Preview
FILED: NEW YORK COUNTY CLERK 05/20/2019 10:23 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 05/20/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------------------------------------------------X Index No.: 158327/13
KEVIN McGONIGAL,
AFFIRMATION IN REPLY
Plaintiff, TO DAY & NITE’S
-against- OPPOSITION
NYY STEAK MANHATTAN, LLC, PLAZA
CONSTRUCTION CORP. and BARING
INDUSTRIES, INC.,
Defendants.
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PLAZA CONSTRUCTION CORP.,
Third-Party
Defendant/Third-Party Plaintiff, Index No.: 595146/14
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant.
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BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff, Second Third-Party
-against- Index No.: 595130/15
DAY & NIGHT REFRIGERATION CORP. and
KIMCO REFRIGERATION CORP.,
Second Third-Party Defendants.
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NYY STEAK MANHATTAN LLC, and PLAZA
CONSTRUCTION LLC f/k/a PLAZA
CONSTRUCTION CORP.,
Third Third-Party Plaintiffs,
-against-
B&G ELECTRICAL CONTRACTORS, ESS & VEE
ACOUSTICAL CONTRACTORS, INC. and
BARING INDUSTRIES, INC.,
Third Third-Party Defendants
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EILEEN R. FULLERTON, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following to be true upon information and belief under
penalties of perjury:
1. I am a member of the firm of FULLERTON BECK, LLP, attorneys for third third-
party defendant, B&G ELECTRICAL CONTRACTORS (hereinafter “B&G”), and as such am
fully familiar with the facts and circumstances of the instant matter pursuant to a review of the file
maintained by this office.
2. The within affirmation is submitted in Reply to DAY & NITE REFRIGERATION
CORP. (hereinafter “D&N”) affirmation in opposition to B&G’s summary judgment motion, and
in further support of B&G’s motion seeking dismissal of the third third-party complaint, and all
cross claims, and granting such other, further, and different relief as the court may deem just,
proper, and equitable.
PRELIMINARY STATEMENT
3. B&G submits that D&N’s opposition should not be considered as they have never
asserted any claims against B&G, and nor has B&G asserted any claims against D&N in this
matter, and as such, they have no standing to oppose our motion seeking to dismiss the claims of
NYY STEAK and PLAZA.
4. Annexed hereto collectively as Exhibit “A” are the answers filed by D&N, and see
Exhibit “F” annexed to B&G’s moving papers for B&G’s answer, none of which contain cross-
claims. We note that the only parties that ever served any claims on B&G is NYY STEAK,
PLAZA and ESS & VEE. ESS & VEE have not opposed our motion, thus abandoning their cross-
claims. (See Exhibit “F”).
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5. Rather than repeat and reiterate the statement of facts and preliminary statement
regarding the facts of this matter, we respectfully refer the court to moving papers, and Reply
submitted in responses to NYY STEAK and PLAZA’s opposition.
POINT I
DAY & NITE OPPOSITION IS INSUFFIICENT TO RAISE A TRIAL ISSUE OF FACT
WITH RESPECT TO NYY STEAK AND PLAZA’S CLAIMS FOR CONTRACTUAL
AND/OR COMMON LAW INDEMNIFICATION
a) The Accident Did Not Arise out of B&G’s Work
6. First and foremost, D&E has no standing to oppose our motion seeking dismissal
of claims asserted against B&G by NYY STEAK and/or PLAZA. We again note that N&E has
no claims against B&G, and nor does B&G have any claims against D&E. It is clear that D&N is
trying to avoid the fact that this accident arose out of their work on this job site, and ifNYY
STEAK and/or PLAZA are entitled to defense and indemnification from any party it is clearly
N&E.
