Preview
FILED: NEW YORK COUNTY CLERK 10/21/2019 12:27 PM INDEX NO. 158327/2013
NYSCEF DOC. NO. 474 RECEIVED NYSCEF: 10/21/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------- ----------------------------------------------X
KEVIN McGONIGAL, Motion Sequence No. 005
Plaintiff, Index No. 158327/13
-against -
REPLY
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION AFFIRMATION
CORP. and BARING INDUSTRIES, INC.,
Defendants. Hon. Margaret A. Chan
------------- -----------------------..--------------------------X
PLAZA CONSTRUCTION CORP., Return Date: 10/22/19
Third-Party Plaintiff,
-against -
TP Index No.:
BARING INDUSTRIES, INC., 595146/14
Third-Party Defendant.
X
BARING INDUSTRIES, INC.,
Second Third-Party Plaintiff,
-against -
Second TP Index No.:
DAY & NITE REFRIGERATION CORP. and KIMCO 595130/15
REFRIGERATION CORP.,
Second Third-Party Defendants.
--------------------------------------------X
NYY STEAK MANHATTAN, LLC & 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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NYSCEF DOC. NO. 474 RECEIVED NYSCEF: 10/21/2019
DAVID A. LORE, an attorney duly admitted to the practice of law before the Courts of the State
of New York, hereby affirms the following under the penalty of perjury and pursuant to CPLR §2106:
1. I am a member of the law firm MILBER MAKRIS PLOUSADIS & SEIDEN, LLP,
attorneys for Second Third-Party Defendants, DAY & NITE REFRIGERATION CORP. and K.I.M. CO.
REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP. (collectively referred to as "Day &
Nite"). As such, I am familiar with the facts and circumstances of this matter based upon a review of the
file maintained by this office.
2. I respectfully submit this affirmation in reply to the respective affirmations served on
behalf of Third Third-Party Defendants ESS & VEE ACOUSTICAL CONTRACTORS ("Ess & Vee")
and B&G ELECTRICAL CONTRACTORS ("B&G"), to the extent that they oppose that portion of Day
& Nite's pending summary judgment motion which as an alternative argument seeks leave to amend Day
& Nite's answer to include common law cross-claims against Ess & Vee and B&G. Nothing in the
opposition papers warrants the denial of Day & Nite's motion in this regard.
3. The Court is respectfully reminded that the decision as to whether to grant a party leave
pursuant to CPLR §3025 is governed by perhaps the most liberal standards in New York civil practice.
As discussed in Day & Nite's main motion papers, both the CPLR and the case law permit the amending
of pleadings at any time, even after the close of discovery, months after the filing of the Note of Issue,
and even after trial. The key criterion to examine is therefore not Day & Nite's purported delay in seeking
leave, but rather whether the proposed amendment will result in significant prejudice to the other parties.
Itwas Ess & Vee and B&G's burden to demonstrate this prejudice. Neither does so in their opposition
papers.
4. Ess & Vee's sole argument is that because Day & Nite did not submit opposition papers to
Ess & Vee's pending summary judgment motion, Day & Nite waived the ability to cross-claim against
Ess & Vee. Ess & Vee does not provide any authority to support this position, and makes no attempt to
2
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demstrate how or why, assuming that Ess & Vee's motion is denied, Ess & Vee would be prejudiced if
Day & Nite was permitted to amend its answer.
5. Although not submitted by Day & Nite, an abundance of evidence was submitted by other
parties in opposition to Ess & Vee's motion. In the event that Ess & Vee's motion is ultimately denied, a
jury one day might very well determine that the alleged accident was in some way connected to Ess &
Vee's work at the site. Additionally, ifEss & Vee is found to be negligent (or issues of fact are found in
this regard at this motion practice stage), by definition Day & Nite's common law cross-claims would
remain alive as in order to have them dismissed Ess & Vee was required to show itsown freedom from
negligence. Under those circumstances, Day & Nite could pursue those cross-claims against Ess & Vee
to recoup any potential loss to Day & Nite pursuant to its own contractual indemnity provision with
Baring.
