Bruno v Golluscio

[*1] Bruno v Golluscio 2012 NY Slip Op 50372(U) Decided on February 27, 2012 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2012
Supreme Court, Kings County

Delores Bruno, individually and as Administratrix of the Estate of Frank D. Bruno, Deceased, Plaintiffs,

against

Paul Golluscio, Arthur G. Johansen and Carlyle N. Raye,, Defendants.



24711/09



Plaintiff Attorney: Edelman, Krasin & Jaye, One Old Country Road, Carle Place NY

Defendant Attorney: Martin, Fallon & Mulle , 100 East Carver Street, Huntington NY

David I. Schmidt, J.

Upon the foregoing papers, defendant Carlyle N. Raye (Raye) moved for an order, pursuant to CPLR 3212, dismissing the Complaint of plaintiff Delores Bruno (plaintiff), individually and as the Administratrix of the estate of the deceased Frank D. Bruno (Bruno), and all other claims against him in this personal injury action. The court granted defendant Raye's motion for summary judgment by short form order dated December 14, 2011.

Defendant Paul Golluscio (Golluscio) cross-moves for an order, pursuant to CPLR 3212, dismissing the plaintiff's Complaint and all other claims against him in this action. As discussed below, the court herein denies defendant Golluscio's cross motion for summary judgment.

FACTS AND PROCEDURAL HISTORY

On or about September 23, 2009, plaintiff commenced the instant action, as Administratrix of the deceased Bruno's estate, seeking to recover for Bruno's wrongful death as a result of a motor vehicle accident that occurred at around 3:40 a.m. at the intersection of Jamaica Avenue and Pennsylvania Avenue in Brooklyn, New York on October 10, 2008.

On the day of the accident, the weather was clement and it was not raining. According to the police accident report (the Police Report), Raye was driving northbound on Pennsylvania Avenue when his vehicle collided with a vehicle traveling westbound on Jamaica Avenue. Raye, an officer with the New York City Department of Corrections, was driving a blue 1987 Toyota [*2]Cressida sedan en route to work on Riker's Island. The other vehicle was a white Lexus SUV which carried defendants Bruno and Golluscio, and passenger Andrew Johansen (Johansen).[FN1] The SUV flipped onto its roof. Bruno died as a result of the injuries sustained in the accident. Although the Police Report states that Bruno was driving at the time of the accident, it is disputed whether Bruno or Golluscio was driving.

According to Raye's deposition testimony, he was traveling northbound on Pennsylvania Avenue approaching the intersection in question, with Jamaica Avenue was on his right, and Jamaica Avenue became East New York Avenue on his left. Traffic on Jamaica Avenue ran from his right to left. Raye testified that, as he approached the intersection of Pennsylvania and Jamaica, he first saw the traffic light from approximately fifteen to twenty yards away. The light was green from the time he first observed it to the time of the accident. He acknowledged that the speed limit was thirty miles per hour on that road, and estimated that he was traveling at thirty-five or thirty-seven miles per hour when the accident occurred. Raye stated that the SUV suddenly appeared in front of him, but he was unable to do anything in response and could not apply the breaks or honk the horn in the "split second" that transpired before the impact. The front of Raye's vehicle collided with the driver side of the SUV.

According to Golluscio's deposition testimony, he and Johansen had convened earlier on the night prior to the accident, with plans to go to Dublin Pub in New Hyde Park, Long Island. From Johansen's house, Johansen drove with Golluscio to the Syosset train station, where they sat in the parking lot drinking beer with Johansen's younger brother, Thomas. Golluscio testified that he and Johansen left the train station and Johansen drove his father's SUV to Johansen's house, where they picked up Bruno. Golluscio stated that Johansen next drove them to Dublin Pub, where Golluscio remained in the car because he was too intoxicated and had fallen asleep. Allegedly, Bruno and Johansen spent four and a half hours inside Dublin Pub while Golluscio slept in the back seat of the SUV. He admitted that they had done shots of vodka in the car, smoked marijuana, and taken the drug Xanax that evening.

