FILED: NEW YORK COUNTY CLERK 03/26/ :46 AM INDEX NO /2016 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 03/26/2018

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2 Page 1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ALISON MARMOLEJOS, Plaintiff, INDEX NO.: -against /2016 JAMES HEAL AND THE HALLEN CONSTRUCTION CO, INC., X Defendants. EXAMINATION BEFORE TRIAL of the Defendant, JAMES HEAL, taken pursuant to Order, held at Jay Deitz Court Reporting, 880 River Avenue, Bronx, New York, on, at 1:38 p.m., before a Notary Public of the State of New York. * * * + Gou rt -' fr <J3 I. Z,fE, 97 K JAN â fax"

3 Page A P P E A R A N C E S: 3 PENA & KAHN, PLLC. 4 Attorney for Plaintiff 1250 Waters Place 5 Bronx, New York BY: CHRISTOPHER MCGANNON, ESQ. 7 8 LAW OFFICE OF THOMAS K. MOORE 9 Attorney for Defendants 701 Westchester Avenue 10 White Plains, New York BY: HOWARD CODE, ESQ â fax:

4 Page STIPULATIONS 3 IT IS HEREBY STIPULATED AND AGREED 4 by and between(among) counsel for the respective 5 parties hereto, that: 6 All rights provided by the C. P.L.R., 7 including the right to object to any question, 8 except as to form, or to move to strike any 9 testimony at this(these) examination(s), are 10 reserved, and, in addition, the failure to object 11 to any question or to move to strike any testimony 12 at this(these) examination(s) shall not be a bar 13 or waiver to make such motion at, and is reserved 14 for the trial of this action; 15 IT IS FURTHER STIPULATED AND AGREED 16 by and between(among) counsel for the respective 17 parties hereto, that this(these) examination(s) 18 may be sworn to by the witness(es) being examined, 19 before a Notary Public other than the Notary 20 Public before whom this(these) examination(s) was 21 (were) begun; but the failure to do so, or to 22 return the original of this(these) examination(s) 23 to counsel, shall not be deemed a waiver of the 24 rights provided by Rules 3116 and 3117 of the 25 C.P.L.R., and shall be controlled thereby; fax:

5 Page IT IS FURTHER STIPULATED AND AGREED 3 by and between(among) counsel for the respective 4 parties hereto, that this(these) examination(s) 5 may be utilized for all purposes as provided by 6 the C.P.L.R.; 7 IT IS FURTHER STIPULATED AND AGREED 8 by and between(among) counsel for the respective 9 parties hereto, that the filing and certification 10 of the original of this(these) examination(s) 11 shall be and the same hereby are waived; 12 IT IS FURTHER STIPULATED AND AGREED 13 by and between(among) counsel for the respective 14 parties hereto, that a copy of the within 15 examination(s) shall be furnished to counsel 16 representing the witness(es) testifying, without 17 charge. 18 IT IS FURTHER STIPULATED AND AGREED 19 by and between(among) counsel for the respective 20 parties hereto, that all rights provided by the 21 C. P.L.R., and Part 221 of the Uniform Rules for 22 the Conduct of Depositions, including the right 23 to object to any question, except as to form, 24 or to move to strike any testimony at this 25 examination is reserved; and in addition, the â fax:

6 Page failure to object to any question or to move to 3 strike any testimony at this examination shall 4 not be a bar or waiver to make such motion at, 5 and is reserved to, the trial of this action fax: <88

7 Page J A M E S H E A L, the Defendant 3 herein, having been first duly sworn by Pamela 4 Carollo, a Notary Public of the State of New York, 5 was examined and testified as follows: 6 THE COURT REPORTER: Please state your 7 name for the record. 8 THE WITNESS: James Heal. 9 THE COURT REPORTER: Your address. 10 THE WITNESS: 388 Billiou, 11 B-I-L-L-I-O-U, Street, Staten Island, New 12 York EXAMINATION 14 BY MR. MCGANNON: 15 Q. Good afternoon, Mr. Heal. 16 A. How are you? 17 Q. Good, thank you. And you? 18 A. Good. 19 Q. My name is Chris McGannon, I am a 20 attorney with the law firm Pena & Khan PLLC, the 21 attorneys for the plaintiff in this matter, Alison 22 Marmolejos. I will ask you a series of questions 23 regarding a motor vehicle accident in which you 24 were involved December 7th A. Okay fax. ""

8 Page 7 1 -Heal- Healâ 2 Q. If you don't understand any of my 3 questions, please let me know and I will rephrase 4 them. If you don't hear the question, let me know 5 and we will have it repeated for you. I ask that 6 you keep all your response verbal so the reporter 7 can record them. As great as she is, she is not 8 permitted to interpret nods of the head or shakes 9 of the head, so please keep your answers verbal. 10 Also, please wait for me to finish my question 11 before you start your response. This way the 12 reporter can take one person at a time and we get 13 a clear and accurate record. If you need a break 14 for any reason, let me know and I will accommodate 15 you. The only exception is if I ask you a 16 question and you have not yet provided an answer I' 17 to it, I'll insist that you answer that question 18 before you take your break. Otherwise, you can 19 take a break for whatever reason. 20 A. Okay. 21 MR. MCGANNON: Off the record. 22 (Discussion held off the record.) 23 BY MR. MCGANNON: 24 Q. Sir, do you posses a New York state 25 driver's license? ia!<:

9 Page 8 1 -Heal- 2 A. Yes. 3 Q. And what is the class of the license? 4 A. D, you want know look? 5 Q. That's okay. And what type of vehicles 6 are you permitted to drive under your current classification' 7 classification? 8 A. I don't understand the question. With the 9 company or driving right now? 10 Q. Do you have a license classification 11 which permits you to operate commercial vehicles? 12 A. No. 13 Q. Do you have a license classification 14 that permits you to separate construction 15 vehicles? 16 A. The backhoe. 17 Q. What classification permits you to do 18 that? 19 A. Well, from what I know, I am only supposed 20 to have a driver's license. It's not like. 21 Q. At the present time do you have any 22 restrictions on your driver's license A. No. 24 Q. -- for corrective lenses, hearing aids, 25 anything like that? fax:

10 Page 9 1 -Heal- 2 A. No. 3 Q. Back in December of 2015, did you have 4 any restrictions on your driver's license? 5 A. No. 6 Q. Prior December 7th 2015 had your 7 driver's license ever been suspend or revoked or 8 any reason? 9 A. No. 10. Q. What is your highest level of education? 11 A. High school, 12th. 12 Q. Where did you go? 13 A. Tonwell School, Staten Island. 14 Q. Do you hold any professional 15 certificates or licenses? 16 A. Certificates to do to -- driving 17 certificates, no. 18 Q. Okay. 19 MR. CODE: Other than license? 20 THE WITNESS: Yes. 21 BY MR. MCGANNON: 22 Q. Who are you employed by? 23 A. Hallen Construction. 24 Q. Where are they located? 25 A. I think it's they are in Island ] iax:

11 Page Heal- 2 Park, that's where their main yard is. But I come 3 from Maspeth, there is two different addresses. 4 Island Park. I don't know the exact address, I 5 think it's the Sunrise Highway, Island Park, but 6 where I come out of Maspeth in Queens. 7 Q. Is Hallen Construction located on Austin 8 Boulevard in Island Park? 9 A. Yes. 10 Q. Okay. Is that the main yard? 11 A. That's the main -- yes, that's the main 12 yard. 13 Q. And at the current time, at what 14 location do you work? 15 A. Right now? 16 Q. Yes. 17 A. What do you mean, where I am parked? 18 MR. CODE: Where do you report to work you' 19 in the morning if re not going to a 20 site? 21 THE WITNESS: Green Point in Brooklyn. 22 BY MR. CODE: 23 Q. In December of 2015 out of what Hallen 24 Construction location did you work? 25 A. That was Maspeth, I think it's -- I am not fax:

12 Page Heal- 2 really sure. 3 MR. CODE: That's okay. 4 THE WITNESS: It was in Maspeth, 5 Queens. 6 BY MR. MCGANNON: 7 Q. What was the roadway or the street 8 address? 9 A. That I was driving on when the accident 10 happened? 11 Q. No, where Hallen Construction is 12 located. 13 A. I think off the Midtown Expressway. 14 Q. Long Island Expressway? 15 A. I think -- I don't think -- I don't know 16 the exact -- I can get it for you. I don't know the 17 name, it's right off the expressway. 18 Q. It's okay. Sir, were you involved in a 19 motor vehicle accident on December 7th 2015? 20 A. Yes. 21 Q. And do you remember what day of the week 22 it was? 23 A. I believe it was during the week. I don't 24 know what day it was. I don't remember what day. 25 Q. At approximately what time of day did fax:

13 Page Heal- 2 the accident occur? 3 A. Around 7:30 a.m. 4 Q. As of that day were you employed by 5 Hallen Construction? 6 A. Yes. 7 Q. And at the time of the accident were you 8 in the course of your employment with Hallen 9 Construction? 10 A. Yes. 11 Q. At the time of the accident on 12 December 7th 2015, were you working a particular 13 job for Hallen Construction? 14 A. Yes. 15 Q. And where was that located? 16 A. I don't remember the address. 17 Q. Was it in the borough of Brooklyn? 18 A. I don't remember. you' 19 Q. The accident in which re involved on 20 December 7th 2015, where did that occur? 21 A. If I remember, it's off the Nostrand 22 Avenue and I think Pacific. 23 Q. At the time of the accident were you the 24 operator of a motor vehicle? 25 A. Yes fax:

14 Page Heal- 2 Q. And what was the year, make, and model 3 of the vehicle that you were operating at the time 4 of the accident on December 7th 2015? 5 A. I don't know the year. It was a backhoe, rubber tire backhoe. 7 Q. What significances does the number 710? 8 A. It's -- there's different sizes, 9 different -- they can be a 710, it can be a 310, a ; our company drives Q. Does the 710 have any correlation to the 12 size of the engine? 13 A. Possible. 14 Q. Does the 710 have any correlation with 15 the weight of the vehicle? 16 A. Yes. 17 Q. That 710 backhoe that you were operating 18 at the time of the accident on December 7th 2015, 19 what was the approximate weight of that vehicle? 20 MR. CODE: Can you estimate? Don't 21 guess. 22 THE WITNESS: I estimate about 23 25,000 pounds. 24 BY MR. MCGANNON: 25 Q. At the time of the accident on fax: â 4488