6. B&G spends most of its opposition papers improperly arguing the merits of the liability
claims against it. Aside from repeatedly stating in conclusory fashion that B&G would be prejudiced by
Day & Nite being permitted to amend its answer, at no point does counsel actually describe why this
would be so. The Court is reminded that B&G's claim that in essence ithad nothing to do with plaintiff
McGonigal's accident is merely itsown self-serving position; B&G's summary judgment motion has been
vigorously opposed by other parties, including Day & Nite. The Court is respectfully referred to Day &
Nite's opposition papers for a full discussion of the central role B&G played with respect to the facts and
circumstances of the subject incident. Since there is ample evidence of B&G's active negligence, to
merit"
desribe the proposed amendments as "clearly devoid of is nonsensical.
"prejudice"
7. As for any purported to B&G, Day & Nite served its Notice of Cross-Claims
on B&G right in the middle of when discovery was ongoing, and at a time when Day & Nite had yet to
even produce itssecond witness for a deposition (Julian Gomez). B&G participated in all facets of the
exhaustive discovery process over a period of years, deposed both Day & Nite witnesses (three witnesses
if you include plaintiff himself), received alldiscovery materials exchanged by Day & Nite, participated
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in allpost-deposition discovery proceedings, agreed at multiple court conferences that all discovery
was complete and that the Note of Issue could be filed, and even made its summary judgment motion
well ahead of the other parties. To claim as counsel does in paragraph 13 of the opposition papers that
"B&G did not have an opportunity to properly defend against D&N's proposed cross-claims before
discovery..." "proposed"
completion of is similarly absurd. Day & Nite's cross-claims are identical in all
respects to the common law cross-claims against B&G served by NYY StealdPlaza Construction.
8. Nowhere in B&G's opposition papers does B&G actually describe or discuss what itwould
have done differently had Day & Nite sought leave to amend at an earlier time. B&G's papers do not
contain any description as to how itwas "hindered in the preparation of its case or has been prevented fom
position."
taking some measure in support of its Anoun v. City of New York, 85 A.D.3d 694, 926 N.Y.S.2d
(ISt
98 Dept. 2011). This is because there was no hinderance to B&G and B&G was not prevented from
"prejudice"
doing anything. The only that B&G might suffer ifthe amendment is permitted would be
exposure to greater liability,which under the case law is not a proper reason to deny Day & Nite's motion.
"prejudice"
Kimso Apartments, LLC v. Gandhi, 24 N.Y.3d 403 (2014). I note that even using the word in
"negative."
this context is not an appropriate use of the word; perhaps the correct word should be
9. In any event, Day & Nite maintains that the Notice of Cross-Claims itserved on Ess & Vee
and B&G earlier in the litigation was a proper vehicle in that itexpressly placed those parties on notice of
same. No one is disputing that Ess and Vee and B&G received such notice. Certainly, it is utterly
disingenuous to argue that different steps would have been taken during discovery had such claims been
contained on a different sheet of paper (without even discussing what would have been done differently).
Therefore, Day & Nite again requests that in an abundance of caution the Court permit the amendment of
itsanswer to include these common law cross-claims.
4
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WHEREFORE, itis respectfully submitted that the Court grant Day & Nite's motion and issue an
Order:
A) pursuant to CPLR §3211(a)(1) and §3212, granting summary judgment in
favor of DAY & NITE REFRIGERATION CORP. and KIMCO
REFRIGERATION CORP., and dismissing the Second Third-Party
Complaint and any and all claims as against DAY &
NITEREFRIGERATION CORP. and KIMCO REFRIGERATION CORP.
in their entirety and with prejudice; and
B) alternatively, pursuant to CPLR §3025, granting DAY & NITE
REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. leave
to amend their Verified Amended Answer to Second Third-Party Complaint
to include cross-claims as against Third Third-Party Defendants B&G
ELECTRICAL CONTRACTORS and ESS & VEE ACOUSTICAL
CONTRACTORS, INC.; and
C) awarding such other and further relief as the Court may deem just and
proper.
