Upon the forgoing papers plaintiffs Feige Zupnik and Joel Zupnik seek an order granting summary judgment as to liability in their favor (CPLR 3212) and for an order striking the answer of the defendants. On June 29, 2007, by short form order, that portion of the motion which sought to strike the defendants' answer was resolved by the parties.

Plaintiffs commenced this action to recover for personal injuries sustained by Feige Zupnick ("Zupnick") when she was struck in the left foot by a twelve-foot beam which fell off the back of a flatbed truck owned by defendant Certified Lumber Corporation ("Certified") and operated by defendant Joel Schonfeld ("Schonfeld," collectively "defendants"). The incident occurred on

May 22, 2006 as Zupnick was walking along Whyte Avenue, approximately a quarter of a block from its intersection with Division Avenue in Kings County.

At her deposition, plaintiff testified that she heard a noise behind her, turned and then both heard and saw the defendants' truck hit the curb as it attempted to complete a right turn from Division Avenue onto Whyte Avenue. Plaintiff stated that shortly thereafter a beam fell from the truck, rolled onto the ground and struck her left foot. Plaintiff testified that she attempted to move away but that the incident happened too quickly.

Joel Schonfeld, one of Certified's managers, when deposed, testified that he was driving the truck from 470 Kent Avenue to a lumber storage site on Franklin Avenue [*2]when the incident occurred. The truck had been loaded earlier that day by another driver. Schonfeld testified that the cargo on the truck consisted of three packages or "units" containing 40 to 45 beams each. Each unit was secured by the manufacturer with two metal straps directly around the beams. Each beam was approximately 3" x 8" x 12' in size. Two units were placed on the flatbed side by side and the third unit was placed on top and between the other two. According to Schonfeld, three of the truck's tie-down straps were around the top unit. Schonfeld testified that he checked the three straps on the top unit, by pulling them with his hands, sometime prior to leaving the Kent Avenue lot. He could not recall whether there were more than three straps around the units. The truck was purchased with the tie-down strap devices installed. These straps were designed for trucks carrying open loads.

The incident occurred within minutes after Schonfeld left the Kent Avenue lot. Schonfeld indicated that he was traveling at approximately 6 to 7 mph and that he observed plaintiff crossing the street diagonally towards him. He slowed down when he observed the plaintiff, but did not know whether doing so caused the beams to shift. He continued down Division Avenue and made a right turn onto Whyte Avenue, traveling at approximately 5 to 6 mph. He then observed people staring at the rear of his truck and observed beams on the street behind the truck. The plaintiff was sitting on the curb and approximately twenty beams lay in the street three to four feet away from the curb. Schonfeld maintains that he did not see the beams fall off of the truck or come into contact with the plaintiff. When asked whether he checked to find out why the beams fell, Schonfeld stated that he saw the straps "hanging, regular hanging, almost like — it wasn't hooked up, so because all the beams fell out . . . The straps were hanging . . ." It is not disputed that lumber was being transported when it fell from the truck owned by Certified Lumber Corporation and operated by Joel Schonfeld.

Plaintiffs argue that the defendants violated Vehicle and Traffic Law ("VTL") §377 by failing to properly secure the beams at the rear of the truck. As a result, argue plaintiffs, defendants are per se negligent and liable for the injuries sustained. Plaintiffs contend that summary judgment is appropriate in this case as there is no dispute as to the cause of the accident. Plaintiffs maintain that Zupnick was an innocent pedestrian and, as is made evident by the criminal sanctions imposed for a violation of VTL §377, within the class of persons which the statute was enacted to protect.

Defendants, in opposition, allege that they complied with the requirements of VTL §377 and that plaintiffs do not meet their prima facie burden. Defendants urge that plaintiffs make no showing by competent evidence that any act or omission of the defendants caused the accident. In this regard, defendants point out that it was the manufacturer of the lumber who bundled the units and secured them with metal straps. Moreover, the defendants contend that it was the plaintiff's own conduct which contributed to the happening of the incident. In this regard they maintain that had the [*3]plaintiff not crossed the street in the middle of the block she would have avoided the incident, and that the plaintiff failed to take steps to avoid being struck by the beam(s).

Defendants argue, in the alternative, that VTL §377 is not applicable in that their cargo consisted of bundled beams and the statute refers to logs or other material which by their nature may shift or roll. Defendants cite People v Stevens (116 Misc 2d 95 [1982]), the only case of record addressing this section of law. There, the Rochester City Court held that as VTL §377 is a penal statute, it should be narrowly construed to apply only to the items specifically described and those very similar in nature. Thus, in Stevens, the court concluded that truckloads of barley or other granular or straw-like substances did not fall within the ambit of VTL §377 (Stevens, 116 Misc 2d at 97; see also1978 NY Op. [inf.] Att'y. Gen. 114 [NY AG 1978]; 49 C.F.R. §106[a]).

