SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF NEW YORI( X Index No. 153882/2013 RUTH RIVERA, Plaintiff, - against - THE CITY OF NEW YORK, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., 123 WILLIAM LLC AND THE CHETRIT GROUP, LLC and P & TII CONTRACTING CORP., Defendants. NOTICE OF EXPERT WITNESS EXCHANGE PURSUANT TO CPLR 3101(d) x THE CITY OF NEW YORK, Third-Party Plaintiffs, -against- P & TII CONTRACTING CORP., Third-Party Defendant x THE CITY OF NEW YORK, Second Third-Party Plaintiffs, -against- AMMANN & WHITNEY CONSULTING ENGINEERS, p.c. Second Third-Party Defendant. x Defendant/Third-Party Defendant, P & T II CONTRACTING CORP., by their attorneys, O'CONNOR, O'CONNOR, HINTZ & DEVENEY, as and for their expert witness response prirsuant to the CPLR 3101(d) hereinafter set forth as follows: FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013 NYSCEF DOC. NO. 413 RECEIVED NYSCEF: 01/10/2020 1 of 19
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SUPREME COURT OF THE ST ATE OF NEW YORK
COUNTY OF NEW YORI(
X Index No. 153882/2013
RUTH RIVERA,
Plaintiff,
- against -
THE CITY OF NEW YORK, CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC.,
123 WILLIAM LLC AND THE CHETRIT GROUP, LLC
and P & TII CONTRACTING CORP.,
Defendants.
NOTICE OF EXPERT
WITNESS EXCHANGE
PURSUANT TO
CPLR 3101(d)
x
THE CITY OF NEW YORK,
Third-Party Plaintiffs,
-against-
P & TII CONTRACTING CORP.,
Third-Party Defendant
x
THE CITY OF NEW YORK,
Second Third-Party Plaintiffs,
-against-
AMMANN & WHITNEY CONSULTING ENGINEERS, p.c.
Second Third-Party Defendant.
x
Defendant/Third-Party Defendant, P & T II CONTRACTING CORP., by their attorneys,
O'CONNOR, O'CONNOR, HINTZ & DEVENEY, as and for their expert witness response
prirsuant to the CPLR 3101(d) hereinafter set forth as follows:
FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013
NYSCEF DOC. NO. 413 RECEIVED NYSCEF: 01/10/2020
1 of 19
1. The Defendant/Third-Party Defendant P & T II CONTRACTING CORP. ("P&T")
expects to call Richard Khorigan, P.E., a professional engineer with Robson Forensic, 340 Willis
Avenue, Mineola, New York 11501, as an expert witness at the time of trial.
2. The facts and opinions upon which Mr. Khorigan is expected to testify are based
upon his review of the testimony, photographs, construction plans and records and his site
inspection of January 30, 2019, including his measurements
3. The grounds for Mr. Khorigan's opinions come from his education, training and
experience in the field of engineering and his review of the testimony, photographs, construction
plans and records and his site inspection.
4. Mr. Khorigan's qualifications are set forth in his curriculum vitae, a copy of which
is annexed hereto as Exhibit "A"
5. More specifically, the subject matter upon which Mr. Khorigan is presently
expected to testify includes his opinion that there was no dangerous or defective condition present
on August 29, 2012, on or aborit the public sidewalk and/or associated with the manhole cover or
casttng rtng, located in front of the premises located 123 Williams Street, New York, New York.
Further, Mr. Khorigan is expected to testify that there was no dangerous or defective condition
referable to P&T's work performed prior to August 29, 2012 at the aforesaid location. Mr.
Khorigan will also dispute the findings made by plaintiff's expert witness, Nicholas Belizzi, P.E.,
as summarized in Mr. Belizzi's affidavit, dated September 8, 2017, and in plaintiff's expert witness
exchange, dated April 4, 2017,
6. Mr. Khorigan will also testify that the manhole depicted in the photos exchanged
by plaintiff, which were allegedly taken by her attorney approximately one day after the accident
date, are not capable of providing an accurate measurement of the elevation difference
FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013
NYSCEF DOC. NO. 413 RECEIVED NYSCEF: 01/10/2020
2 of 19
contemporaneous with the accident date. Mr. Khorigan will testify that he disagrees that the photo
provided by plaintiffs expert (with tape measurements) depicts a dangerous elevation. Rather, he
will testify that the manner in which the alleged condition was measured is defective, since the
measuring tape does not go straight up vertically. The measuring tape clearly forms a "wave"
because it extends vertically from the ground and then shifts horizontally over the manhole cover
ring, before returrung to a vertical position, so it provides a completely false and misleading
impression that the elevation is in excess of one inch.