According to Golluscio, Bruno and Johansen left Dublin Pub sometime after midnight, returned to the car, and woke Golluscio up. Due to an altercation in the parking lot between Johansen and his brother, Thomas, who was also at Dublin Pub, the police came to the parking lot to resolve the situation. They asked Golluscio, who had exited the SUV by that point, to sit on the sidewalk curb. As they were leaving, Golluscio allegedly heard Bruno say to Johansen that he would drive, Golluscio got into the front passenger seat, and Johansen sat in the back seat on the driver side. When asked whether he was awake while they were driving from Dublin Pub to Brooklyn via the Jackie Robinson Parkway, Golluscio stated that he was "going in and out." Golluscio did not know why they were driving to Brooklyn. At the moment the accident transpired, Golluscio was speaking to his mother on his cell phone, which he allegedly lost during the accident and never recovered. He said that the speed of the vehicle at the time of the accident was less than twenty miles per hour. He averred that, immediately before the impact, both he and Bruno turned their heads to the left and he observed a car coming towards them. Golluscio stated that he climbed out of the overturned SUV though the front passenger side [*3]window after the accident. He remembered that Johansen was also outside the SUV after the collision, but Bruno was halfway in and halfway out of the car window.

During defendant Johansen's deposition, Johansen testified that, around dinner time on the night before the accident, he, Golluscio, and some friends were drinking beer and coffee in the parking lot outside a Dunkin Donuts in Syosset. Then, Johansen stated that he drove with Golluscio to Johansen's house, where they waited for a friend who never showed up. Johansen then drove with Golluscio to a park, where they smoked pot with some other friends before picking up Bruno at a 7-11 store. They all took Xanax pills and drank beer and Bruno's bottle of vodka on the way to Dublin Pub.

According to Johansen, when they arrived in the Dublin Pub parking lot, only he and Bruno entered the club, while Golluscio stayed in the car, curled into a ball in the front passenger side seat because he was too intoxicated to join them. He averred that after drinking at Dublin Pub, he and Bruno returned to the parking lot and the police sat him and Bruno down on the curb in order to settle an altercation that had erupted. At that point, Golluscio was also outside the SUV with the police officers. Eventually, Johansen testified that as they returned to the SUV, he heard Bruno state, "I'm good to drive" before "jump[ing] into the driver's seat." Johansen sat in the back seat and went to sleep. However, he stated that he did not know who sat in the driver's seat and passenger's seat and could not confirm the exact seating arrangement of his friends within the car. According to the deposition transcript, the next thing Johansen remembered was hearing someone in the front ask why they were driving on the Jackie Robinson Parkway. He could not recall the accident itself or how he got out of the vehicle afterward.

Non-party witness Linda Logan (Logan) testified that she was standing outside the Dunkin Donuts at the intersection of Jamaica Avenue and Pennsylvania Avenue, watching traffic while waiting for her order. From her location, Pennsylvania Avenue ran from her right to left, and traffic on Jamaica Avenue was coming towards her. Logan testified that, as she was watching traffic, she observed a white Lexus SUV coming towards her on Jamaica Avenue. She watched the traffic light for the SUV change to red, and realized that the SUV, which she estimated was traveling at "25, 30 miles an hour easy, easily," was not going to stop. She also stated that the sedan operated by Raye, traveling northbound on Pennsylvania Avenue, had a green light and the right of way.

Logan stated that, after the collision, she approached the vehicles and observed a Caucasian male crawl out from the front driver side window. She described him as young, approximately twenty years old, Caucasian, approximately six feet to six feet two inches tall, very thin, with shaggy shoulder length brown hair. She stated that he was yelling about finding his cell phone, which had flown out of the car during the collision. He allegedly also stated that he needed to "get the hell away from here." Logan testified that she could smell marijuana coming out of the SUV as well as on the breath of the "shaggy haired kid," whose lips were blackened. According to Logan, a short, stocky, clean-cut Caucasian male with short hair, approximately five feet five inches tall, then climbed out of the car from the front driver side window with one arm visibly injured. Logan recalled that the second male was bug-eyed and in shock, and ran away from her after he exited the overturned SUV. She related that another bystander at the accident scene helped the second male sit down on the curb. The second male repeatedly asked where his other friend was. At that point, Logan approached the rear passenger [*4]side of the SUV to search for additional occupants and observed a Caucasian male in the back seat. She averred that the third person was tiny, very thin, looked short, and she thought he was thirteen to fourteen years old. Logan realized that he was not breathing as she tried to pull him out of the car by his feet. However, his head and arm became stuck and she could not pull him out past his torso. Logan said she later learned that the third male was named Frank Bruno and that he had died. Logan stated that she also checked on Raye, who remained in the car until the EMS arrived, to see if he was injured, but could not remember when in the sequence of events she did so.