7. There is not a scintilla of evidence to show that B&G in any way caused or
contributed to the plaintiff’s accident or that B&G created the condition which caused plaintiff’s
accident, i.e. the wooden debris. The arguments that B&G uncovered the pit where plaintiff landed
after he tripped on the wood is nothing but mere surmise and speculation, and unsupported by any
admissible evidence. To argue that plaintiff’s accident arose out of B&G’s work on this site is
misplaced and completely unsupported by all testimony and documentary evidence. B&G was
retained to perform electrical work on this project, including placement of temporary lighting.
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8. There is no dispute that B&G fully completed their contracted work on this project,
including the installation of temporary string lighting in the basement. There is further no dispute
that there were no complaints by anyone on this project to B&G about the sufficiency of the
lighting installed, and at no time did PLAZA or NYY STEAK request additional lighting be
placed.
9. The facts in this case are simple, and unrefuted by factual evidence. The plaintiff,
through his employment with D&N, was moving a condenser to the basement level of the subject
premises, and while doing so he was walking backwards pulling it on dolly. The plaintiff had to
rely on looking over his shoulder to see where he was going. Plaintiff did not have any other
worker directing him backwards and acting as a guide while he moved this equipment. While
walking backwards the plaintiff tripped over wood/debris that was in his path, which he did not
see because he was forced to walk backwards while pulling this large equipment.
10. D&N solely directed the plaintiff’s work, and the manner in which their equipment
was brought on site, including the decision to have the plaintiff walk backwards without any guide
along the way. The accident arose out of the plaintiff’s work on this site, and the manner in which
they were moving equipment.
11. The dangerous condition which caused plaintiff to trip, was not caused or created
by B&G, in fact no one knew how or why the debris was in that location. The plaintiff confirmed
that no other trade was working in the area where his accident arose, and no other witnesses who
testified could place B&G in that location performing work. Furthermore, an electrical contractor
would not be using form wood, such, as the kind plaintiff allegedly tripped over.
12. There is no dispute that B&G was not responsible for site safety. B&G was not
responsible for cleaning debris at the site. Therefore, the fact that plaintiff, in performing his duties
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for D&N, was injured when he tripped over debris left by an unknown entity, is clearly not
something that arose out of B&G’s work such as to trigger indemnification owed to NYY STEAK
and/or PLAZA.
13. B&G should not as a matter of law be required to indemnify any party for its own
negligence or that of another party. Here, it is undisputed that plaintiff was walking backwards
immediately before the alleged accident occurred. Plaintiff received all his instructions on how to
perform this task from Julian, D&N’s foreman. Plaintiff testified the following:
Q. Who designated who would push and who would pull?
A. The foreman, Julian
(Exhibit H, p. 67)
Q. Did anyone give any instructions or directions on how to do that?
A. I was told to pull the unit
Q. Who told you that?
A. My foreman
Q. That was Julian?
A. Yeah
(Exhibit H, p. 77)
14. Plaintiff also testified that no one was guiding him and his co-worker while they
were transporting the condenser. At minimum, D&N failed to provide a spotter for plaintiff and
Julian to properly perform his task.
Q. Was there anyone else around who was watching you and Julian
who would say, “You have to look out and account for this,” or,
“You have to account for that,” or, “Make a turn here and there,” or
“something like that?
A. No
(Exhibit K, p. 72-73)
15. Plaintiff’s accident arose out of D&N’s work on the site, and was the result of
PLAZA’s negligence in failing to clear the area of construction debris. Furthermore, the method
used by D&N clearly contributed to the occurrence, in that they had workers pulling a large piece
of equipment, while walking backwards, and failed to have another worker act a spotter or guide.
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b) B&G Did Not Uncover the Pit, and the Pit Was Not the Proximate Cause of the Accident
16. Next D&N argue that B&G uncovered the pit where plaintiff ultimately landed after
he fell. First, this is based on nothing but speculation, and not based on the testimony of any party.
Second, even if the pit had been uncovered by B&G (which we vehemently deny) it was not the
proximate cause of the accident, but merely where plaintiff landed. The plaintiff tripped over
wood debris that was in his path, and as a result of tripping and falling backwards he landed in the
pit. Had the pit been covered the plaintiff still would have tripped and fallen, thus, the proximate
cause of the accident was the wood in which he tripped, and not the lighting or the uncovered pit
where he ultimately landed.
