                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 11, 2015                     520349
________________________________

LENORA PIERCE,
                    Appellant-
                    Respondent,
     v                                      MEMORANDUM AND ORDER

STEVEN W. HICKEY et al.,
                    Respondents-
                    Appellants.
________________________________


Calendar Date:   April 30, 2015

Before:   Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.

                             __________


      Kenneth Goldblatt, Mohegan Lake (Lee Greenstein, Delmar, of
counsel), for appellant-respondent.

      Murphy, Burns, Barber & Murphy, LLP, Albany (James J. Burns
of counsel), for respondents-appellants.

                             __________


Egan Jr., J.

      Cross appeals from an order of the Supreme Court (Connolly,
J.), entered September 26, 2014 in Schoharie County, which, among
other things, denied plaintiff's motion for partial summary
judgment.

      On or about August 28, 2011, Hurricane Irene caused
extensive flooding to homes, businesses and buildings located in
and throughout, among other places, Schoharie County. A local
state of emergency was declared and cleanup measures ensued.
Thereafter, on or about September 7, 2011, Tropical Storm Lee
struck Schoharie County, bringing with it additional rain and
flooding and generating additional storm debris.
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      At all times relevant here, defendant Steven W. Hickey was
a machine equipment operator employed by defendant County of
Schoharie in its Department of Public Works (hereinafter DPW).
On September 13, 2011, Hickey, who normally drove a closed
container recycling truck for the County, was tasked with
transporting open containers of storm debris – specifically,
building debris from the DPW garage – on a truck to a nearby
regional transfer station for disposal. As Hickey proceeded
north on State Route 30A in the Town of Schoharie, Schoharie
County, a pickup truck operated by plaintiff approached from the
opposite direction. When the two vehicles were roughly parallel
to one another, Hickey observed – through the driver's mirror –
"something come off the truck." Hickey slowed his vehicle and
came to a stop, whereupon he noticed various building materials –
sheetrock, plywood and sections of two-by-fours – and other flood
debris scattered across the pavement. One of those items of
debris, variously described by plaintiff as "an honest to
goodness piece of lumber" and "a really big board," flew through
plaintiff's open driver's-side window and struck her in the head
just behind her left ear.

      Plaintiff thereafter commenced this personal injury action
against defendants. Following joinder of issue and discovery,
plaintiff moved for summary judgment on the issue of liability,
contending that defendants failed to secure the top of the open
container with some type of cover as required by Vehicle and
Traffic Law § 380-a (1). Defendants then cross-moved for summary
judgment dismissing the complaint, arguing, among other things,
that they were immune from liability under Executive Law § 25
(5). Supreme Court denied the parties' respective motions,
prompting these appeals.

      Turning first to defendants' cross appeal, Supreme Court
correctly concluded that plaintiff was not required to
individually list Hickey on the underlying notice of claim.
Simply put, neither County Law § 52 nor the provisions of General
Municipal Law §§ 50-e (2) and 50-i (2) require that an individual
municipal employee be named in the notice of claim. Notably, the
purpose underlying the notice of claim requirement – to provide a
municipality with sufficient information to enable it to promptly
investigate the subject claim and ascertain its potential
                              -3-                520349

exposure to liability (see Brown v City of New York, 95 NY2d 389,
394 [2000]) – "may be served without requiring a plaintiff to
name the individual agents, officers or employees in the notice
of claim" (Goodwin v Pretorius, 105 AD3d 207, 216 [2013]). Thus,
dismissal of the complaint against Hickey upon this ground was
not warranted.

      Defendants' assertion that they are entitled to immunity
under Executive Law § 25 (5) is equally unavailing. Executive
Law § 25 governs a municipality's allocation and use of
governmental resources, e.g., equipment, supplies and/or
personnel, upon the threat or occurrence of a local disaster. To
that end, the statute provides that "[a] political subdivision
shall not be liable for any claim based upon the exercise or
performance or the failure to exercise or perform a discretionary
function or duty on the part of any officer or employee carrying
out the provisions of this section" (Executive Law § 25 [5]).
Citing, among other things, the looming public health crisis
allegedly brought about by the large volume of debris generated
in the wake of Hurricane Irene and Tropical Storm Lee, defendants
contend that they cannot be held liable for the manner in which
they elected to transport debris from the DPW garage on the date
of plaintiff's accident.