Dated: Woodbury, NY
October 21, 2019
David A. LoRe
5
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CERTIFICATE OF SERVICE
David A. LoRe, the attorney of record for Defendants, DAY & NITE REFRIGERATION
CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP.,
hereby certifies that on the date shown below, one copy of the foregoing REPLY
AFFIRMATION was caused to be served by ECF upon:
Nikolas E. Diamantis, Esq. SMITH MAZURE DIRECTOR WILKINS
LAW OFFICES OF CHARLES J. SIEGEL YOUNG & YAGERMAN, P.C.
Attorneys for Defendant/Third-Party Attorneys for Third Third-Party Defendant
Defendant/ ESS & VEE ACOUSTICAL
Second Third-Party Plaintiff CONTRACTORS, INC.
BARING INDUSTRIES, INC. 111 John Street
7d¹
125 Broad Street, Floor New York, NY 10038
New York, NY 10004
Dated: Woodbury, New York
October 21, 2019
David A. LoRe
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Index No. 158327 Year 2013 RJI No. Hon.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
KEVIN McGONIGAL,
Plaintiff,
-against-
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING
INDUSTRIES, INC.,
Defendants.
PLAZA CONSTRUCTION CORP.,
Third-Party Plaintiff,
-against-
BARING INDUSTRIES, INC.,
Third-Party Defendant/Second Third-Party Plaintiff,
-against-
DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP.,
Second Third-Party Defendants.
AND A THIRD THIRD-PARTY ACTION
REPLY AFFIRMATION
MILBER MAKRIS PLOUSADIS & SEIDEN, LLP
ATTORNEYS AT LAW
Attorneysfor Second Third-Party Defendants
DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP.
Office and Post OfficeAddress, Telephone
1000 Woodbury Road, Suite 402
Woodbury, NY 11797
(516) 712-4000
FileNo. 532-11347
To Signature (Rule 130-1.1-a)
.................................................................
Printname beneath
for Plaintiffs
Attorney(s)
Service of a copy of the within is hereby admitted.
Dated, .................................................................
Attomey(s)for
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Preview
FILED: NEW YORK COUNTY CLERK 10/21/2019 12:27 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 474 RECEIVED NYSCEF: 10/21/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------- ----------------------------------------------X KEVIN McGONIGAL, Motion Sequence No. 005 Plaintiff, Index No. 158327/13 -against - REPLY NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION AFFIRMATION CORP. and BARING INDUSTRIES, INC., Defendants. Hon. Margaret A. Chan ------------- -----------------------..--------------------------X PLAZA CONSTRUCTION CORP., Return Date: 10/22/19 Third-Party Plaintiff, -against - TP Index No.: BARING INDUSTRIES, INC., 595146/14 Third-Party Defendant. X BARING INDUSTRIES, INC., Second Third-Party Plaintiff, -against - Second TP Index No.: DAY & NITE REFRIGERATION CORP. and KIMCO 595130/15 REFRIGERATION CORP., Second Third-Party Defendants. --------------------------------------------X NYY STEAK MANHATTAN, LLC & 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. 1 of 7 FILED: NEW YORK COUNTY CLERK 10/21/2019 12:27 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 474 RECEIVED NYSCEF: 10/21/2019 DAVID A. LORE, an attorney duly admitted to the practice of law before the Courts of the State of New York, hereby affirms the following under the penalty of perjury and pursuant to CPLR §2106: 1. I am a member of the law firm MILBER MAKRIS PLOUSADIS & SEIDEN, LLP, attorneys for Second Third-Party Defendants, DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP. (collectively referred to as "Day & Nite"). As such, I am familiar with the facts and circumstances of this matter based upon a review of the file maintained by this office. 2. I respectfully submit this affirmation in reply to the respective affirmations served on behalf of Third Third-Party Defendants ESS & VEE ACOUSTICAL CONTRACTORS ("Ess & Vee") and B&G ELECTRICAL CONTRACTORS ("B&G"), to the extent that they oppose that portion of Day & Nite's pending summary judgment motion which as an alternative argument seeks leave to amend Day & Nite's answer to include common law cross-claims against Ess & Vee and B&G. Nothing in the opposition papers warrants the denial of Day & Nite's motion in this regard. 