -against- DEMAND FOR BILL OF PARTICULARS BARING INDUSTRIES, INC., Third-Party Defendant. X BARING INDUSTRIES, INC., Second Third-Party Plaintiff, -against- DAY & NITE REFRIGERATION CORP. and KIMCO Third-Party Index No. REFRIGERATION CORP., 595146/14 Second-Third-Party Defendants. Xx NYY STEAK MANHATTAN, LLC, & PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party Plaintiffs, Second Third Party -against- Index No. 595130/15 B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third Third-Party Defendants. xX — a — PLEASE TAKE NOTICE that, in the above-entitled action, defendant /third third-party plaintiff, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff/third third- (938473/1] party plaintiff, PLAZA CONSTRUCTION LLC fi/k/a PLAZA CONSTRUCTION CORP. hereby respond, by their attorneys, Fabiani Cohen & Hall, to third third-party defendant ESS & VEE ACOUSTICAL CONTRACTORS, INC.’S Third-Party Demand for Bill of Particulars upon information and belief as follows: 1. It is alleged that defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff/third third-party plaintiff, PLAZA CONSTRUCTION CORP. are entitled to total indemnification as they are free of any active negligence and any finding of liability will be purely statutory. Defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff/third third-party plaintiff, PLAZA CONSTRUCTION CORP. will seek partial contractual indemnification in the event of a finding of some degree of fault on their part. Indemnity is claimed by virtue of breach of contract, breach of warranty, negligence of the third third-party defendant and third third-party defendant’s obligation to hold Defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff/third third-party plaintiff, PLAZA CONSTRUCTION CORP. harmless. a. Written agreement. b. Written agreement. c. A copy of the agreement executed by ESS & VEE ACOUSTICAL CONTRACTORS, INC. is attached as Exhibit “A”. In the event plaintiff proves the allegations of his complaint as amplified by his bill of particulars, said allegations having been categorically denied by these answering defendants, and, in the event plaintiff proves that there was a dangerous and/or hazardous (938473/1] condition in the area of the accident, then it will be alleged that the third third-party defendant breached its contract in failing to keep the area of the alleged accident properly guarded. In the event plaintiff proves the allegations of his complaint as amplified by his bill of particulars, said allegations having been categorically denied by these answering defendants, and, in the event plaintiff proves that there was a dangerous and/or hazardous condition in the area of the accident, then it will be alleged that the third third-party defendant breached its express and implied warranties to provide services in a professional and workmanlike manner in failing to keep the area of the alleged accident properly guarded and protected. Defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff/third third-party plaintiff, PLAZA CONSTRUCTION CORP. deny that there was any dangerous or hazardous condition. However, in the event plaintiff proves there was such a dangerous and hazardous condition, it will be alleged that the third third-party defendant caused and/or created it in failing to properly guard and/or protect the area of the alleged accident. In writing. See Exhibit “A”. In the event plaintiff proves the allegations of his complaint as amplified by his bill of particulars, said allegations having been categorically denied by these answering defendants, and, in the event plaintiff proves that there was a dangerous and/or hazardous condition in the area of the accident, then it will be alleged that the third third-party defendant breached its express and implied warranties to provide services in a (938473/1] accident professional and workmanlike manner in failing to keep the area of the alleged properly guarded and protected. Defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff/third third-party plaintiff, PLAZA CONSTRUCTION deny that anyone’s acts or omissions other than plaintiffs caused and/or CORP. contributed to his alleged accident and injuries. To the extent that there were any acts or omissions that contributed to the alleged accident other than those of plaintiff, then itwill be the acts and/or omissions of the third third-party defendant in failing to keep the area properly guarded and/or protected. 10 Annexed hereto as Exhibit “B” is plaintiff’s bills of particulars. WHEREFORE, Defendant/third third-party plaintiff, NYY STEAK MANHATTAN, LLC and defendant/third-party plaintiff/third third-party plaintiff PLAZA CONSTRUCTION LLC f/kla PLAZA CONSTRUCTION CORP. reserves its right to amend and/or supplement the of trial. foregoing responses pending the completion of discovery through and including the time Dated: New York, New York Yours, etc., December 18, 2015 FABIANI COHEN & HALL, LIP Jo) enneth J. Kutner Attorneys for Defendant /Third Third-Party Plaintiff, NYY STEAK MANHATTAN, LLC and Defendant/Third-Party Plaintiff/Third Third- Party Plaintiff, PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP. 570 Lexington Avenue, 4" Floor New York, New York 10022 212 644-4420 Fax: 212-207-8182 File No. 731-37312 (938473/1) TO: SMITH MAZURE DIRECTOR WILKINS YOUNG & YAGERMAN, P.C Attorneys for Third Third-Party Defendant ESS & VEE ACOUNSTICAL CONTRACTORS, INC. 111 John Street New York, New York 10038 (212) 964-7400 File No. AWA-00112 Sacks and Sacks, LLP Attorneys for Plaintiff Kevin McGonigal 150 Broadway, 4" Floor New York, New York 10038 212-964-5700 LAW OFFICES OF CHARLES J. SIEGEL Attorneys for Third-Party Defendant BARING INDUSTRIES, INC. 125 Broad Street — 7" Floor New York, New York 10004 Attention: Nikolas E. Diamantis, Esq. MILBER MAKRIS PLOUSADIS & SEIDEN LLP Attorneys for Second Third-Party Defendants ION CORP. DAY & NITE REFRIGERATION CORP. and K.J.M. CO. REGRIGERAT s/h/a KIMCO REFRIGERATION CORP. 1000 Woodbury Road, Suite 402 Woodbury, NY 11797 (516) 712-4000 (516) 712-4013(fax) File No.: 532-11347 KAUFMAN BORGEEST & RYAN Attorneys for Third Third-Party Defendant B&G ELECTRICAL CONTRACTORS 200 Summit Lake Drive, First Floor Valhalla, NY 10595 File No. 4204.018 (938473/1]