In order to succeed on a motion for summary judgment it is necessary that the movant tender evidentiary proof in admissible form, sufficient to establish her cause of action so as to warrant the court, as a matter of law, directing judgment in her favor (Zuckerman v New York, 49 NY2d 557, 562 [1980]; CPLR 3212). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once a prima facie showing has been made, the opponent is required

to lay bare its proof in admissible form and to demonstrate the existence of a triable issue of

fact (Zuckerman, 49 NY2d at 562 [1980]). "[M]ere conclusions, expressions of hope or

unsubstantiated allegations or assertions are insufficient" (id.).

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]; Long v Forest-Fehlhaber, 55 NY2d 154, 160 [1982]; Van Gaasbeck v Webatuck Central School District No. 1, 21 NY2d 239, 243 [1967]). Violation of statutes which mandate specific conduct or prohibit certain defined acts and which are designed to protect a discrete class from a particular hazard which plaintiffs would be incapable of avoiding, results in absolute liability, providing such violation was a proximate cause of a plaintiff's injury. In order to impose strict liability, the statute must be one which sets forth a "flat and unvarying duty" rather than one which merely establishes a general standard of care (Van Gaasbeck, 21 NY2d at 244-245, citing Koenig v Patrick Constr. Corp., 298 NY 313, 316-319 [1948]). Similarly, the class of persons protected must be easily definable, discrete and in need of special protection (Koenig, 298 NY at 317 ["[O]nly when the statute is designed to protect a definite class from a hazard of definable orbit, which they themselves are incapable of avoiding, is it deemed to create a statutory cause of action and to impose a liability unrelated to questions of negligence"]; see also Van Gaasbeck, 21 NY2d at 243-244). Where strict liability is imposed, the comparative negligence of a plaintiff is of no consequence (Stolt [*4]v General Foods Corp., 81 NY2d 918 [1993]; Van Gaasbeck, 21 NY2d at 244).

Violation of statutes which define the degree of care to be used under certain circumstances results is 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 (Martin, 228 NY at 168-169; Jones v Radeker, 32 AD3d 494 [2006] [right turn at red light without yielding in violation of VTL was negligence per se]; Batal v Associated Univs., Inc., 293 AD2d 558 [2002] [proceeding into intersection in violation or VTL was negligence per se]; Dalal v City of New York, 262 AD2d 596, 598 [1999] [violation of VTL §509(3) by driving without glasses was negligence per se]). When a statute creates a specific duty of care in order to prevent a particular hazard, the Legislature has supplanted the existing common law standard of care with a new standard which is applicable as a matter of law (see Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 301, 304 [1936]; Tedla v Ellman, 280 NY 129, 130 [1939]). One cannot ignore a standard of care imposed by law and adhere to a different standard (see PJI 2:26; PJI 2:27).

Violation of a statute constituting negligence per se, therefore, places a duty upon the offending party to provide a reasonable excuse for its failure to comply with the statutorily imposed standard of care (Tedla, 280 NY at 133; Cordero v City of New York, 112 AD2d 914, 916 [1985]; Conyers v Vinti, 107 AD2d 787, 788-789 [1985]; Aranzullo v Seidell, 96 AD2d 1048, 1049 [1983]). In Aranzullo v Seidell (96 AD2d at 1049) the court articulated the distinction between "excused" and "explained" non-compliance with a statute, stating:

It is an unexcused omission to comply with the statute which is negligence (Martin v Herzog, 228 NY 164 . . .) and the excuses for which the law takes cognizance are limited (Petosa v City of New York, 52 AD2d 919 . . .) . . . By use of the term "unexplained" in the charge, the jury could have misconstrued the applicable legal principles to mean that road conditions . . . sufficed to explain defendant's failure to comply with the statutory provisions [VTL 1120] and, thus, relieved defendant of liability whereas defendant's omission could only be excused by evidence that he exercised reasonable care under the . . . circumstances in an effort to comply with the statutory provisions.[emphasis supplied]

Thus, a violation of a statute may be "excused" only "where one [has] exercised reasonable care in an effort to comply" with the statute (Aranzullo, 96 AD2d at 1049, citing Alongi v Beuter, 286 AD 990, 991 [1955]). In holding that the unexcused violation of a Highway Law requiring headlights on vehicles constituted negligence per se, Justice Cardoza, writing for the majority in Martin v Herzog (supra) indicated:

Lights are intended for the guidance and protection of other travelers on the highway (Highway Law, sec 329a). By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the [*5]established rule in this state.

[228 NY at 168] [emphasis supplied]

In this case, subsections [1] and [3] of Section 377 of the Vehicle and Traffic Law makes it a misdemeanor offense to haul upon a highway logs or other materials which by their nature may shift or roll, unless securely fastened. Section 377 provides in relevant part:

Vehicles engaged in the transportation of logs and other materials

1.No vehicle which is designed or used for the purpose of hauling logs or other materials which by their very nature may shift or roll so as to be likely to fall from such vehicle, shall be operated or moved over any highway unless its load is securely fastened by such safety chains, cables or other suitable devices as will effectively prevent the shifting or falling of such load or any part thereof, from the vehicle.

