Hudson v. Boutin , 656 N.Y.S.2d 781 ( 1997 )

Carpinello, J.

On the evening of November 26, 1985, State Trooper Thomas Hudson came to the aid of a disabled tractor trailer in the right hand driving lane of Interstate Route 87 south. The tractor trailer was owned by defendant Transport Canora Ltee and operated by Yvan Lemieux. Hudson parked his police vehicle behind the tractor trailer and, although he had activated the vehicle’s emergency lights and aimed a spotlight on the tractor trailer, he did not set up flares to warn oncoming traffic of the obstruction in the highway. A short time later, a tractor trailer operated by defendant Daniel Boutin rear-ended the police vehicle, which was then pushed into .the disabled tractor trailer. Hudson and Lemieux, who were inside the police vehicle, were killed as a result of the collision. The administrator of Hudson’s estate commenced action No. 1 against Boutin, Transport Canora and defendant J.C. Transport Inc. (the owner of the tractor portion of the tractor trailer that rear-ended the police vehicle). The State commenced action No. 2 against Boutin and J.C. Transport. The administrators of Lemieux’s estate commenced action No. 3 against Boutin, J.C. Transport, Hudson’s estate and defendant Les Enterprises Yves La Bonte (the owner of the trailer portion of the tractor trailer that rear-ended the police vehicle). Numerous motions and cross motions for, inter alia, summary judgment were denied by Supreme Court, with one exception.^*

The estate of Hudson claims that it is entitled to summary judgment because Hudson is subject to the protection of Vehicle and Traffic Law § 1104 (b) (1) as there is no evidence that his activities on November 26, 1985 constituted a reckless disregard for the safety of others (see, Vehicle and Traffic Law § 1104 [e]; see also, Saarinen v Kerr, 84 NY2d 494). In light of the absence of flares and the fact that Hudson intentionally parked his vehicle in the driving lane of an interstate highway on a night where the weather conditions included freezing rain mixed with snow, we find that the issue of whether Hudson’s conduct rose to the level of recklessness is a matter for the jury to determine. Accordingly, Supreme Court did not err in denying summary judgment to Hudson’s estate.

Also at issue on this appeal is the propriety of Supreme Court’s order denying motions and cross motions by defendants for summary judgment dismissing causes of action by Hudson’s estate pursuant to General Municipal Law § 205-e. General Municipal Law § 205-e permits a police officer’s representative, in the event of an accident causing death, to recover for such death if it occurred directly or indirectly as a result of any neglect, omission, willful or culpable negligence of any person in failing to comply with the requirements of any applicable statute, ordinance, rule, order or requirement of Federal, State or municipal law. Alleged violations of the Vehicle and Traffic Law are sufficient to sustain a General Municipal Law § 205-e cause of action (see, Costantini v Benedetto, 190 AD2d 888, 889-890). With respect to defendants’ alleged violations of various provisions of the Vehicle and Traffic Law, we also find that questions of fact exist precluding summary judgment to any party.

White, J. P. and Spain, J., concur.

* In action Nos. 1 and 3, Supreme Court dismissed the common-law negligence claims brought by Hudson’s estate on the basis of the Firefighter’s Rule (see, e.g., Santangelo v State of New York, 71 NY2d 393). Subsequently, however, Supreme Court granted a motion to reargue by Hudson’s estate and reinstated these claims due to a change in the law (see, L 1996, ch 703). No appeal has been taken from this order.