ADDITIONAL CASES Thomas DeSantis and Brook Trailer Services Inc., Defendants/Third Party Plaintiffs v. MS International Inc. and TNT Solutions KC, LLC, Third Party Defendants State Farm Mutual Automobile Insurance Company a/s/o Isabel Moccia Plaintiff v. Thomas J. DeSantis, Defendant The following papers numbered 1 to 4 were fully submitted on the 27th day of May 2021: Papers Numbered: Notice of Motion for Summary Judgment by Plaintiff (Affirmation in Support, with Supporting Exhibits) (Dated: March 18, 2021) 1 Affirmation in Opposition to Plaintiffs Motion by Defendants/Third Party Plaintiffs Thomas DeSantis and Brook Trailer Service Inc., with Supporting Exhibits (Dated: May 21, 2021) 2 Plaintiffs Affirmation in Reply (Dated: May 27, 2021) 3 Affirmation in Partial Opposition to Plaintiffs Motion for Summary Judgment by Third Party Defendants MS International Inc. and TNT Solutions KC, LLC (Dated: May 27, 2021) 4 DECISION AND ORDER Upon the foregoing papers, the motion by plaintiff, Isabel Moccia, for summary judgment against the defendants/third party plaintiffs Thomas DeSantis and Brook Trailer Service, Inc. (hereinafter “DeSantis”) is granted. This matter arises out of an automobile accident that occurred on January 10, 2018, on the Staten Island Expressway near the Fingerboard Road entrance ramp in Staten Island. At the time of the accident the plaintiff was operating her 2010 Volkswagen in heavy traffic in the right eastbound lane of the expressway. Travelling in the middle lane and slightly behind plaintiff was a tractor with attached open flatbed owned by defendant/third party plaintiff Brook Trailer Service, Inc. (hereinafter “Brook”) and operated by Brook’s driver, the defendant/third party plaintiff Thomas DeSantis. The flatbed was loaded with 56 slabs of quartz that weighed approximately 23 tons. Plaintiff commenced this action to recover for personal injuries and property damage she sustained when the rear of her car was struck by four slabs of quartz that fell off the trailer1. Brooks and DeSantis impleaded the third-party defendants MS International Inc. (hereinafter “MSI”), the operator of the facility in Edison, New Jersey where the truck was loaded, and TNT Solutions KC, LLC (hereinafter “TNT”), the freight broker that hired Brooks to transport the quartz (see NYSCEF Doc. Nos. 14, 36) for, inter alia, improperly loading the quartz on the truck. By stipulation dated April 19, 2019 (see NYSCEF Doc. No. 38), the third-party action was discontinued as against TNT. Plaintiff moves for summary judgment on liability against Brooks and DeSantis,2 arguing, inter alia, that she is entitled to the inference of negligence against defendants/third-party plaintiffs pursuant to the doctrine of res ipsa loquitur3 (i.e., the accident would not have occurred in the absence of negligence; Brooks and DeSantis had exclusive control over the instrumentality — the trailer and straps affixed to it — which caused the injury; and plaintiff, who was merely stopped in traffic, did not cause or contribute to the accident). In opposition to the motion, defendants/third party plaintiffs maintain that while plaintiff may not have played a role in causing the accident, a trial is still required to assess the liability between the remaining parties. In this regard, Brooks and DeSantis argue that (1) res ipsa loquitur is inapplicable because MSI’s loading of the flatbed eliminates the element of exclusive control on the part of Brooks and DeSantis; (2) plaintiff failed to meet her burden of proof on the issue of liability against Brooks and DeSantis, and (3) plaintiffs theory as to the cause of the accident (i.e., failure of the straps4 securing the quartz to the trailer) is disputed by defendants’ expert, who places the fault entirely upon failure of the A-frame5 upon which the quartz rested, which was constructed and installed by MSI. The evidence discloses that DeSantis was not present during the loading of the trailer at MSI’s facility on January 9, 2018, and that the persons who loaded the flatbed were MSI “slab handlers” Raoul, Rene, and Zahid Ouikfir, (see NYSCEF Doc. No. 81). Mr. Ouikfir testified at his deposition that if the truck driver is present while a flatbed is being loaded, then the driver secures the straps to the load (see NYSCEF Doc. No. 81; p. 64, 11 5-13). However, if the truck driver is not present when the flatbed is loaded, then the slab handlers themselves attach the straps. When DeSantis arrived at the MSI facility on January 10, 2018, the day after the truck was loaded, he performed his fifteen minute pre-trip inspection in which he tested the strength and tension of all of the straps by bouncing a ‘z-bar’ against them (see NYSCEF Doc. No. 71, pp 21-23). DeSantis left Edison, New Jersey and traveled over the Outerbridge Crossing into Staten Island, stopping once on the Staten Island side to test each strap and to tighten at least two of them (id, pp 75-78). He then proceeded onto the eastbound Staten Island Expressway. Traffic was “bumper to bumper” during the entire