17. As stated by the Court of Appeals, it must be shown that the “negligence was the
cause of the event which produced the harm sustained by the one who brings the complaint.”
Sheehan v. City of New York, 40 N.Y.2d 496, 501, 387 N.Y.S.2d 92, 95 (1976). None of the
opposing parties are able to make such a showing in this matter.
CONCLUSION
18. DAY & NITE’s opposition is insufficient as a matter of law, and any purported
claims asserted by this entity should be dismissed.
19. Any arguments that the accident was the result of insufficient lighting is
unsupported and misplaced, as the plaintiff’s testimony was clear that he was walking backwards
when his foot came in contact with a piece of wood, causing him to fall. Further, the fact that he
landed in the pit is not a contributing factor to the happening on the accident.
20. The evidence is clear that PLAZA failed to maintain the job site, thus allowing
debris to liter the basement, as described by plaintiff in his testimony. Furthermore, the accident
did not arise out of the B&G contracted work, but rather it clearly arose out of D&N’s work.
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Plaintiff was in the process of moving materials and equipment in furtherance of D&N contracted
refrigeration work, and was doing it in the manner directed by his D&N foreman. The accident
arose out of D&N work, and their opposition is a feigned attempt to avoid their own contractual
obligation to defend and indemnify NYY STEAK and PLAZA under their contract with PLAZA,
but making these weak attempts to shift liability on B&G, where clearly no liability rests.
WHEREFORE, it is respectfully requested that the Court issue an Order granting the
within motion for summary judgment, dismissing all claims and cross-claims against B&G, and
together with such other, further and different relief, as the Court deems proper.
Dated: White Plains, New York
May 20, 2019
________________________________
Eileen R. Fullerton
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Preview
FILED: NEW YORK COUNTY CLERK 05/20/2019 10:23 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 05/20/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------------------------------------------------X Index No.: 158327/13 KEVIN McGONIGAL, AFFIRMATION IN REPLY Plaintiff, TO DAY & NITE’S -against- OPPOSITION NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., Defendants. ---------------------------------------------------------------------------X PLAZA CONSTRUCTION CORP., Third-Party Defendant/Third-Party Plaintiff, Index No.: 595146/14 -against- BARING INDUSTRIES, INC., Third-Party Defendant. ---------------------------------------------------------------------------X BARING INDUSTRIES, INC., Second Third-Party Plaintiff, Second Third-Party -against- Index No.: 595130/15 DAY & NIGHT REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendants. ----------------------------------------------------------------------------X NYY STEAK MANHATTAN LLC, and PLAZA CONSTRUCTION LLC f/k/a PLAZA CONSTRUCTION CORP., Third Third-Party Plaintiffs, -against- B&G ELECTRICAL CONTRACTORS, ESS & VEE ACOUSTICAL CONTRACTORS, INC. and BARING INDUSTRIES, INC., Third Third-Party Defendants --------------------------------------------------------------------------X 1 of 7 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:23 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 05/20/2019 EILEEN R. FULLERTON, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true upon information and belief under penalties of perjury: 1. I am a member of the firm of FULLERTON BECK, LLP, attorneys for third third- party defendant, B&G ELECTRICAL CONTRACTORS (hereinafter “B&G”), and as such am fully familiar with the facts and circumstances of the instant matter pursuant to a review of the file maintained by this office. 2. The within affirmation is submitted in Reply to DAY & NITE REFRIGERATION CORP. (hereinafter “D&N”) affirmation in opposition to B&G’s summary judgment motion, and in further support of B&G’s motion seeking dismissal of the third third-party complaint, and all cross claims, and granting such other, further, and different relief as the court may deem just, proper, and equitable. PRELIMINARY STATEMENT 3. B&G submits that D&N’s opposition should not be considered as they have never asserted any claims against B&G, and nor has B&G asserted any claims against D&N in this matter, and as such, they have no standing to oppose our motion seeking to dismiss the claims of NYY STEAK and PLAZA. 