      As a starting point, we do not interpret Executive Law § 25
as being subject to the temporal limitations set forth in
Executive Law § 24. Executive Law § 25 addresses the use and
allocation of local government resources in response to the
threat or occurrence of a disaster; the statute is silent as to
the time frame within which such aid or resources may be
accepted, allocated and/or rendered. Accordingly, we do not find
that a municipality's powers under Executive Law § 25 may only be
exercised during a declared state of emergency or in conjunction
with a local emergency order (see Executive Law § 24 [1], [2]).1


    1
        Although we agree with defendants that the immunity set
forth in Executive Law § 25 (5) is not subject to the time
limitations embodied in Executive Law § 24, we cannot help but
note that, at the time of plaintiff's accident, defendants were
not actively engaged in an effort to protect life and property;
                              -4-                520349

This conclusion, however, is of little aid to defendants.

      Executive Law § 25 (1) provides that, "[u]pon the threat or
occurrence of a disaster, the chief executive of any political
subdivision is hereby authorized and empowered to and shall use
any and all facilities, equipment, supplies, personnel and other
resources of his [or her] political subdivision in such manner as
may be necessary or appropriate to cope with the disaster or any
emergency resulting therefrom." To be sure, this statute, which
vests a political subdivision's chief executive "with the power
to respond to a local disaster or the immediate threat of a
disaster, . . . reflects an awareness by the . . . Legislature
that in emergency situations prompt and immediate unilateral
action is necessary to preserve and protect life and property"
(Matter of Prospect v Cohalan, 109 AD2d 210, 217-218 [1985], affd
65 NY2d 867 [1985] [citations omitted]). Consistent with that
awareness, the statute further provides, as noted previously,
that "[a] political subdivision shall not be liable for any claim
based upon the exercise or performance or the failure to exercise
or perform a discretionary function or duty on the part of any
officer or employee in carrying out the provisions of this
section" (Executive Law § 25 [5]).

      In our view, the scope of the immunity conferred by
Executive Law § 25 is clear. When faced with a disaster, a
political subdivision's chief executive may, for example, decide
where to set up a makeshift hospital or aid station, prioritize
and determine which streets to clear or allocate supplies and
personnel as he or she sees fit, and such discretionary
determinations, in turn, will not serve as a basis upon which to
expose the political subdivision to liability. In other words, a


they were removing storm debris from the DPW garage. While this
indeed may have been a necessary task and an important part of an
overall effort to clean up the community and restore a full range
of services to the County's residents, the immediate threat posed
by Hurricane Irene and Tropical Storm Lee and the corresponding
urgency associated with formulating an appropriate response
thereto certainly had passed by the day of plaintiff's accident.
                              -5-                520349

disgruntled homeowner who is confronted with a flooded basement
and is living on an impassable residential street cannot seek to
hold a locality liable for damages simply because its chief
executive deemed it more important to first clear a path to the
local hospital or to pump out the holding cells in the local
police station. That said, the immunity conferred by Executive
Law § 25 (5) does not, to our analysis, grant a political
subdivision carte blanche to perform a discretionary function in
any manner that it sees fit – particularly in a manner that poses
a danger to the traveling public. Here, a valid – and
discretionary – determination may well have been made that the
removal of storm debris from, among other locations, the DPW
garage was a priority and, further, that transporting such debris
in open containers was the most efficient and expeditious way to
do so. The discretionary nature of these broad, resource-based
decisions, however, did not obviate the need for defendants to
comply with the provisions of Vehicle and Traffic Law § 380-a (1)
in terms of the actual transport of such debris. As the immunity
conferred by Executive Law § 25 (5) does not, in our view, extend
to the particular facts of this case, Supreme Court properly
denied defendants' cross motion for summary judgment dismissing
plaintiff's complaint.

      As for plaintiff's motion for summary judgment on the issue
of liability, the case law makes clear that the unexcused
violation of a provision of the Vehicle and Traffic Law
constitutes negligence per se (see McLeod v Taccone, 122 AD3d
1410, 1411 [2014]; Hazelton v D.A. Lajeunesse Bldg. & Remodeling,
Inc., 38 AD3d 1071, 1072 [2007]; Baker v Joyal, 4 AD3d 596, 597
[2004], lv denied 2 NY3d 706 [2004]). Here, plaintiff alleged
that defendants violated Vehicle and Traffic Law § 380-a (1),
which provides that "[i]t shall be unlawful to operate on any
public highway any open truck or trailer being utilized for the
transportation of any loose substances, unless said truck or
trailer has a cover, tarpaulin or other device of a type and
specification . . . which completely closes in the opening on
. . . said truck or trailer while said truck or trailer shall be
so operated, so as to prevent the falling of any such substances
therefrom. However, if the load is arranged so that no loose
substance can fall from or blow out of such truck, the covering
                              -6-                520349