route from New Jersey to the point of the accident. Plaintiff’s reliance on the doctrine of res ipsa loquitur is sufficient to establish her prima facie entitlement to judgment as a matter of law. In order to invoke the doctrine, a plaintiff must establish the event to be (1) of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) caused by an agency or instrumentality within the exclusive control of the defendant, and (3) not due to any voluntary action or contribution on the part of the plaintiff (Corcoran v. Banner Super Mkt., 19 NY2d 425, 430 [1967]). The first and third prongs are clearly established by plaintiff and conceded by defendants. DeSantis and Brooks contest the second element (i.e., the issue of DeSantis’ exclusivity and control of the flatbed). The requirement of exclusivity “does not mean the elimination of all other possible causes of the incident (Banca DiRoma v. Mutual of Am. Life Ins. Co., Inc., 17 AD3d 119 [1st Dept. 2005]) but simply “a rational basis for concluding that ‘it is more likely than not’ that the injury was caused by defendant’s negligence” (Kambat v. St. Francis Hosp., 89 NY2d 489, 494 [1997]). Here, the evidence establishes that control and operation of the flatbed was sufficiently exclusive to defendant DeSantis, who admittedly tightened at least two of the straps between his drive from Edison, New Jersey to the point of the accident on Staten Island. Accordingly, plaintiff has established by sufficiently convincing circumstantial proof “that the inference of defendant’s negligence is inescapable” (Morejon v. Rais Constr. Co., 7 NY3d 203, 209 [2006]). In opposition, defendants have failed to set forth a reasonable explanation or excuse for the happening of the accident. The Court notes, additionally, that the evidence submitted on this motion supports a finding of negligence per se against the defendants, who were issued a citation by the NYPD Highway Patrol for violation of the Code of Federal Regulations, specifically 49 CFR 393.100[b] (see NYSCEF Doc. No. 75). It is well settled that the violation of a statute which establishes a specific standard of care may result in either absolute liability or a finding of negligence per se (Martin v. Herzog, 228 NY 164, 168-169 [1920]). Violation of statutes which define the degree of care to be used under certain circumstances results in negligence per se when the plaintiff is a member of the class of persons intended to be benefitted by the statute and the statute is intended to protect against the very hazard which caused the plaintiff’s injury (see e.g., Batal v. Associated Univs., Inc., 293 AD2d 558 [2d Dept. 2002][proceeding into intersection in violation of VTL was negligence per se]). In the event of violation of a statute constituting negligence per se, a duty is placed upon the offending party to provide a reasonable excuse for its failure to comply with the statutorily imposed standard of care (Tedla v. Ellman, 280 NY 129, 133 [1939]). In accordance with VTL §377 [1]6, the New York State Commissioner of Motor Vehicles and the Commissioner of the Department of Transportation have adopted Part 393 of Title 49 of the Code of Federal Regulations. Subpart I of Part 393 of the Federal Regulations requires commercial vehicles, when transporting cargo on public roads, to be loaded and equipped, and the cargo secured, in accordance with the rules of the subpart, to prevent cargo from spilling, blowing or falling from the motor vehicle. Specific rules are in place for “securing lumber or similar building products,” (see 49 CFR §393.118). These requirements relate to the placement of cargo and the strength, and positioning of the tie-down straps. In their April 1, 2021 “Response to Third Party Demand for Repair Records” (see NYSCEF Doc. No. 75; “Driver Vehicle Examination Report”) defendants list several violations issued, including 49 CFR §393.100[b] for “leaking/spilling/blowing/falling cargo: Load of quartz became dislodged from trailer, spilling onto the roadway.” In opposition, defendants have failed to provide a reasonable excuse for failing to comply with the standard of care imposed by 49 CFR §393.100[b]. Finally, the Court makes no ruling as to whether and to what degree the third-party defendant (MSI) is negligent for the happening of the accident. Whether the spillage of the quartz load was due to MSI’s failure to provide an adequate A-frame, or DeSantis’ failure to properly secure the slabs so that it did not shift in stop-and-go traffic does not defeat plaintiffs motion, as defendants were at least partially responsible for the accident (see Marrero v. 2075 Holding Co. LLC, 106 AD3d 408 [1st Dept. 2013]). Accordingly, it is ORDERED that the motion for summary judgment on the issue of liability of plaintiff, Isabel Moccia, against the defendants/third-party plaintiffs Thomas DeSantis and Brook Trailer Service, Inc. is granted, and it is further ORDERED that the parties appear before the Court for a further conference on august 2, 2021 pursuant to rules of the Part. Dated: July 26, 2021