7. Moreover, Mr. Khorigan will testify that, since Mr. Belizzi's measurement was
done almost three years post-accident, it is unknown whether the same exact manhole was
inspected, but even if it was, it is unknown if it was inthe same exact condition when the inspection
was done compared to its condition at the time of the alleged accident. Mr. Khorigan will also
testify that it is completely unknown whether the subject manhole cover was still present at the
time of Mr. Belizzi's inspection, because it could have been interchanged with any one of the other
three nearby manhole covers or another cover.
8. Mr. Khorigan will further testify that his own measurements, which are depicted in
his own photographs taken during his own inspection, color copies of which are attached as Exhibit
"B" show an elevation between the ground and the top of the outer ring of approximately one
eighth of an inch, which does not pose a hazard,
9. Moreover, he will testify that, since P&T was only responsible for installation of
the outer ring, its work did not result in a dangerous condition under any scenario, and that it was
the sole responsibility of co-defendant CONSOLIDATED EDISON COMPANY OF NEW YORK,
INC. to ensure that its manhole cover was in a safe condition and properly installed, so even
assuming, arguendo, that the manhole cover itself was raised and posed a dangerous condition,
FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013
NYSCEF DOC. NO. 413 RECEIVED NYSCEF: 01/10/2020
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the ring was properly installed by P&T, and P&T was not responsible for any condition underneath
the cover, which may have caused any alleged elevation condition.
Date: Melville, New York
January 8, 2020
O'CONNOR, O'CONNOR, HINTZ & DEVENEY, LLP
By: IRA E. GOLDSTEIN, ESQ.
Attorneys for Defendant/
Third-Party Defendant
P & TII CONTRACTING CORP.
One Huntington Quadrangle, Suite ICIO
Melville, New York 11747
Tel: (631) 777-2330
FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013
NYSCEF DOC. NO. 413 RECEIVED NYSCEF: 01/10/2020
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TO:
LIPSIG, SHAPEY, MANUS & MOVERMAN, p.c.Attorney for Plaintiff
RUTH RIVERA
40 Fulton Street
New York, New York 10038
Tel: 212-285-3300
ZACHARY W. CARTER
CORPORATION COUNCIL
Attorneys for Defendant/Third Party Plaintiff
Second Third-Party Plaintiff
CITY OF NEW YORK
100 Church Street
New York, New York 10007
Tel: 212-788-0303
NADINE RIVELLESE
Attorneys for Defendant
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.
4 Irving Place
New York, New York 10003
Tel: 212-460-3355
CART AF ALSA , SLATTERY,
TURPIN & LENOFF
Attorneys for Defendants
123 WILLIAM LLC and
THE CHETRIT GROUP, LLC
165 Broadway, 28'h Floor
New York, New York 10006
Tel: 212-225-7700
Out on Summary Judgment
HANNUM FERETIC PREDERCAST &
MERLINO, LLC
Attorney for Second Third-Party Defendant,
AMMANN & WHITNEY CONSULTING
ENGINEERS, p,c.55 Broadway, Suite 202
New York, New York 10006
(212) 530-3900
FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013
NYSCEF DOC. NO. 413 RECEIVED NYSCEF: 01/10/2020
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Exhibit "A"
FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013
NYSCEF DOC. NO. 413 RECEIVED NYSCEF: 01/10/2020
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THE EXPERTS
Robsoib roreiisicRICHARD J. KHORIGAN, P.E.
C:ivil Engineer
PROFESSIONAL EXPERIENCE
2017 to
present
Robson Forensicl Inc.Associate
Provide technical investigations, analysis, reports, and testimony toward the resolution of
commercial and personal injury litigation involving highway and bridge construction,
construction management, construction safety, work zone traffic control, staged
construction, design and construction of temporary structures, layout and management of
crane and rigging operations, bridge demolition, steel erection, structural concrete
construction, concrete formwork, concrete and asphalt paving, and failure analysis in the
heavy and highway/bridge construction industries.