15 Page 14 t 1 -Heal- 2 December 7th 2015, were you alone in the vehicle 3 or did you have a passenger? 4 A. Alone. 5 Q. In the vicinity of the accident on 6 December 7th 2017, were you the only employee of 7 Hallen Construction operating the vehicle in that 8 area? 9 A. I don't know. 10 Q. What I am trying to ask you, were you 11 following another Hallen Construction vehicle or 12 was there another vehicle following you or 13 something else? 14 A. No. 15 Q. Prior to the accident occurring on 16 December 7th 2015, where were you coming from with 17 the 710 backhoe? 18 A. I was coming from my yard in Maspeth, 19 Queens. 20 Q. What was your intended destination if 21 the accident hadn't occurred? 22 A. I don't know the destination, but I was on 23 my way to go to work. 24 Q. Do you know if you were heading to the 25 location in Brooklyn or were you heading to a fax:

16 Page Heal- 2 location in another borough or something else? 3 A. I don't know if -- is Nostrand Avenue 4 Brooklyn or Queens? Yes, Brooklyn. I was in 5 Brooklyn. 6 MR. MCGANNON: Off the record. 7 (Discussion held off the record.) 8 BY MR. MCGANNON: 9 Q. What was your work schedule for that 10 day? 11 A. Normally my work schedule is 7:00 to 4: Q. 7:00 a.m. to 4:00 p.m.? 13 A. Yes. 14 Q. Monday through Friday? 15 A. Monday through Friday. 16 Q. The work location to which you were 17 driving prior to the happening of the accident, 18 had you driven that route before? 19 A. Yes. 20 Q. And approximately how many times in the 21 prior two weeks had you driven that route? 22 A. I don't know. 23 Q. That area where the accident happened, 24 were you familiar with that location? 25 A. Yes iax:

17 Page 16! 1 -Heal- 2 Q. Was that from your prior trips through 3 it? 4 A. Yes. 5 Q. The 710 backhoe that you were operating 6 at the time of the accident, where did you obtain 7 the vehicle that day? 8 A. Where did I get it from? Maspeth, Queens. 9 Q. Do you know the distance between 10 Maspeth, Queens and the place where the accident 11 happened in Brooklyn? 12 A. No. 13 Q. Can you approximate the number of miles? 14 A. I have no idea. 15 Q. How long did it take you to drive? 16 A. 20 minutes. 17 Q. The 710 backhoe that you were operating 18 on the day of the accident, did that have any type 19 of governor on it? 20 A. Governor, meaning like an exhaust pipe? 21 Q. Anything that would control the speed of 22 the vehicle? 23 MR. CODE: Off the record. 24 (Discussion held off the record.) 25 THE WITNESS: I don't understand the fax:

18 â Page Heal- 2 question. 3 BY MR. MCGANNON: 4 Q. The 710 backhoe that you were operating 5 at the time of the accident, did that have a 6 maximum speed? 7 A. 24 miles per hour. 8 Q. Was there anything attached to that 9 vehicle that limited the speed to that specific 10 miles per hour? 11 A. No. 12 Q. Now, the 710 backhoe that you were 13 operating at the time of the accident, what was 14 located on the very front of that vehicle? 15 A. Front bucket. 16 Q. What are the dimensions of that bucket? 17 A. I don't know what the exact dimensions 18 are. From the two front tires is the width of the 19 bucket. I don't know the exact dimensions. I mean, 20 usually -- I don't know. I don't know. 21 MR. CODE: The bucket is as wide as vehicle' 22 the rest of the vehicle? 23 THE WITNESS: If you look at the 24 machine, it has two front tires, the bucket 25 goes out just the width of the two front fax:

19 Page Heal- 2 tires; it doesn't go past the two front 3 tires. 4 BY MR. MCGANNON: 5 Q. And from the bottom edge of the bucket 6 to the top edge of the bucket, how high is that? 7 A. Approximately? 8 Q. Yes. 9 A. Three feet. 10 Q. The 710 backhoe that you operated on the 11 day of the accident, what was located on the back 12 of it? 13 A. The digger part, the backhoe part. 14 Q. Was that attached at the time of the 15 accident? 16 A. It was all attached. 17 Q. Is it detachable in any way? 18 A. No. 19 Q. And the same with the front bucket, is 20 that detachable in any way? 21 A. No. 22 Q. Prior to the accident occurring on 23 December 7th 2015, had you ever operated that 24 particular backhoe on prior occasions? 25 A. Yes fax:

20 Page Heal- 2 Q. And approximately how many occasions? 3 you' A. Meaning other jobs, is that what re 4 s aying? 5 Q. Sure. 6 A. It's the same back hoe I run all the time. 7 Q. Did that particular backhoe have any 8 particular Hallen Construction designation that 9 was -- that was the one backhoe or that was five 10 backhoe or the A backhoe or the B backhoe? 11 A. Well, I will explain it to you, every 12 operator has their own machine, it's my machine; no 13 one uses it but me. 14 Q. For how long had you been using that 15 particular backhoe prior to the time of the 16 accident, weeks, months, years? 17 A. I don't know. I don't know how many 18 years. 19 MR. CODE: More than one year? 20 THE WITNESS: More than one year. 21 BY MR. MCGANNON: 22 Q. Okay. Prior to the accident 23 occurring -- strike that. 24 Prior to December 7th 2015, did you ever 25 experience any mechanical difficulties with that fax:

21 Page 20 November 2 9, Heal- 2 vehicle? 3 A. No. 4 Q. Did you ever have any problems with the 5 steering? 6 A. No. 7 Q. Did you ever have any problems with the 8 transmission? 9 A. No. 10 Q. Did you ever have any problems with the 11 braking mechanism? 12 A. No. 13 Q. On the day of accident, but before the 14 accident occurred, did you have any problems with 15 the vehicle? 16 A. No. 17 Q. Any problems with the steering? 18 A. No. 19 Q. Transmission? 20 A. No. 21 Q. Braking? 22 A. No. 23 Q. Prior to December 7th 2015, had that backhoe been involved in a prior motor vehicle 25 accident? S 1S ax: 16-67S-44SS

22 Page Heal- 2 A. I don't remember. 3 Q. Prior to the accident on December 7th , was there any preexisting body damage on any 5 portion of that backhoe? 6 A. No. 7 Q. Prior to the moment of the accident on 8 December 7th 2015, was there anything in the front 9 bucket. 10 A. No. 11 Q. Were you carrying any type of supplies, 12 equipment, materials on any portion of that 13 backhoe immediately prior to the happening of the 14 accident? 15 A. No. 16 Q. The front windshield for that backhoe, was that removable? 18 A. No. 19 Q. Does it open in any way? 20 A. No. 21 Q. What was the condition of that front 22 windshield prior to the accident occurring on 23 December 7th 2015? 24 A. It was in good continue. 25 Q. Was it clean? fax: A(88

23 Page Heal- 2 A. Yes. 3 Q. What were the weather conditions like at 4 the time of the accident on December 7th 2015? 5 A. It was sunny, dry, that was it, nice day. 6 Q. At the time of the accident was your 7 vehicle on Nostrand Avenue? 8 A. Yes. 9 Q. Prior to the happening of the accident, 10 were you facing an intersection involving Nostrand 11 Avenue? 12 A. Yes. 13 Q. Okay. Do you remember the name of the 14 cross street that ran across Nostrand Avenue ahead 15 of you? 16 A. I thought it was Pacific Avenue. 17 Q. If I mentioned Park Place? 18 A. Yes, that sounds familiar. 19 Q. Okay. At the place where the accident 20 happened, is Nostrand Avenue a one-way or two-way 21 street? 22 A. One-way. 23 Q. And how many lanes were there for 24 vehicles to travel in that one direction? 25 A. I think two fax:

24 Page Heal- 2 Q. Was there parking lanes on either side? 3 A. There is a parking lane on the left. I 4 believe there was a parking lane on the left. 5 Q. Okay. Of those two travel lanes, was 6 one of those lanes a bus lane? 7 A. Yes. 8 Q. Was that the lane on the right? 9 A. That was the lane on the right. 10 Q. On the other side of that bus lane on 11 the right of the bus lane, was there any parking 12 lane there? 13 A. I don't remember. 14 Q. At the intersection of Nostrand Avenue 15 and Park Place was there a traffic light? 16 A. Yes. 17 Q. Was it a standard red, yellow, green? 18 A. Yes. 19 Q. For how long had you been traveling on 20 Nostrand Avenue prior to the happening of the 21 accident on December 7th 2015? 22 A. Say about ten minutes. 23 Q. Okay. And can you estimate the distance 24 in blocks or miles or anything? 25 A. I don't know distance or miles. I just fax:

25 Page 24 B 1 -Heal- 2 know that I came off of Flushing Avenue and made a 3 left on Nostrand and headed down that way. 4 MR. CODE: Off the record. 5 (Discussion held off the record.) 6 BY MR. MCGANNON: 7 Q. The location to which you were traveling 8 did you have to be there at a particular time? 9 A. Can I explain. 10 Q. Sure. 11 A. Sometimes jobs started at 7:00, sometimes 12 a job started at 9:00. I don't remember what time 13 the job started. That's usually what happens 14 sometimes. 15 Q. On that particular day were you running 16 early, were you running on time, were you running 17 late, or something else? 18 A. I was running on time. 19 Q. The accident in which you were involved 20 on December 7th 2015, did that accident involve 21 the 710 backhoe and another motor vehicle? 22 A. Yes. 23 Q. And can you describe that other motor 24 vehicle for me. 25 A. If I remember, I know it was a white SUV. Jay Deitz Associates - Court Report ing Services B B fax: B-44BB

26 Page Heal- 2 It was -- I don't know if it was brand new, but it 3 was a MDX Acura I remember. 4 Q. After you made turn from Flushing onto 5 Nostrand, where along Nostrand did you first 6 observe the white Acura MDX prior to the accident? 7 A. I didn't see it until we got to where we 8 had to go. 9 Q. Did you observe that vehicle at any time 10 prior to the happening of the accident on 11 December 7th 2015? you' 12 A. Did I see it before it happened re 13 saying? 14 Q. Yes. 15 A. No. I only seen it when I got to the 16 light, to that intersection that I was at. 17 Q. Okay. Now, the light at the 18 intersection of Nostrand Avenue and Park Place, 19 when you first saw that traffic light, was your 20 vehicle in motion or was it stopped? 21 A. I was stopped. 22 Q. For what reason were you stopped? 23 A. I was stopped because of a red light. 24 Q. Okay. What distance were you from the 25 intersection when you were stopped? fax: â 4488

