Iannuzzi v County of Albany

[*1] Iannuzzi v County of Albany 2005 NY Slip Op 50298(U) Decided on March 2, 2005 Supreme Court, Albany County Spargo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 2, 2005
Supreme Court, Albany County

Antonietta Iannuzzi and JOSEPH IANNUZZI, Her Husband, Plaintiffs,

against

THE County of Albany, NEW YORK, THE ALBANY COUNTY DEPARTMENT OF PUBLIC WORKS, and MICHAEL J. JULIANO, Defendants.



6391-02



Tocci, Parker & Tocci, LLP

Attorneys for Plaintiffs

1698 Central Avenue

Albany, NY 12205

Joseph P. Cifarelli, Esq. (of counsel)

Maynard, O'Connor, Smith & Catalinotto, LLP

Attorneys for Defendants

80 State Street

Albany, NY 12207

Robert A. Rausch, Esq. (of counsel)

Thomas J. Spargo, J.

Plaintiffs move for summary judgment on the issue of defendants' negligence in this action which alleges that defendant Michael J. Juliano (Juliano) caused the vehicle he was driving to strike plaintiffs' car in the rear. Defendants offer their attorney's affidavit in opposition.

Plaintiff Antonietta Iannuzzi (Iannuzzi) was injured on August 6, 2001 when her car was struck in the rear by a van driven by Juliano and owned by the County of Albany. The collision occurred at around 2:00 p.m. on a clear, dry day on New Scotland Avenue, near the intersection of Southwood Drive, in the Town of Bethlehem in Albany County, New York. Juliano's van was then struck in the rear by a car driven by Barbara Herbert (Herbert) and the Herbert car was, in turn, rear-ended by a car driven by Debra Breckinridge (Breckinridge). [*2]

Just prior to the collision, Iannuzzi slowed her car by applying the brakes and activated her left turn signal to turn into her daughter's driveway on New Scotland Avenue. Iannuzzi was at a complete stop waiting until it was safe to turn left when Juliano's van struck her car.

At his deposition, Juliano admitted that after the collision he approached Iannuzzi and explained "I'm sorry - I didn't see you." Juliano stated that he was traveling between 30 and 40 miles per hour just prior to the incident. He also admitted that the "first time I really paid attention that I saw was when I saw her stop and I applied my brakes." He did not recall seeing brake lights and does not know whether Iannuzzi's left turn signal was on. Juliano testified that there were no mechanical problems with the brakes or any other part of the van he was driving.

A party moving for summary judgment has the initial burden of coming forward with admissible evidence establishing that the cause of action or defense lacks merit (Berkeley v Rensselaer Polytechnic Institute, 289 AD2d 690, 691). Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue (Gong v Gjoni, 294 AD2d 648, 649).

To "defeat a motion for summary judgment, one must lay bare in evidentiary form the evidence upon which he relies .... Bald conclusory assertions, even if believable, are not enough to defeat summary judgment ..." (Denton Publications, Inc. v Lilledahl, 112 AD2d 658, 659; Convenient Medical Care P.C. v Medical Business, 291 AD2d 617, 618).

A rear end collision with a stopped vehicle creates a prima facie case of defendant's negligence (Sega v Ryder, 287 AD2d 848, 850, lv denied 92 NY2d 805). Liability will be imposed as a matter of law unless the defendant "can come up with an adequate, non-negligent explanation for the accident" (Demenagas v Lai, 275 AD2d 759). A non-negligent explanation may include such things as mechanical failure or the sudden and abrupt stop of the vehicle ahead (Rodriguez-Johnson v Hunt, 279 AD2d 781, 782)

Defendants have failed to offer a non-negligent explanation for the collision and the motion for summary judgment on the issue of defendants' negligence in causing the collision is granted (see, Nichols v Turner,6 AD3d 1009, 1013). The record shows that Juliano breached his duties to maintain a reasonably safe distance between his vehicle and the plaintiffs' car ahead of him, and "to be aware of traffic conditions which were readily observable" (Krakowska v Niksa, 298 AD2d 561, 562, lv denied 1 NY3d 501).

The affidavit of defendants' attorney describing the proof allegedly offered in an earlier trial arising from this accident (Breckinridge v Juliano, Sup Ct, Albany County, March 29, 2004, McNamara, J., Index No. 3319-02) is inadmissible. Further, [*3]plaintiffs in this case were not parties to the earlier trial and are not bound by the issues purportedly determined by the jury in that action.

The verdict sheet showing that Juliano was not found to be negligent in the lawsuit brought by Breckinridge, the driver of one of the vehicles following Juliano, does not demonstrate a non-negligent explanation for Juliano striking plaintiffs' vehicle in the rear.

The record on this motion does not reveal the basis of the jury's verdict in the earlier lawsuit and the court rejects the speculation of the defendants' attorney that "the only basis" for the jury's verdict is "that Mrs. Iannuzzi, not Mr. Juliano, was responsible for their impact." The jury in the earlier trial could have simply concluded that, as between Juliano and Breckinridge, it was Breckinridge who caused their collision subsequent to the Juliano/Iannuzzi impact by following the Herbert vehicle too closely.

All papers, including this decision and order, are being returned to plaintiffs' counsel. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry.

This constitutes both the decision and the order of the court.

IT IS SO ORDERED.

DATED: ALBANY, NEW YORK

MARCH 2, 2005

THOMAS J. SPARGO, JSC

PAPERS CONSIDERED:

Notice of motion;

Affidavit of Iannuzzi;

Affidavit of Cifarelli;

Affidavit of Rausch;

Reply affidavit of Cifarelli.