2015 to
present
EI Sol Contractlng & Construction Corp.
Project Manager
MTA Bridges & Tunnels- Contract #RK-65A
Bronx Plaza/ Structure Rehabi!itation At The RFK Bridge
Bronx, New York Contract Amount $225 million
2013 to
2014
Halmar Internatlonal
Estimator
Responsibilities included estimating and project management
1991 to
2013
DeFoe Corp.
Estimator 6/91-9/13
Responsibilities included cost estimating, arranging and obtaining subcontractor quotations,
and design of temporary structures for NYSDOT, NYCDOT, NJDOT, and New Jersey
Turnpike projects ranging from $5-250+ million
5/95-12/12Project Manager/Superintendent
New York State Department of Transportation Contract #D260072,
Gowanus Expressway - Emergency Repair of Route 1-278 Viaduct
Brooklyn, New York, Contract Amount $150 million
New York State Department of Transportation Contract #D257989,
Long Island Expressway Capacity Improvements - Exits 32 - 36, Nassau, New York
Contract Amount - $48 million (7/99 - 2/01).
New York State Department of Transportation Contract #D258652,
Long Island Expwy./Clearview Expwy. Interchange Improvements - Queens, New York,
Contract Amount - $33 million (6/01 - 9/03)
New York State Department of Transportation Contract #D256442,
Reconstruction of Prospect/Gowanus Expressways - Brooklyn, New York,
Contract Amount - $85 million (7/95 - 11/98)
1 2/1 2/18 1 www.robsonforensic.com
FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013
NYSCEF DOC. NO. 413 RECEIVED NYSCEF: 01/10/2020
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RobSOtl roitimie
RICHARD J. KHORIGAN, P.E.Civil Engineer
New York State Department of Transportation Contract #D259530,
Gowanus Expressway - Emergency Repair of Route 1-278 Viaduct
Brooklyn, New York, Contract Amount $28 million (7/04 - 11/06)
The Port Authority of New York and New Jersey Contract #WTC-404.161,
World Trade Center - Vesey Street Walkway Improvements - Manhattan, New York,
Contract Amount - $2 million (9/03 - 7/04)
Responsibilities included direct supervision of labor activities, computerized project
FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013
NYSCEF DOC. NO. 413 RECEIVED NYSCEF: 01/10/2020
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SUPREMECOURTOFTHESTATEOF NEWYORK
COUNTYOF NEWYORK
RUTH RIVERA,
- against -
Plaintiffs,
IndexNo.: 153882/2013
THECITYOFNEWYORK, CONSOLIDATED EDISONCOMPANYOF NEWYORK, INC., 123 WILLIAMLLC AND THE CHETRIT GROUP, LLC and P & T II CONTRACTING CORP.,
Defendants,
AND OTHER ACTIONS.
NOTICE OF EXPERT WITNESS EXCHANGE PURSUANT TO CPLR 3101(d)
O'CONNOR, O'CONNOR, HINTZ & DEVENEY, LLPAttorneys for Defendant/Third-Party Defendant, P & T II CONTRACTING CORP
One Huntington Quadrangle, Suite ICIOMelville,NewYork 11747-4415
(631)777-2330 Fax(631)777-2340(*No service byfax accepted.)
Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts ofNew YorkState, certifies that, upon information and belief and reasonable inquiry, the contentions contained in theannexed documents are not frivolous.
Dated:
Service of a copy of the withinDated:
is hereby admitted.
Attorney(s) jor
PLEASE TAKE NOTICE
NOTICE OF That the within is a (certified) true copy of aENTRY of the within named Court on , 20
entered in the office of the clerk
NOTICE OF
SETTLEMENTThat an Order of which the within is a true copy will be presentedfor settlement tothe Hon. one of the judges of the within named Court at on
Dated: Melville, New York
O'CONNOR, O'CONNOR, HINTZ & DEVENEY, LLPOne Huntington Quadrangle, Suite ICIO
Melville,NewYork 11747-4415
(631) 777-2330
FILED: NEW YORK COUNTY CLERK 01/10/2020 11:52 AM INDEX NO. 153882/2013