4. Annexed hereto collectively as Exhibit “A” are the answers filed by D&N, and see Exhibit “F” annexed to B&G’s moving papers for B&G’s answer, none of which contain cross- claims. We note that the only parties that ever served any claims on B&G is NYY STEAK, PLAZA and ESS & VEE. ESS & VEE have not opposed our motion, thus abandoning their cross- claims. (See Exhibit “F”). 2 of 7 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:23 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 05/20/2019 5. Rather than repeat and reiterate the statement of facts and preliminary statement regarding the facts of this matter, we respectfully refer the court to moving papers, and Reply submitted in responses to NYY STEAK and PLAZA’s opposition. POINT I DAY & NITE OPPOSITION IS INSUFFIICENT TO RAISE A TRIAL ISSUE OF FACT WITH RESPECT TO NYY STEAK AND PLAZA’S CLAIMS FOR CONTRACTUAL AND/OR COMMON LAW INDEMNIFICATION a) The Accident Did Not Arise out of B&G’s Work 6. First and foremost, D&E has no standing to oppose our motion seeking dismissal of claims asserted against B&G by NYY STEAK and/or PLAZA. We again note that N&E has no claims against B&G, and nor does B&G have any claims against D&E. It is clear that D&N is trying to avoid the fact that this accident arose out of their work on this job site, and ifNYY STEAK and/or PLAZA are entitled to defense and indemnification from any party it is clearly N&E. 7. There is not a scintilla of evidence to show that B&G in any way caused or contributed to the plaintiff’s accident or that B&G created the condition which caused plaintiff’s accident, i.e. the wooden debris. The arguments that B&G uncovered the pit where plaintiff landed after he tripped on the wood is nothing but mere surmise and speculation, and unsupported by any admissible evidence. To argue that plaintiff’s accident arose out of B&G’s work on this site is misplaced and completely unsupported by all testimony and documentary evidence. B&G was retained to perform electrical work on this project, including placement of temporary lighting. 3 of 7 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:23 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 05/20/2019 8. There is no dispute that B&G fully completed their contracted work on this project, including the installation of temporary string lighting in the basement. There is further no dispute that there were no complaints by anyone on this project to B&G about the sufficiency of the lighting installed, and at no time did PLAZA or NYY STEAK request additional lighting be placed. 9. The facts in this case are simple, and unrefuted by factual evidence. The plaintiff, through his employment with D&N, was moving a condenser to the basement level of the subject premises, and while doing so he was walking backwards pulling it on dolly. The plaintiff had to rely on looking over his shoulder to see where he was going. Plaintiff did not have any other worker directing him backwards and acting as a guide while he moved this equipment. While walking backwards the plaintiff tripped over wood/debris that was in his path, which he did not see because he was forced to walk backwards while pulling this large equipment. 10. D&N solely directed the plaintiff’s work, and the manner in which their equipment was brought on site, including the decision to have the plaintiff walk backwards without any guide along the way. The accident arose out of the plaintiff’s work on this site, and the manner in which they were moving equipment. 11. The dangerous condition which caused plaintiff to trip, was not caused or created by B&G, in fact no one knew how or why the debris was in that location. The plaintiff confirmed that no other trade was working in the area where his accident arose, and no other witnesses who testified could place B&G in that location performing work. Furthermore, an electrical contractor would not be using form wood, such, as the kind plaintiff allegedly tripped over. 12. There is no dispute that B&G was not responsible for site safety. B&G was not responsible for cleaning debris at the site. Therefore, the fact that plaintiff, in performing his duties 4 of 7 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:23 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 05/20/2019 for D&N, was injured when he tripped over debris left by an unknown entity, is clearly not something that arose out of B&G’s work such as to trigger indemnification owed to NYY STEAK and/or PLAZA. 