Preview
FILED: NEW YORK COUNTY CLERK 10/11/2019 10:00 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 10/11/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------- X
KEVIN McGONIGAL, Motion Sequence No. 006
Plaintiff, Index No. 158327/13
-against -
AFFIRMATION
NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION IN PARTIAL
CORP. and BARING INDUSTRIES, INC., OPPOSITION
Defendants. Hon. Margaret 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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FILED: NEW YORK COUNTY CLERK 10/11/2019 10:00 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 10/11/2019
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 submit this affirmation in partial opposition to the judgmeñt cross-
respectfully summary
motion made on behalf of plaintiff KEVIN MCGONIGAL to the extent that itseeks summary judgment
pursuant to the Labor Law §240(1) cause of action as against the direct defendants. Itis noted that plaintiff
does not have any claims as against Day & Nite. Nevertheless, Day & Nite, as a third-party defendant,
has the same rights adverse to plaintiff as do the direct defendants/third-party plaintiffs, and has standing
to oppose plaintiff's claims on that basis. See, CPLR §1008; Prigent v. Friedman, M.S., 264 A.D.2d 568,
(15t
695 N.Y.S.2d 79 Dept. 1999); De Pan v. First Nat. Bank of Glens Falls, 98 A.D.2d 885, 470 N.Y.S.2d
869 (3d Dept. 1983).
3. As for the §240(1) claim, Day & Nite agrees with and respectfully adopts and incorporates
by reference herein the arguments raised by counsel for Third Third-Party Defendant B&G ELECTRICAL
CONTRACTORS in B&G's opposition papers to plaintiff's cross-motion. At the very least, triable issues
of fact exist as to whether the elevator pit is the type of elevation differential that the statute is intended to
cover.
4. As for the §241(6) claim, it is noted, arguendo, that even if there is a finding of liability
under the statute, none of the predicate Industrial Code provisions alleged to have been violated in
plaintiff's motion papers are applicable to Day & Nite's responsibilities at the site. Any responsibilities
delineated by those Code provisions fell upon other contractors. It isundisputed that Day & Nite was not
openings"
responsible for: the guarding of alleged "hazardous (§23-1.7(b)), the requirements for the
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FILED: NEW YORK COUNTY CLERK 10/11/2019 10:00 AM INDEX NO. 158327/2013
NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 10/11/2019
assembly of safety railings (§23-1.15), safety railings for scaffolds (§23-5.1(j)), tripping hazards and the
accumulation of dirt and debris (§23-1.7(e)), and §23-1.30 (proper illumination).
5. Finally, the Court is respectfully referred to Day & Nite's own motion papers, wherein Day
& Nite has moved for summary judgment and the dismissal of the Second Third-Party Complaint
primarily on the basis of the forum selection clause in its contract with Baring Industries, for a further
recitation of the facts and circumstances of the project and the alleged accident. Day & Nite maintains
that the Second Third-Party Complaint, and any and allclaims as against Day & Nite, must be dismissed
in their entirety as a matter of law.
WHEREFORE, it isrespectfully requested that the Court issue an Order: A) denying plaintiff's
cross-motion to the extent indicated above, and B) awarding such other and further relief as the Court
deems just and proper.
Dated: Woodbury, New York
October 11, 2019
David A. I'oRe, Esq.
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Preview
FILED: NEW YORK COUNTY CLERK 10/11/2019 10:00 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 10/11/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ------- X KEVIN McGONIGAL, Motion Sequence No. 006 Plaintiff, Index No. 158327/13 -against - AFFIRMATION NYY STEAK MANHATTAN, LLC, PLAZA CONSTRUCTION IN PARTIAL CORP. and BARING INDUSTRIES, INC., OPPOSITION Defendants. Hon. Margaret 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. --------------------------------- -------------------X 1 of 3 FILED: NEW YORK COUNTY CLERK 10/11/2019 10:00 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 10/11/2019 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 submit this affirmation in partial opposition to the judgmeñt cross- respectfully summary motion made on behalf of plaintiff KEVIN MCGONIGAL to the extent that itseeks summary judgment pursuant to the Labor Law §240(1) cause of action as against the direct defendants. Itis noted that plaintiff does not have any claims as against Day & Nite. Nevertheless, Day & Nite, as a third-party defendant, has the same rights adverse to plaintiff as do the direct defendants/third-party plaintiffs, and has standing to oppose plaintiff's claims on that basis. See, CPLR §1008; Prigent v. Friedman, M.S., 264 A.D.2d 568, (15t 695 N.Y.S.2d 79 Dept. 1999); De Pan v. First Nat. Bank of Glens Falls, 98 A.D.2d 885, 470 N.Y.S.2d 869 (3d Dept. 1983). 3. As for the §240(1) claim, Day & Nite agrees with and respectfully adopts and incorporates by reference herein the arguments raised by counsel for Third Third-Party Defendant B&G ELECTRICAL CONTRACTORS in B&G's opposition papers to plaintiff's cross-motion. At the very least, triable issues of fact exist as to whether the elevator pit is the type of elevation differential that the statute is intended to cover. 4. As for the §241(6) claim, it is noted, arguendo, that even if there is a finding of liability under the statute, none of the predicate Industrial Code provisions alleged to have been violated in plaintiff's motion papers are applicable to Day & Nite's responsibilities at the site. Any responsibilities delineated by those Code provisions fell upon other contractors. It isundisputed that Day & Nite was not openings" responsible for: the guarding of alleged "hazardous (§23-1.7(b)), the requirements for the 2 2 of 3 FILED: NEW YORK COUNTY CLERK 10/11/2019 10:00 AM INDEX NO. 158327/2013 NYSCEF DOC. NO. 457 RECEIVED NYSCEF: 10/11/2019 assembly of safety railings (§23-1.15), safety railings for scaffolds (§23-5.1(j)), tripping hazards and the accumulation of dirt and debris (§23-1.7(e)), and §23-1.30 (proper illumination). 5. Finally, the Court is respectfully referred to Day & Nite's own motion papers, wherein Day & Nite has moved for summary judgment and the dismissal of the Second Third-Party Complaint primarily on the basis of the forum selection clause in its contract with Baring Industries, for a further recitation of the facts and circumstances of the project and the alleged accident. Day & Nite maintains that the Second Third-Party Complaint, and any and allclaims as against Day & Nite, must be dismissed in their entirety as a matter of law. WHEREFORE, it isrespectfully requested that the Court issue an Order: A) denying plaintiff's cross-motion to the extent indicated above, and B) awarding such other and further relief as the Court deems just and proper. Dated: Woodbury, New York October 11, 2019 David A. I'oRe, Esq. 3 3 of 3