THE PARTIES' CONTENTIONS

In Golluscio's cross motion, he argues that he should be granted summary judgment because the Police Report lists Bruno as the driver of the SUV and Golluscio as a passenger in the same vehicle. Also, Golluscio asserts that the testimony by Johansen corroborates his own testimony regarding the events on the night of the accident, including Golluscio's actions, as well of those of Johansen and Bruno, at least up to the point where Johansen and Bruno entered Dublin Pub. He maintains that the evidence conclusively indicates that Bruno was driving when the accident occurred, and that all claims and cross-claims against him therefore should be dismissed.

In opposition, plaintiff submits the affidavit of Dr. Ruhi Arslanoglu, Ph.D., for his expertise in the field of Biomedical Engineering/Biomechanics, and the affidavit of Michael DiCicco, an expert in the field of Crash Reconstruction, to support his contention that decedent Bruno was not driving the SUV at the time of the collision. Specifically, Dr. Arslanoglu opined, based on Bruno's injuries, that the occupant of the driver's seat was Golluscio, and that Bruno was sitting in the front passenger seat. Also, Mr. DiCicco concluded that the sedan struck the left side of the SUC between the front and rear wheels, causing both vehicles to rotate counterclockwise and the SUV to lift its left rear corner, which resulted in its rolling onto its right front corner. Last, plaintiff submits the deposition testimony of Logan, who stated that she attempted to pull Bruno's body out of the SUV through the rear passenger side window, as well as accident scene photos appearing to depict Bruno's body partially removed from the front passenger side window of the SUV. Plaintiff maintains that Golluscio did not conclusively establish that he was not driving the SUV or that Bruno was in fact driving the SUV, as the record lacks any statement that Golluscio actually observed Bruno driving and because Johansen testified that he did not know who was driving. In this regard, although Johansen testified that "[Bruno] jumped into the driver's seat," plaintiff notes that Johansen further stated, "I don't know what happened after that."

In reply, Golluscio contends that Dr. Arslanoglu is not qualified to opine on the matters herein because his C.V. does not reflect any training in Biomechanical Engineering or Accident Reconstruction. Defendant further asserts that biomechanical expertise relates only to whether the forces experienced were sufficient to cause the accident and is irrelevant to the determination of who was driving the vehicle. He also avers that Dr. Arslanoglu does not cite any scientific evidence to support his conclusions.

DISCUSSION

The drastic remedy of summary judgment should be granted only where there are no triable issues of fact (see Pearson v Dix McBride, LLC, 63 AD3d 895 [2009]; Sillman v [*5]Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). The moving party on a motion for summary judgment has the burden of demonstrating "a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]). Once the movant has made this showing, the burden of proof shifts to the party opposing the motion to produce evidentiary proof in admissible form to establish that material issues of fact exist which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "[M]ere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion (Goldstein v Monroe County, 77 AD2d 232, 236 [1980]). Accordingly, "[i]f there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied" (Celardo v Bell, 222 AD2d 547, 547 [1995]).

The court finds Dr. Arslanoglu's affidavit conclusory and unpersuasive, as it fails to provide specific scientific data or analysis for its findings and lacks probative value (Green v New York City Housing Authority, 81 AD3d 890, 891 [2011]; Abalola v Flower Hosp., 44 AD3d 522, 522 [2007]; Paladino v Time Warner Cable, 16 AD3d 646, 648 [2005]). Nevertheless, triable issues of fact exist with regard to the circumstances of the subject accident, including where each of the three male occupants of the white Lexus SUV were sitting at the time of the accident. The only evidence submitted in support of the argument that Bruno was driving the car at the time of the accident, aside from Golluscio's own self-serving testimony, was Johansen's statement that he overheard Bruno state, "I'm good to drive." However, Johansen could not confirm that Bruno was actually driving at the moment of impact. Moreover, the testimony from the non-party witness, Logan, raises more uncertainties. For example, although Logan states that she attempted to pull Bruno's body out from the SUV, her testimony is unclear whether she attempted to do so through the front or rear passenger side window. She suggests that she purposefully approached the rear passenger side of the vehicle to pull Bruno out, but in the accident scene photos, Bruno's body appears to have been partially removed from the front passenger side window of the SUV. Given the murky record regarding the details of the accident, it cannot be said that Golluscio was not driving the SUV at the time of the accident as a matter of law (Alvarez, 68 NY2d at 324; Winegrad, 64 NY2d at 852).

Accordingly, it is

ORDERED that defendant Golluscio's motion for summary judgment is denied.

The foregoing constitutes the decision, order, and judgment of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: Defendant Arthur G. Johansen is the owner of the white Lexus SUV. Andrew Johnson, a/k/a "A.J.," is his son.