2020 11:52 am

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

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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



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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,



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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



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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


Tel: 212-788-0303

NADINE RIVELLESE

Attorneys for Defendant

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.

4 Irving Place


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


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


(212) 530-3900



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Exhibit "A"



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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


Long Island Expressway Capacity Improvements - Exits 32 - 36, Nassau, New York

Contract Amount - $48 million (7/99 - 2/01).


Long Island Expwy./Clearview Expwy. Interchange Improvements - Queens, New York,

Contract Amount - $33 million (6/01 - 9/03)


Reconstruction of Prospect/Gowanus Expressways - Brooklyn, New York,


1 2/1 2/18 1 www.robsonforensic.com



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RobSOtl roitimie

RICHARD J. KHORIGAN, P.E.Civil Engineer


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,


Responsibilities included direct supervision of labor activities, computerized project

scheduling, calculating quantities for payment, calculating job costs, ordering material, shop

drawing submittals, coordination of subcontractors, overseeing safety concerns on site,

representing company at project progress meetings, negotiating contract item overruns and

force account work.

Project Schedu/ing

Developed and maintained detailed, computerized CPM schedules using Primavera Project

Planner (P3 and P6) for the following projects:

Trumbull Street Viaduct - N.J. Turnpike Authority, Contract #W-6102, Contract Amount - $7

million

Rehabilitation of Brooklyn Bridge Ramp 'D' - New York State Dept. of Transportation,

Contract #D254990, Contract Amount - $8 million

Rehabilitation of On/Off Ramps - Throgs Neck Bridge - MTA Bridges & Tunnels,

Contract #TN-34, Contract Amount - $'l3 million

Reconstruction of Prospect/Gowanus Expressways - New York State Dept. of

Transportation, Contract #D256442, Contract Amount - $85 million

Long Island Expressway Capacity Improvements - New York State Dept. of Transportation,


Long Island Expwy./Clearview Expwy. Interchange Improvements - NYSDOT,


World Trade Center - Vesey Street Walkway Improvements - PANYNJ,

Contract #WTC-404.161, Contract Amount $2 million

Gowanus Expressway Emergency Repair of Route 1-278 Viaduct - NYSDOT,

Contract #D259530, Contract Amount $28 million

Gowanus Expressway Emergency Repair of Route 1-278 Viaduct - NYSDOT,

Contract #D260072, Contract Amount $150 million

Assistant Superintendent/Project Engineer

New Jersey Turnpike Authority Contract #W-6102, Widening of Northbound & Southbound

Trumbull St. Viaducts - Elizabeth, New Jersey, Contract Amount -

$7 million (5/92 - 12/93)

New York State Department of Transportation Contract #D254603, Rehabilitation of

Kosciuszko Bridge, Brooklyn & Queens, New York, Contract Amount - $18.5 million

(12/93 - 6/95)

1 2/1 2/1 B 2 www.robsonforensic.com



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Robson FoiemicRICHARD J. KHORIGAN, P.E.

Civil Engineer

2007 to

2008

Farmlngdale State College

Adjunct Professor

Taught two bachelor level courses in Construction Estimating and Project Management.

Work involved preparing and giving weekly lectures, preparing and administering

examinations, and overall grading of students in Bachelor Level courses.

1990 to

1991

Envirodyne Engineers, Inc.

C/v/l Engineer - Leve/ //

Performed design and analysis to rehabilitate existing bridge drainage at the Triborough

Bridge and Bronx-Whitestone Bridge. Worked in preparation of contract plans and

specifications for this project. Performed survey and baseline layout for extension of three

station platforms on Metro-North Lower Hudson Line.

1987 to

1990

Petracca and Sons, Inc.

Estimator

Worked in preparation of bids for heavy construction projects. Responsibilities included

quantity take-off, estimating, arranging and obtaining subcontractor quotations, earthwork

analysis, preparation of bid packages, project scheduling, design of temporary structures,

and preparation of shop drawings using Autocad. Projects included reconstruction of Long

Island Expressway Exits 4"l-44 - NYSDOT ($48 million), construction of Nassau Expressway

- NYSDOT ($19 million), reconstruction of FDR Drive - NYCDOT ($15 million)

1980 to

1987

Motlon Picture Studio

Mechanic - Full and Part-time

Worked on production of feature films and television commercials in movie studios and on

location. Job responsibilities included: lighting, operation of camera cranes and dollies, set

construction which included working from blueprints, and rigging for motion picture lighting

and photography.

PROFESSIONAL CREDENTIALS

Registered Professional Engineer: Maine, New York

1 2/1 2/18 3 www.robsonforensic.com



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THE EXPERT5

RobSOil rorensicRICHARD J. KHORIGAN, P.E.

Civil Engineer

EDUCATION

MBA, Master of Business Administration, St. John's University, Queens, New York, "1994

B.S., Civil Engineering, Pratt Institute, Brooklyn, New York, 1987

B.S., Physics, St. John's University, Queens, New York, 1987

Continuing Education:

OSHA 30 Hour Outreach Training for the Construction Industry

Completed Competent Person Training in Areas of Trenching/Excavation, Fall Protection,

Struck by, and Electrical

Completed OSHA 10 Hour Construction Safety and Health Training Course

PROFESSIONAL MEMBERSHIPS

American Society of Civil Engineers

12/1 2/1 B 4 www.robsonforensic.com



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Ex:hibit '&B"



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i .fi



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'4.:.



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..'l'la l--



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AFFIDAVIT OF SERVICE-BY MAIL & E-FILE

ST ATE OF NEW YORK )

) SS.:

COUNTY OF NASSAU )

ANN VIGHI, being duly sworn, deposes and says that deponent is not a party to

this action, is over 18 years of age and resides in North Babylon, New York.

That on the I@th day of January, 2020, deponent served the within NOTICE OF

EXPERT WITNESS EXCHANGE PURSUANT TO CPLR 3101(d) upon:

LIPSIG, SHAPEY, MANUS & MOVERMAN, p.c.Attorney for Plaintiff

RUTH RIVERA

40 Fulton Street


ZACHARY W. CARTER

CORPORATION COUNCIL

Attorneys for Defendant/Third Party Plaintiff

Second Third-Party Plaintiff

CITY OF NEW YORK

100 Church Street


NADINE RIVELLESE

Attorneys for Defendant

CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.

4 Irving Place


CART AF ALSA , SLATTERY,

TURPIN & LENOFF

Attorneys for Defendants

123 WILLIAM LLC and

THE CHETRIT GROUP, LLC

165 Broadway, 28'h Floor


Out on Summaiy Judgment



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HANNUM FERETIC PREDERCAST &

MERLINO, LLC

Attorney for Second Third-Party Defendant,

AMMANN & WHITNEY CONSULTING

ENGINEERS, p,c.55 Broadway, Suite 202


the attorneys for the respective parties, hereto at the address designated by them for that purpose, by

depositing a tnie copy of same enclosed in a postpaid properly addressed wrapper in an official

depository under the exclusive care and custody of the United States Post Office Department within

the State of New York.

ANN VIGHI

Sworn to before me this

I@tll day of January, 2020

Notary Public

NOTAPiY PBgmH", S"TA?:'O'F"NEW YOFIKN0. OlSA46d091l

COMMI'S'SIC')!J'j)glHE"S'NO5iBoE'A'\0, 20 .d=2



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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



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2020 11:52 am

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