27 Page Heal- 2 A. Can I explain? The other vehicle was in 3 front of me, I don't know the distance. 4 Q. Okay. How many vehicles were between 5 your 710 backhoe and the intersection -- 6 A. One. 7 Q. -- when you were stopped? 8 A. Sorry, one. 9 Q. Okay. And was that the vehicle with 10 which you ultimately had contact? 11 A. Yes. 12 Q. Okay. At some point in time you 13 observed the red light and you brought your 14 vehicle to a stop? 15 A. Yes. 16 Q. At that time, was the white Acura MDX 17 stopped in front of you? 18 A. Yes. 19 Q. When you were stopped and the white 20 Acura was stopped, what distance separated the two 21 of you? 22 A. Say about 3 feet, 3 or 4 feet. 23 Q. At some point in time did your vehicle 24 go into motion prior to the happening of the 25 accident? LJ fax:

28 Page Heal- 2 A. Meaning did it go into drive? 3 Q. What I mean is, prior to -- you were 4 stopped? 5 A. Right. 6 Q. Okay. At some point in time did your 7 vehicle go into motion prior to the happening of 8 the accident? 9 A. Yes. 10 Q. At that time was the white Acura MDX 11 still stopped? 12 A. Yes. 13 Q. What caused your vehicle to go into of' 14 motion prior to the happening of the accident of? 15 A. My foot rolled off the brake. 16 Q. Immediately prior to that moment, were 17 you eating or drinking anything inside the cab of 18 the backhoe? 19 A. No. 20 Q. Did you have a cell phone with you? 21 A. Yes. 22 Q. Were you on the cell phone or using it 23 in any manner at the time that your foot rolled 24 off the brake? 25 A. No fax:

29 Page 28 B 1 -Heal- 2 Q. What type of transmission does that backhoe have? 4 A. I don't know. 5 Q. Is it an automatic transmission or a 6 manual transmission? 7 MR. CODE: Is it -- 8 THE WITNESS: Does it automatically go 9 into gears you mean? 10 MR. CODE: Is there a clutch? 11 THE WITNESS: No, no clutch, just it doesn't drive and it automatically turns 13 into gear, you have to turn the nob. The 14 handle goes into first, second, third, 15 forth, but we leave it in fourth when we 16 are driving. 17 BY MR. MCGANNON: 18 Q. At the time that you were stopped prior 19 to the happening of the accident, was the backhoe 20 in gear? 21 A. Yes. 22 Q. And in what gear was it? 23 A. Four. 24 Q. And does each of those -- how many gears 25 does the transmission have on that 710 backhoe? fax: â 4488

30 Page 29 Novembe r 2 9, Heal- 2 A. It has f our. 3 Q. Okay. What is the range of speed for 4 that fourth gear? 5 A. Meaning how fast was it going in fourth 6 gear? 7 Q. Right. 8 A. A couple of miles. 9 Q. As the gears go down in number does the 10 range of speed increase? 11 A. No, it decreases. 12 Q. It decreases? 13 A. Yes. 14 Q. Can you please take me through the 15 sequence of gears from starting the vehicle in 16 motion up to the last gear. Would you start in 17 first gear and work your way up to fourth gear or 18 something else? 19 A. No, I leave it in fourth gear and just 20 take off at fourth gear. 21 Q. Now, immediately prior to the accident 22 on December 7th 2015 you were in forth gear? 23 A. Yes. 24 Q. Just releasing the brake would allow the 25 backhoe to move while it was in fourth gear? fax:

31 Page Heal- 2 A. Yes. 3 Q. Okay. 4 MR. CODE: Can I ask a question? 5 MR. MCGANNON: Sure. 6 EXAMINATION 7 BY MR. CODE: 8 Q. What is the highest? 9 A. Four. 10 Q. So is there zero or. 11 A. No, the machine -- when you have it in 12 neutral when you start the machine. The gears are 13 for -- you' like for instance, if re moving around, 14 moving plates and stuff, you put it in second gear. 15 Q. So one to four? 16 A. It goes one to four. 17 MR. CODE: Thank you that's all. 18 EXAMINATION 19 BY MR. MCGANNON: you' 20 Q. And if re driving on city streets 21 such as Nostrand Avenue, would you always be 22 driving on fourth gear? 23 A. Yes. 24 Q. Would you ever use the lower gears? 25 A. No far.:

32 Page Heal- 2 Q. Would the lower gears be used for 3 certain types of work involving the backhoe? 4 A. Yes. 5 Q. Okay. And what would the first gear be 6 used for? 7 A. First gear is -- I really don't use first 8 gear, that runs really, really slow. I run it in 9 second when I am doing the job, considering moving I 10 from A to B or moving pipe or plates or stuff like 11 that. When it comes to driving, 1 put it in fourth. 12 Q. So driving consistently over, say 13 asphalt, you would use four? 14 A. Yes. 15 Q. Okay. What would you use the third gear 16 for? 17 A. Pretty much I wouldn't use third gear. 18 MR. MCGANNON: Off the record. 19 (Discussion held off the record.) 20 BY MR. MCGANNON: 21 Q. Mr. Heal, did there come a time that 22 your 710 backhoe made contact with the Acura MDX? 23 A. Yes. 24 Q. What portion of the backhoe was involved 25 in the contact? â â fax:

33 Page Heal- 2 A. Front bucket. 3 Q. And looking that the front bucket from 4 the driver's seat, was it the middle of the front 5 bucket, the left side, the right side, or 6 something else? 7 A. It was the whole bucket, the whole front 8 bucket. 9 Q. Was there one contact or more than one 10 contact involving the front bucket and the Acura? 11 A. One contact. 12 Q. Did you actually see that contact 13 between the front bucket and the Acura? 14 A. Yes. 15 Q. What portion was the Acura did the front 16 bucket make contact with? 17 A. In the rear of the SUV, it hit in between 18 the plate and I guess the back -- back -- struck the 19 back trunk opens like this, so it hit right in the 20 middle of the plate. And from both ends made a big 21 crease mark, a straight line. And the edge of the 22 front bucket hit the back part of the SUV. 23 Q. Okay. When you say it makes a crease 24 across the back of the SUV, was the crease on the 25 hatch or the door? fax:

34 Page Heal- 2 A. Yes. 3 Q. And when you say it was between the 4 plate and the door -- strike that. 5 The license plate on the back of the 6 Acura, was that mounted on the hatch door or 7 mounted on the bumper? 8 A. It was mounted on the door. 9 Q. Was the crease above the license plate 10 on the backdoor of the Acura? 11 A. I believe the crease was in the middle, 12 about the middle of the license plate. 13 Q. At the time of that contact the Acura 14 had been stopped, is that correct? 15 A. Yes. 16 Q. Immediately following the contact 17 between the front bucket of the 710 backhoe and 18 the rear of the white Acura MDX, did your backhoe 19 continue to move forward? 20 A. After it hit it? 21 Q. Yes. 22 A. No. 23 Q. Did it stop because you applied the 24 brake or something else? 25 A. It stopped because I applied the brake. â fax:

35 Page Heal- 2 Q. Immediately following the accident 3 between the front bucket of your 710 backhoe and 4 the rear of the Acura MDX, did the Acura MDX move 5 forward? 6 A. A little bit. 7 Q. Was there a crosswalk that extended 8 across Nostrand Avenue before it's intersection 9 with Park Place? 10 A. Yes. 11 Q. Okay. When everything came to a stop 12 where was your backhoe in relation to the 13 crosswalk? 14 A. My backhoe was way behind it. 15 Q. When you say, "way behind it," can you 16 estimate the distance in any way? 17 A. It was the length of her car. 18 Q. Okay. 19 A. I don't know how long her car was. 20 Q. Where did the Acura MDX come to a stop 21 following the impact? 22 A. Before the impact or after? 23 Q. After the impact? 24 A. After the impact it really didn't go that 25 far, it just got bumped a little bit into the fax:

36 Page Heal- 2 intersection, just before the intersection. 3 Q. You mentioned two things, you mentioned 4 into the intersection and you mentioned before the 5 intersection, which one? 6 A. I would say just before the intersection. 7 Q. Did the contact cause the Acura to move 8 into or through the crosswalk? 9 A. No. 10 Q. Following the accident, was any portion 11 of that Acura in the crosswalk? 12 A. Maybe a little bit. 13 Q. In connection with Hallen Construction, 14 did you have practice pursuant to which you would 15 carry a camera in the cab of the backhoe? 16 A. Meaning they give me a camera? 17 Q. Yes. 18 A. No. 19 Q. Did the company give you a camera to 20 keep with the backhoe? 21 A. No. 22 Q. In the course of your work as a backhoe 23 operator, did you ever have the occasion of taking 24 photographs at a work site? 25 A. With my phone? fax:

37 Page Heal- 2 Q. With a camera. 3 A. No. 4 Q. Okay. In connection with your work as a 5 backhoe operator for Hallen Construction, did you 6 ever have the occasion of using your cell phone to 7 take photographs of conditions at a work site? 8 A. Yes. 9 Q. Immediately following the accident of 10 December 7th 2015 did you take any photographs at 11 the scene of the accident? 12 A. Yes. 13 Q. Okay. And how did you do that? 14 A. I got out of the machine and I took 15 pictures with my phone. 16 Q. Approximately how many photographs did 17 you take? 18 A. It could have been four or five. 19 Q. And of what object or objects did you 20 take photographs of? 21 A. The car, the damage of it. The location 22 of where I was at. I don't know every little 23 picture I did, but I took a couple of pictures, four 24 or five pictures. 25 Q. Did you ever take any photographs of the fax:

38 Page Heal- Healâ 2 person you understood to be the driver of the 3 Acura? 4 A. Picture of the person, no. 5 Q. Can you describe the person or persons 6 that were in the Acura at the time of the 7 accident? 8 A. It was one female on the driver's side. 9 Q. Can you describe her for me? 10 A. Tall, skinny, black woman, I don't know 11 how to explain. 12 Q. Did you see her here in this building 13 today? 14 A. No. 15 Q. Okay. The photographs that you took at 16 the accident location, what did you do with those 17 photographs? 18 A. I sent the pictures to my safety directer. 19 Q. And what is the name of that person? 20 A. Johnny May. 21 Q. Johnny May? 22 A. Yes. 23 Q. May? 24 A. M-A-Y. 25 Q. He is your safety fax:

39 Page Heal- 2 A. Safety -- any time we have an accident, he 3 is the safety guy we talk to at that time. 4 Q. And what is his official title? 5 A. I don't know. I thought it was safety. 6 Q. Is he still employed by Hallen 7 Construction? 8 A. Yes. 9 Q. Out of what location? 10 A. Maspeth, Queens. 11 Q. And how did you transmit those 12 photographs, did you text them, did you 13 them, or something else? 14 A. It was or text. 15 Q. Okay. And when did you do that on the 16 date of the accident or some other time? 17 A. Day of the accident. 18 Q. Did you ever provide those photographs 19 to anyone at Travelers Insurance Company? 20 MR. CODE: Note my objection. 21 But you can answer. 22 THE WITNESS: Who is Travelers? 23 MR. CODE: Your insurance company. 24 THE WITNESS: No, no fax:

40 Page Heal- 2 BY MR. MCGANNON: 3 Q. Did you ever transmit those photographs 4 with your counsel? 5 A. No. 6 MR. CODE: Note my objection. 7 But you can answer. 8 THE WITNESS: No. 9 MR. MCGANNON: Off the record. 10 (Discussion held off the record.) 11 BY MR. MCGANNON: 12 Q. Besides sending those to Johnny May at 13 Hallen Construction, did you send those 14 photographs to anyone else? 15 A. No. 16 Q. Do you still have those photographs? 17 A. I am not sure, I can look. 18 Q. What I am going to ask you to do and 19 with guidance from counsel, I am going to ask that 20 you search for those photographs. And that if you 21 locate them, provide them to counsel. 22 A. No problem. 23 MR. CODE: Off the record. 24 (Discussion held off the record.) fax:

41 Page Heal- 2 BY MR. MCGANNON: 3 Q. Besides sending those photographs to 4 Mr. May, have you sent those photographs to 5 anywhere else? 6 A. No. 7 Q. Have you ever printed out those 8 photographs? 9 A. No. 10 Q. Immediately following the accident, did 11 you remain at the scene? 12 A. For a period of time, yes. 13 Q. Okay. Immediately following the 14 accident, what is the next thing you did? 15 MR. CODE: After he left you mean or 16 just at the scene? 17 BY MR. MCGANNON: 18 Q. The accident occurs? 19 A. Right. 20 Q. The vehicles come to a stop? 21 A. Right. 22 Q. What is the next thing you do? 23 A. I got out to see if she was okay. 24 Q. Did you get out of the 710 backhoe? 25 A. Yes fax:

42 Page Heal- 2 Q. Did you approach her vehicle? 3 A. Yes. 4 Q. And at that time was she still in the 5 vehicle or was she out of the vehicle? 6 A. She was in the vehicle. 7 Q. And what did you say to her? 8 A. I just asked if she was okay. 9 Q. Okay. And did you apologize for 10 striking her vehicle? 11 A. I don't remember if I did or not. I am 12 sure I did. 13 Q. You asked her how she was doing? 14 A. Yes. 15 Q. And how did she respond? 16 A. I don't remember what she said. 17 Q. Are you aware of any witnesses to the 18 accident? 19 A. No. 20 Q. Other than that exchange that you had 21 with the driver A. Okay. 23 Q. -- right after the accident, did you 24 have any other exchange with her A. No. â !!! 00 fax:

43 I Page Heal- 2 Q. -- where you either talked about the 3 happening of the accident or talked about her 4 physical condition? 5 A. No. 6 Q. Okay. Did police arrive at the scene? 7 A. Yes, they did. 8 Q. Do you know who called the them to the 9 scene? 10 A. I don't know if it was me or her, I don't 11 remember. 12 Q. Before you left the cab of the backhoe, 13 did you place any calls to anyone? 14 A. I might have placed a call to my foreman 15 to let him know what happened. 16 Q. Who was your foreman that day? 17 A. Jan Daly. 18 Q. J-A-N? â 19 A. J-A-N, D-A-L-Y. 20 Q. It's ' Jan, it's female? 21 A. Male. 22 Q. Jan is a man? 23 MR. MCGANNON: Off the record. 24 (Discussion held off the record.) fax:

44 Page Heal- 2 BY MR. MCGANNON: 3 Q. When you called your foreman Jan Daly, 4 what did you tell him? 5 A. I told him I was in an accident. 6 Q. Did you say anything else? 7 A. I just explained that I was in an accident 8 and just giving him a heads up of what was going on. 9 Q. Okay. And when the police arrived at 10 the scene, did you speak with them? 11 A. Yes. 12 Q. And when you were speaking with the 13 police where was the driver of the Acura? 14 A. I don't know. 15 Q. When the police arrived, did the police 16 have the driver of the Acura move her vehicle? 17 A. I don't remember. 18 Q. When the police arrived, did they have 19 you move the backhoe? 20 A. I don't remember. 21 Q. Okay. Before the police arrived, were 22 you blocking traffic on Nostrand Avenue? 23 A. Before police arrived? 24 Q. Yes. 25 A. Yes fax: )88