2.The commissioner is authorized to make necessary rules and regulations to carry into effect the provisions of this section, applying such provisions to specific conditions and prescribing means, methods and practices to effectuate such provisions. . . .

3.A violation of any of the provisions of this section or of any rule or regulation promulgated hereunder shall

constitute a misdemeanor . . . .

A violation of VTL §377[1] or of any rule or regulation promulgated under §377[2]

constitutes a misdemeanor offense punishable by a fine and/or imprisonment (see 1978 NY Op. [inf.] Atty. Gen. 114 [NY AG 1978]). In accordance with the statute, 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. The Department of Motor Vehicles Regulation [17 NYCRR 48.1] is entitled Transportation of Logs and Other Materials. The Department of Transportation Regulation [17 NYCRR 820.5] is entitled Parts and Accessories Necessary for Safe Operation. Subpart I of Part 393 of the Federal Regulations require 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 (49 CFR 393.100[b]). Specific requirements are set forth for "securing dressed lumber or similar building products," including bundles of lumber like those transported by defendants herein (see 49 CFR 393.118). These requirements relate, inter alia, to the placement of bundles and the strength, number and positioning of tie downs.

The language of a statute is the best evidence of the Legislature's intent (Riley v [*6]County of Broome, 95 NY2d 455, 463 [2000]). When, as here, that language is clear and unambiguous that alone, generally, is determinative (id., citing Matter of Washington Post Co. v New York State Ins. Dept., 61 NY2d 557, 565 [1984]). The language of Vehicle and Traffic Law section 377 makes clear its intent to protect motorist and other users of the roadway from serious, if not fatal, injuries and damage occasioned by the shifting or falling of certain cargo (see, e.g., 49 CFR 393.100; Commonwealth v Kessler, 912 A.2d 860 (Pa. Super. Ct., 2006); Ward v McDan Day Leasing Corp., 340 F. Supp. 86 [D. Pa., 1972], aff'd 485 F.2d 678 [1973], aff'd, 485 F.2d 679 [1973]). Plaintiff, a pedestrian, is a member of that class of persons which the statute was enacted to benefit, and Vehicle and Traffic Law §377 was intended to protect against the very hazard which caused the injuries claimed (Martin, 228 NY at 168-169). Moreover, the statute, a violation of which is a misdemeanor offense, defines the standard of care required when hauling logs and lumber (Tedla, 280 NY at 130-131; see also People v Stevens, 116 Misc 2d 95 [1982]).

Here, the only conclusion which may be drawn from the established facts is that the tie-down straps or bands broke, or loosened, resulting in lumber falling into the roadway (cf. Kriz v Schun, 75 NY2d 25, 34 [1989]). This violation of Vehicle and Traffic Law §377[1] constitutes negligence per se, placing a duty upon the defendants to provide a reasonable excuse for their noncompliance (Tedla, 280 NY at 133). Schonfeld did not load the truck and checked only the straps over the top unit. As an "explanation" for the accident, the defendants offer that the units of lumber were shipped to them already bound by the manufacturer and that the metal strap(s) may have come loose. However, this "explanation" cannot suffice to "excuse" defendants' noncompliance with Vehicle and Traffic Law §377[1] which mandates that logs and other material which may shift or roll "shall be" "securely fastened by safety chains, cables or other suitable devices as will effectively prevent the shifting or falling of such load." The defendants omission may only be "excused" by evidence that it exercised reasonable care in an effort to comply with section 377 and, by reference, with 49 CFR 393.100 et. seq. (Aranzullo, 96 AD2d at 1049). This, the defendants have failed to do.

Finally, the defendants' contention that the plaintiff's conduct in crossing in the middle of the street contributed in some manner to causing the accident, finds no support in the record. Schonfeld testified that although he slowed down slightly as he observed the plaintiff crossing, he did not know whether slowing down caused the load to shift. Additionally, there is no evidence to support the defendants' contention that plaintiff could have avoided the accident, as plaintiff testified that there was insufficient time to do so (Packer v Mirasola, 256 AD2d 394 [1998]; Drake v Drakoulis, 304 AD2d 522, 523 [2003]). Moreover,

Schonfeld did not know when the beams fell from the truck or when the plaintiff was struck. Hence, "only one conclusion may be drawn from the established facts" (Kriz, 75 NY2d at 34) and that is that defendants' violation of Vehicle and Traffic Law 337 was a proximate cause of the accident (id.). Accordingly, it is [*7]

ORDERED, that the motion is granted and plaintiff shall have summary judgment against the defendants as to liability in her favor, and it is further

ORDERED, that plaintiff shall file a Note of Issue on or before November 15, 2007.

ENTER,

_________________

J.S.C.