13. B&G should not as a matter of law be required to indemnify any party for its own negligence or that of another party. Here, it is undisputed that plaintiff was walking backwards immediately before the alleged accident occurred. Plaintiff received all his instructions on how to perform this task from Julian, D&N’s foreman. Plaintiff testified the following: Q. Who designated who would push and who would pull? A. The foreman, Julian (Exhibit H, p. 67) Q. Did anyone give any instructions or directions on how to do that? A. I was told to pull the unit Q. Who told you that? A. My foreman Q. That was Julian? A. Yeah (Exhibit H, p. 77) 14. Plaintiff also testified that no one was guiding him and his co-worker while they were transporting the condenser. At minimum, D&N failed to provide a spotter for plaintiff and Julian to properly perform his task. Q. Was there anyone else around who was watching you and Julian who would say, “You have to look out and account for this,” or, “You have to account for that,” or, “Make a turn here and there,” or “something like that? A. No (Exhibit K, p. 72-73) 15. Plaintiff’s accident arose out of D&N’s work on the site, and was the result of PLAZA’s negligence in failing to clear the area of construction debris. Furthermore, the method used by D&N clearly contributed to the occurrence, in that they had workers pulling a large piece of equipment, while walking backwards, and failed to have another worker act a spotter or guide. 5 of 7 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:23 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 05/20/2019 b) B&G Did Not Uncover the Pit, and the Pit Was Not the Proximate Cause of the Accident 16. Next D&N argue that B&G uncovered the pit where plaintiff ultimately landed after he fell. First, this is based on nothing but speculation, and not based on the testimony of any party. Second, even if the pit had been uncovered by B&G (which we vehemently deny) it was not the proximate cause of the accident, but merely where plaintiff landed. The plaintiff tripped over wood debris that was in his path, and as a result of tripping and falling backwards he landed in the pit. Had the pit been covered the plaintiff still would have tripped and fallen, thus, the proximate cause of the accident was the wood in which he tripped, and not the lighting or the uncovered pit where he ultimately landed. 17. As stated by the Court of Appeals, it must be shown that the “negligence was the cause of the event which produced the harm sustained by the one who brings the complaint.” Sheehan v. City of New York, 40 N.Y.2d 496, 501, 387 N.Y.S.2d 92, 95 (1976). None of the opposing parties are able to make such a showing in this matter. CONCLUSION 18. DAY & NITE’s opposition is insufficient as a matter of law, and any purported claims asserted by this entity should be dismissed. 19. Any arguments that the accident was the result of insufficient lighting is unsupported and misplaced, as the plaintiff’s testimony was clear that he was walking backwards when his foot came in contact with a piece of wood, causing him to fall. Further, the fact that he landed in the pit is not a contributing factor to the happening on the accident. 20. The evidence is clear that PLAZA failed to maintain the job site, thus allowing debris to liter the basement, as described by plaintiff in his testimony. Furthermore, the accident did not arise out of the B&G contracted work, but rather it clearly arose out of D&N’s work. 6 of 7 FILED: NEW YORK COUNTY CLERK 05/20/2019 10:23 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 278 RECEIVED NYSCEF: 05/20/2019 Plaintiff was in the process of moving materials and equipment in furtherance of D&N contracted refrigeration work, and was doing it in the manner directed by his D&N foreman. The accident arose out of D&N work, and their opposition is a feigned attempt to avoid their own contractual obligation to defend and indemnify NYY STEAK and PLAZA under their contract with PLAZA, but making these weak attempts to shift liability on B&G, where clearly no liability rests. WHEREFORE, it is respectfully requested that the Court issue an Order granting the within motion for summary judgment, dismissing all claims and cross-claims against B&G, and together with such other, further and different relief, as the Court deems proper. Dated: White Plains, New York May 20, 2019 ________________________________ Eileen R. Fullerton 7 of 7