ARLENE P. BLUTH, JUDGE.
Women's Health Professionals, LLP (Women's Health) moves for an order compelling Newborn Construction, Inc. (Newborn) to produce additional witnesses for depositions and Newborn cross-moves for a protective order against these depositions (motion sequence #1).
Plaintiffs move for an order, pursuant to CPLR 3212, granting summary judgment on liability against defendants and for a special preference, pursuant to CPLR 3403, and Women's Health cross-moves for summary judgment, pursuant to CPLR 3212, dismissing plaintiffs' complaint and any cross claims against it and, alternatively, to transfer this action to Suffolk County (motion sequence #2).
The Shaw Group, Inc. (Shaw) moves for summary judgment, pursuant to CPLR 3212, dismissing plaintiffs' complaint and any cross claims against it and Women's Health cross-moves for summary judgment on its cross claim for contribution against Shaw (motion sequence #3).
Newborn moves for leave to amend to add cross claims against CM. Camparetti (Camparetti), April A. Clark (Clark) and Women's Health and for summary judgment on these cross claims and Women's Health cross-moves for summary judgment dismissing the proposed cross claims of Newborn against it (motion sequence # 4).
The court heard oral argument on the record on the motions and cross motions on May 1, 2013 (Hearing). The motions and cross motions are consolidated for disposition and decided as noted below.
Parties and Their Allegations
Kenneth Couillard (plaintiff) was a foreman employed by Newborn and, on August 9, 2010, when he was at the intersection of Route 25 and Terry Road, Smithtown, New York (the Site), he was struck by a car driven by Clark (plaintiff March 1, 2011 EBT at 10, 13, 35, 66). Francine Couillard is suing for loss of services, arising out of the accident.
Clark was the driver of the car that struck plaintiff, Camparetti, her mother, was the owner of the car and Clark was driving it with her permission (Clark April 12, 2011 EBT at 76; Camparetti April 12, 2011 EBT at 5-7). Clark was working for Women's Health as a medical assistant and, on the day of the accident, was transporting files from Women's Health's office in Smithtown to a satellite office in Stony Brook (Clark April 12 EBT at 12, 26, 30).
Women's Health was a medical practice, specializing in obstetrics and gynecology with a main office in Smithtown, with a file room, and a smaller office without storage capacity in Stony Brook (Gmystrasiewicz EBT at 12, 17, 21-23, 28-29).
Newborn was the general contractor with the New York State Department of Transportation (DOT) for certain road repair and construction work on Long Island (the Project) that included the Site (Vetrano EBT at 32, 78, 131; Moller EBT at 22; Scheduler March 2, 2011 EBT at 77).
Shaw was an engineering firm hired to perform inspection service on behalf of DOT on the Project to monitor Newborn's compliance with the Project's requirements (Moller EBT at 29; Schechner November 28, 2011 EBT at 50).
Plaintiff contends that, on August 9, 2010, at approximately 3 p.m., while he was at another location on the Project, he was summoned by Kyle Scheduler (Scheduler), Shaw's inspector, and that when he arrived there, he had a meeting with Scheduler and Abilio Salgado (Salgado), from North Star, a concrete subcontractor on the Project (plaintiff March 1, 2011 EBT at 48, 50, 52). He states that the purpose of the meeting was to discuss the next day's work at the Site, which was the construction of a new handicap ramp and that, in connection with this, plaintiff was taking measurements to determine the appropriate amount of concrete to be used (id. at 74, 77-78). It is undisputed that, at this time, Route 25 had been reopened to traffic and there was no crash attenuator truck or any other barricade on the highway, but that there were orange barrels on the side of the road.
Plaintiff states that, while he was bending over on the excavated area on the side of the highway, with his safety vest in his hand, he saw a car coming towards him and that he was struck by this car, driven by Clark, and suffered severe injuries including multiple fractured bones requiring the insertion of a steel rod in his right leg (id. at 82, 106-108, 135). He asserts that Scheduler told him how to perform specific tasks on the Project, including placement of the attenuator truck, the orange safety barrels and signs, the instruction to take measurements at the Site, which tools to use, and that Scheduler had the ultimate authority (id. at 37, 62; plaintiff March 2, 2011 EBT at 41-43; plaintiff November 7, 2011 EBT at 80, 97-98; Salgado EBT at 59).
Shaw alleges that it was the inspector on the Project, that the determination of safety devices, such as attenuator trucks, barrels and signs, their placement and usage was made by Newborn, the general contractor, and not by it (Scheduler March 2, 2011 EBT at 65, 77, 80, 98, 101, 122-123; Scheduler November 28, 2011 EBT at 34, 58, 89-90). It states that the safety equipment was either owned or leased by Newborn and that the meeting at the Site between plaintiff, Scheduler and Salgado was not part of the work performed that day at the Site, but rather was to discuss the next day's work (Scheduler March 2, 2011 EBT at 125, 136, 185; Scheduler November 28, 2011 EBT at 48, 67).
Scheduler states that he did not see the impact, but that he saw Clark's car coming off the road and that he and Salgado were able to jump out of the way, but that plaintiff, who was behind him, was struck (Scheduler March 2, 2011 EBT at 146-147, 150).
Newborn alleges that it was the general contractor on the Project with the DOT, that Shaw was supervising it to ensure that its work was done according to specifications, that placement of safety devices for road construction would be determined by the inspector, Shaw, and that Shaw had the final say on these matters (Vetrano EBT at 32, 57-60, 96-97, 99). It states that, in particular, Schechner was especially "hands on" with regard to these determinations (id. at 116, 169). It further states that measurements for projected concrete usage was ...