3. The Court is respectfully reminded that the decision as to whether to grant a party leave pursuant to CPLR §3025 is governed by perhaps the most liberal standards in New York civil practice. As discussed in Day & Nite's main motion papers, both the CPLR and the case law permit the amending of pleadings at any time, even after the close of discovery, months after the filing of the Note of Issue, and even after trial. The key criterion to examine is therefore not Day & Nite's purported delay in seeking leave, but rather whether the proposed amendment will result in significant prejudice to the other parties. Itwas Ess & Vee and B&G's burden to demonstrate this prejudice. Neither does so in their opposition papers. 4. Ess & Vee's sole argument is that because Day & Nite did not submit opposition papers to Ess & Vee's pending summary judgment motion, Day & Nite waived the ability to cross-claim against Ess & Vee. Ess & Vee does not provide any authority to support this position, and makes no attempt to 2 2 of 7 FILED: NEW YORK COUNTY CLERK 10/21/2019 12:27 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 474 RECEIVED NYSCEF: 10/21/2019 demstrate how or why, assuming that Ess & Vee's motion is denied, Ess & Vee would be prejudiced if Day & Nite was permitted to amend its answer. 5. Although not submitted by Day & Nite, an abundance of evidence was submitted by other parties in opposition to Ess & Vee's motion. In the event that Ess & Vee's motion is ultimately denied, a jury one day might very well determine that the alleged accident was in some way connected to Ess & Vee's work at the site. Additionally, ifEss & Vee is found to be negligent (or issues of fact are found in this regard at this motion practice stage), by definition Day & Nite's common law cross-claims would remain alive as in order to have them dismissed Ess & Vee was required to show itsown freedom from negligence. Under those circumstances, Day & Nite could pursue those cross-claims against Ess & Vee to recoup any potential loss to Day & Nite pursuant to its own contractual indemnity provision with Baring. 6. B&G spends most of its opposition papers improperly arguing the merits of the liability claims against it. Aside from repeatedly stating in conclusory fashion that B&G would be prejudiced by Day & Nite being permitted to amend its answer, at no point does counsel actually describe why this would be so. The Court is reminded that B&G's claim that in essence ithad nothing to do with plaintiff McGonigal's accident is merely itsown self-serving position; B&G's summary judgment motion has been vigorously opposed by other parties, including Day & Nite. The Court is respectfully referred to Day & Nite's opposition papers for a full discussion of the central role B&G played with respect to the facts and circumstances of the subject incident. Since there is ample evidence of B&G's active negligence, to merit" desribe the proposed amendments as "clearly devoid of is nonsensical. "prejudice" 7. As for any purported to B&G, Day & Nite served its Notice of Cross-Claims on B&G right in the middle of when discovery was ongoing, and at a time when Day & Nite had yet to even produce itssecond witness for a deposition (Julian Gomez). B&G participated in all facets of the exhaustive discovery process over a period of years, deposed both Day & Nite witnesses (three witnesses if you include plaintiff himself), received alldiscovery materials exchanged by Day & Nite, participated 3 3 of 7 FILED: NEW YORK COUNTY CLERK 10/21/2019 12:27 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 474 RECEIVED NYSCEF: 10/21/2019 in allpost-deposition discovery proceedings, agreed at multiple court conferences that all discovery was complete and that the Note of Issue could be filed, and even made its summary judgment motion well ahead of the other parties. To claim as counsel does in paragraph 13 of the opposition papers that "B&G did not have an opportunity to properly defend against D&N's proposed cross-claims before discovery..." "proposed" completion of is similarly absurd. Day & Nite's cross-claims are identical in all respects to the common law cross-claims against B&G served by NYY StealdPlaza Construction. 