45 Page Heal- 2 Q. Okay. Had the driver of the Acura moved 3 her vehicle at all before the police arrived? 4 A. No. 5 Q. When the police interviewed you about 6 how the accident happened, what did you tell them? 7 A. I told them I came to a complete stop 8 before Nostrand Avenue and Park Avenue. And as we 9 were stopped there, my foot rolled off the brake and 10 I rolled up and hit the back of her SUV. 11 Q. As a result of the accident of 12 December 7th 2015, was there any damage to any 13 portion of the 710 backhoe you were operating? 14 A. No. 15 Q. Were any tickets issued at the scene to 16 anyone? 17 A. No. 18 Q. For how long did you remain at the scene 19 before you left? 20 A. Some time before an hour. I don't know. 21 Maybe half hour, hour, I don't really know. 22 Q. Okay. Who left first, the Acura, you? 23 A. I left first. 24 Q. Following the accident of December 7th did you ever fill out what is known as a fax:

46 Page 45 November Heal- 2 MV-104 report for the Department of Motor 3 Vehicles? 4 A. At the scene of the accident? 5 MR. CODE: No, at any time. 6 THE WITNESS: With Hallen? 7 MR. CODE: Any time afterwards. 8 THE WITNESS: I filled out something. 9 I don't know if it's called a MV BY MR. MCGANNON: 11 Q. Did you ever fill out a pre-printed form 12 that you fill in all the boxes and you sign it and 13 send it off to the Department of Motor Vehicles in 14 Albany? 15 A. I think -- I know -- I don't know exactly 16 what I filled out, but they gave me something to 17 fill out and explained what happened in the 18 accident, all my information. 19 Q. Who gave you that form? 20 A. Either I got it from Stewy or Johnny May. 21 Q. What is Stewy's full name? 22 A. Stew -- I don't know how to pronounce it. 23 I don't have it in my phone. They usually have in his office, they have a bunch of forms that you 25 go and take and you fill out for an accident report. â / fax:

47 Page Heal- 2 Q. And is Stew's office also in Maspeth? 3 A. Yes. 4 Q. Does Stew also work in the safety 5 department? 6 A. Yes. 7 Q. Okay. With John May? 8 A. Stewy has his own office and Johnny has 9 his own office. 10 Q. Did you complete an accident report for 11 Hallen Construction? 12 A. Yes, I did. 13 Q. Was it one report or more than one 14 report? 15 A. One report. 16 Q. And who did you submit it to? 17 A. I gave it to either Stewy or I gave it to 18 Johnny May. 19 Q. To your knowledge, did anyone at Hallen 20 Construction investigate the accident? 21 A. I don't know. 22 Q.. At the time of the accident were you 23 operating the 710 backhoe with the permission and 24 consent of Hallen Construction? 25 A. Yes â fax:

48 Page Heal- Healâ 2 MR. MCGANNON: Off the record. 3 (Discussion held off the record.) 4 EXAMINATION 5 BY MR. CODE: 6 Q. Just one question. After your foot 7 rolled off the brake and you proceeded forward, 8 can you estimate for me about how fast your 9 vehicle was going forward in miles per hour? 10 MR. MCGANNON: Objection. 11 THE WITNESS: Not even a mile. 12 MR. CODE: Okay. That's it. Thank 13 you.. 14 EXAMINATION 15 BY MR. MCGANNON: 16 Q. From the time your foot slipped off the 17 brake to the time of impact with the Acura, do you 18 know how much time went by? 19 A. Seconds, maybe five seconds. 20 Approximately three to five seconds, it happened so 21 quick. 22 MR. MCGANNON: I have no further 23 questions. Thank you. I reserve the right 24 to further examination pending receipt of 25 responses to our initial notice for â fax:

49 Page 48! Heal- Healâ 2 discovery inspection, which was served 3 along with our bill of particulars. An d 4 also, a response to the preliminary 5 conference order. 6 Today we have not received any 7 discovery responses. So I would reserve my 8 right to any and all remedies. Thank you (Time noted: 2:30 p.m.) James Heal Subscribed and sworn to before me this day 19 of r Notary Public " fax:

50 Page INDEX 3 WITNESS EXAMINATION BY PAGE 4 James Heal Mr. McGannon 6, 30 5 Mr. Code / fax:

51 Page 50 1 EXHIBITS 2 NONE J fax:

52 Page 51 1 REQUESTS 2 NONE fax: 516 â

53 â â Page 52 1 C E R T I F I C A T I 0 N 2 3 I, PAMELA CAROLLO, a Court Reporter 4 and Notary Public within and for the State 5 of New York, do hereby certify: 6 That the witness whose deposition 7 is herein before set forth, was duly sworn 8 by me, and that the within transcript is a 9 true record of the testimony given by such 10 witness. 11 I further certify that I am not 12 related to any of the parties to this action 13 by blood or marriage, and that I am in no way 14 interested in the outcome of this matter. 15 IN WITNESS WHEREOF, I have hereunto 16 set my hand this 29th day of November, ÛA 21. PAMELA CAROLLO. 22 court P l4/i (I 23 cer, i( +Q 24 TR )',~r r 2 5 C' 0~ OurtRe â fax:

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