is not necessary."2

      On a motion for summary judgment in the context of a
personal injury action, the injured plaintiff first must
demonstrate, among other things, that the defendant operated his
or her vehicle in violation of the Vehicle and Traffic Law;
assuming such a showing has been made, the burden then shifts to
the defendant to tender sufficient admissible proof to raise a
question of fact as to whether his or her violation of the
relevant statute either did not actually occur or was excused
(see e.g. Hazelton v D.A. Lajeunesse Bldg. & Remodeling, Inc., 38
AD3d at 1071-1072; Lowell v Peters, 3 AD3d 778, 780 [2004]; Luck
v Tellier, 222 AD2d 783, 784-785 [1995]; McGraw v Ranieri, 202
AD2d 725, 726-727 [1994]). Here, Vehicle and Traffic Law § 380-a
(1) contains, to our reading, both an initial requirement – that
a cover be utilized – as well as an exception/excuse for
noncompliance – namely, that the load was arranged in such a
fashion that no cover was necessary. Supreme Court interpreted
this poorly written statute as imposing upon plaintiff the
obligation to prove both that a cover was not used and, due to
the manner in which the load was arranged, that a cover was in
fact actually necessary.
      We disagree. In our view, in order to discharge her
initial burden on her motion for summary judgment, plaintiff need


     2
        The legislative history underlying Vehicle and Traffic
Law § 380-a reflects that it was enacted to prevent the very
hazard encountered by plaintiff here, i.e., flying or falling
debris capable of causing personal injury or property damage (see
Sponsor's Mem, Bill Jacket, L 1975, ch 418, § 1). Notably, in a
letter of support characterizing the bill as "a welcomed
advancement in highway safety control," the State Police observed
that "a piece of gravel falling from a truck going 55 [miles per
hour] and spilling onto a vehicle going a similar speed in the
opposite direction has the potential force of a discharged
bullet" (State Police Mem in Support, Bill Jacket, L 1975, ch
418, § 1). For his part, Hickey readily acknowledged that the
use of a cover was considered to be a safety measure, stating, "I
would have used [a cover] if I had one . . . [b]ecause it would
have been safer."
                              -7-                520349

only have shown that defendants failed to utilize a cover; at
that point, the burden shifted to defendants to demonstrate that
no statutory violation actually occurred because the load was
arranged in such a manner that no cover was necessary. To hold
otherwise would place a nearly insurmountable burden upon
plaintiff, as the manner in which the container was loaded and
the contents were arranged inevitably lies within the exclusive
knowledge of defendants.

      Here, in support of her motion for summary judgment,
plaintiff tendered, among other things, portions of Hickey's
examination before trial testimony, wherein Hickey readily
admitted – and defendants do not otherwise dispute – that the
open container that Hickey was transporting on the day in
question was not covered in any fashion. Such proof, in our
view, was sufficient to demonstrate defendants' violation of
Vehicle and Traffic Law § 380-a (1) in the first instance,3
thereby shifting the burden to defendants to tender sufficient
proof in admissible form to establish, insofar as is relevant
here, that the load was arranged in such a fashion that no cover
was required. This defendants failed to do. Hickey testified
that the open container already was loaded upon his arrival at
the DPW garage and that he had no idea when – or by whom – the
container had been loaded. Noticeably absent from the record is
an affidavit from the County employee who loaded the container in
question or, at the very least, an affidavit from someone who


    3
        Even assuming that plaintiff was required to make a
threshold showing that – due to the manner in which the debris
was loaded/arranged – a cover indeed was necessary, we would find
that plaintiff made such a showing here. Hickey admitted that he
looked into the top of the open container prior to leaving the
DPW garage on the day in question and that such container was
"loaded right up to the top." As noted previously, Hickey also
testified that he saw debris fly off the truck and thereafter
observed debris scattered across the roadway. Under these
circumstances, we would have no trouble concluding that plaintiff
made a prima facie showing that a cover was required to protect
the traveling public from the obvious hazard posed by falling
and/or flying debris.
                              -8-                  520349

could attest to the general procedures and protocols followed in
the loading of debris into such containers. As the record is
entirely lacking in proof as to the manner in which the container
was loaded and/or the debris deposited therein was arranged, it
necessarily follows that defendants fell short of raising a
question of fact as to the necessity for the otherwise
statutorily required cover. Accordingly, plaintiff is entitled
to summary judgment as to liability. The parties' remaining
contentions, to the extent not specifically addressed, have been
examined and found to be lacking in merit.

     Lahtinen, J.P., Garry and Rose, JJ., concur.



      ORDERED that the order is modified, on the law, without
costs, by reversing so much thereof as denied plaintiff's motion
for summary judgment as to liability; said motion granted; and,
as so modified, affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