8. Nowhere in B&G's opposition papers does B&G actually describe or discuss what itwould have done differently had Day & Nite sought leave to amend at an earlier time. B&G's papers do not contain any description as to how itwas "hindered in the preparation of its case or has been prevented fom position." taking some measure in support of its Anoun v. City of New York, 85 A.D.3d 694, 926 N.Y.S.2d (ISt 98 Dept. 2011). This is because there was no hinderance to B&G and B&G was not prevented from "prejudice" doing anything. The only that B&G might suffer ifthe amendment is permitted would be exposure to greater liability,which under the case law is not a proper reason to deny Day & Nite's motion. "prejudice" Kimso Apartments, LLC v. Gandhi, 24 N.Y.3d 403 (2014). I note that even using the word in "negative." this context is not an appropriate use of the word; perhaps the correct word should be 9. In any event, Day & Nite maintains that the Notice of Cross-Claims itserved on Ess & Vee and B&G earlier in the litigation was a proper vehicle in that itexpressly placed those parties on notice of same. No one is disputing that Ess and Vee and B&G received such notice. Certainly, it is utterly disingenuous to argue that different steps would have been taken during discovery had such claims been contained on a different sheet of paper (without even discussing what would have been done differently). Therefore, Day & Nite again requests that in an abundance of caution the Court permit the amendment of itsanswer to include these common law cross-claims. 4 4 of 7 FILED: NEW YORK COUNTY CLERK 10/21/2019 12:27 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 474 RECEIVED NYSCEF: 10/21/2019 WHEREFORE, itis respectfully submitted that the Court grant Day & Nite's motion and issue an Order: A) pursuant to CPLR §3211(a)(1) and §3212, granting summary judgment in favor of DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., and dismissing the Second Third-Party Complaint and any and all claims as against DAY & NITEREFRIGERATION CORP. and KIMCO REFRIGERATION CORP. in their entirety and with prejudice; and B) alternatively, pursuant to CPLR §3025, granting DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. leave to amend their Verified Amended Answer to Second Third-Party Complaint to include cross-claims as against Third Third-Party Defendants B&G ELECTRICAL CONTRACTORS and ESS & VEE ACOUSTICAL CONTRACTORS, INC.; and C) awarding such other and further relief as the Court may deem just and proper. Dated: Woodbury, NY October 21, 2019 David A. LoRe 5 5 of 7 FILED: NEW YORK COUNTY CLERK 10/21/2019 12:27 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 474 RECEIVED NYSCEF: 10/21/2019 CERTIFICATE OF SERVICE David A. LoRe, the attorney of record for Defendants, DAY & NITE REFRIGERATION CORP. and K.I.M. CO. REFRIGERATION CORP. s/h/a KIMCO REFRIGERATION CORP., hereby certifies that on the date shown below, one copy of the foregoing REPLY AFFIRMATION was caused to be served by ECF upon: Nikolas E. Diamantis, Esq. SMITH MAZURE DIRECTOR WILKINS LAW OFFICES OF CHARLES J. SIEGEL YOUNG & YAGERMAN, P.C. Attorneys for Defendant/Third-Party Attorneys for Third Third-Party Defendant Defendant/ ESS & VEE ACOUSTICAL Second Third-Party Plaintiff CONTRACTORS, INC. BARING INDUSTRIES, INC. 111 John Street 7d¹ 125 Broad Street, Floor New York, NY 10038 New York, NY 10004 Dated: Woodbury, New York October 21, 2019 David A. LoRe 6 of 7 FILED: NEW YORK COUNTY CLERK 10/21/2019 12:27 PM INDEX NO. 158327/2013 NYSCEF DOC. NO. 474 RECEIVED NYSCEF: 10/21/2019 Index No. 158327 Year 2013 RJI No. Hon. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK KEVIN McGONIGAL, Plaintiff, -against- NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., Defendants. PLAZA CONSTRUCTION CORP., Third-Party Plaintiff, -against- BARING INDUSTRIES, INC., Third-Party Defendant/Second Third-Party Plaintiff, -against- DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP., Second Third-Party Defendants. AND A THIRD THIRD-PARTY ACTION REPLY AFFIRMATION MILBER MAKRIS PLOUSADIS & SEIDEN, LLP ATTORNEYS AT LAW Attorneysfor Second Third-Party Defendants DAY & NITE REFRIGERATION CORP. and KIMCO REFRIGERATION CORP. Office and Post OfficeAddress, Telephone 1000 Woodbury Road, Suite 402 Woodbury, NY 11797 (516) 712-4000 FileNo. 532-11347 To Signature (Rule 130-1.1-a) ................................................................. Printname beneath for Plaintiffs Attorney(s) Service of a copy of the within is hereby admitted. Dated, ................................................................. Attomey(s)for 7 of 7