Calagiovanni v. Carello, Index 2016EF2787

CourtUnited States State Supreme Court (New York)
Writing for the CourtHON. GREGORY R. GILBERT JUDGE.
Citation2019 NY Slip Op 34270 (U)
PartiesALICIA S. CALAGIOVANNI, Public Administrator of Onondaga County, as Administrator of the Estate of SUMMER A. RUPERT-WOZNICZKA a/k/a SUMMER A. RUPERT, Plaintiff, v. VINCENT T. CARELLO, HAYLEE E. COVELL, JAKE HAFNER'S TAVERNS, INC., and JAKE HAFNER'S RESTAURANT & TAVERN, Defendants. RJI No. 33-16-3837
Decision Date07 January 2019
Docket NumberIndex 2016EF2787

2019 NY Slip Op 34270(U)

ALICIA S. CALAGIOVANNI, Public Administrator of Onondaga County, as Administrator of the Estate of SUMMER A. RUPERT-WOZNICZKA a/k/a SUMMER A. RUPERT, Plaintiff,
v.

VINCENT T. CARELLO, HAYLEE E. COVELL, JAKE HAFNER'S TAVERNS, INC., and JAKE HAFNER'S RESTAURANT & TAVERN, Defendants.

RJI No. 33-16-3837

Index No. 2016EF2787

Supreme Court, Onondaga County

January 7, 2019


Unpublished Opinion

DECISION & ORDER

HON. GREGORY R. GILBERT JUDGE.

BACKGROUND

This matter involves a motor vehicle accident which took place on October 30, 2014 at approximately 6:45 am. The action was commenced by the filing of a summons and complaint on July 8, 2016.

Summer A. Rupert (Rupert) was killed in the accident when she was struck by a vehicle owned by Haylee E. Covell (Covell) driven by her then boyfriend Vincent T. Carello (Carello). Causes of action are asserted against Covell and Carello and a wrongful death/dram shop action is stated against defendants Jake Hafner's Taverns, Inc. and Jake Hafner's Restaurant & Tavern (Hafner's).

Disclosure in the matter has been completed and a trial note of issue was filed on July 23, 2018. The Court has before it a motion for summary judgment brought by Hafner's which seeks to dismiss all claims and cross claims against it on the basis there is no proof of dram shop liability, no

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proof of proximate causation, the wrongful death action may not be maintained against Hafner's and there is no proof of conscious pain and suffering. Hafner's asserts that the cross claim by Covell should be dismissed because she failed to appear for depositions in addition to there being no basis for liability against it in the first instance.

STANDARD

Summary judgment may be granted only where there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The motion needs to be supported by sufficient evidence in admissible form to show the material and undisputed facts based on which judgment as a matter of law must be granted. Winegrad v. New York University Medical Center, 64 N.Y.2d 851 (1985); Viviane Etienne Medical Care v. Country-Wide Insurance Company, 25 N.Y.3d 498 (2015). In the absence of such a showing, the motion must be denied regardless of the sufficiency of the responding papers. Vega v. Restani Construction Corp., 18 N.Y.3d 499 (2012): Smalls v. AJI Industries. Ina, 10 N.Y.3d 733 (2008).

Once the burden on the motion has passed to the responding party, it is incumbent on that party to demonstrate by admissible evidence the questions of fact which may preclude summary judgment. Alvarez. 68 N.Y.2d at 324; Zuckerman, 49 N.Y.2d at 562. A responding burden is not met by conclusory or unsubstantiated allegations or the expression of hope. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124 (2000); Zuckerman, 49 N.Y.2d at .562.

On a motion, the Court is charged to view evidence and inferences arising therefrom in a light most favorable to the responding party. Haymon v. Pettit, 9 N.Y.3d 324 (2007); Fundamental Portfolio Advisors. Inc. v. Tocqueville Asset Mgt. LP, 7 N.Y.3d 96 (2006). Once all the papers have been reviewed, with the foregoing principles in mind, the motion should be granted unless a material triable issue of fact has been identified. Panepinto v. New York Life Insurance Co.,

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90 N.Y.2d 717 (1997); Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 (1978). The function of the Court on the motion is the determination of whether there a triable issue of fact exists and not one determining material fact or credibility issues. Vega, 18 N.Y.3d at 505 and Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957).

FACTS

The facts as set forth by this Decision are stated through the lens of summary judgment. The evidence and inferences arising therefrom are seen in a light most favorable to plaintiff. The question is whether there are material triable issues of fact that will remain to be determined by a jury upon the trial of this matter.

Rupert was wearing a reflective vest and flashing lights on her upper body while running east along the north shoulder of Lakeshore Road in the Town of Cicero. By all accounts, she was facing traffic, including Carello who was driving westbound on Lakeshore Road when he left the road onto the shoulder and off the shoulder striking Rupert and then left the scene.

According to the detailed police reconstruction, the point of impact of Rupert's body with the Covell/Carello vehicle was the right rear quarter panel where a transfer of Rupert's DNA was found. The police concluded that Carello lost control on a curve exiting the roadway sideways and striking Rupert on the right side of her body throwing her roughly 67 feet from the estimated point of impact.

Carello was subsequently located and taken into custody. He registered at 0.05% BAC by breath test taken at 9:27 am confirmed by a blood test taken at 10:10 am. The investigation shows that Carello left his employment at the Copper Top Tavern shortly before midnight and proceeded to Buffalo Wild Wings where he met up with Richard Remillard and Joshua Sill. Carello had smoked some marijuana at around 5:00 pm at Copper Top Tavern.

Carello consumed a shot of Jagermeister mixed with Red Bull energy drink and a bottle of beer. He then accompanied Remillard and Sill to the

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parking lot where he smoked some quantity of marijuana and returned to Buffalo Wild Wings. Carello, Remillard and Sill joined Samantha Farwell, Matthew Foley, Jane McLaughlin and Kristin LaMontage at a table where Carello finished his first beer. He then consumed a second bottle of beer.

The group, including Carello, left Buffalo Wild Wings and drove to Hafher's arriving at roughly 1:00 am. At Harrier's, Carello split a pitcher of beer with Sill. A second pitcher of beer was split by Carello and Sill while Carello played darts with LaMontage. After Carello and Sill finished the second pitcher, Carello consumed a shot of Jager with Red Bull. He admitted that following this, at around 2:00 am, that he felt "slightly intoxicated" and "buzzed", Remillard states that he was intoxicated and stumbling and that Farwell was also intoxicated. LaMontage and Foley were also intoxicated. Sill has little recollection of the events at issue. Surveillance video from Hafher's shows Carello consuming another beer and another shot at 2:10 am.

The Hafner bartender, Gina Scarsciotti (Scarsciotti) has testified that there wasn't any alcohol served after 2:00 am. Shortly before 2:00 am she did not notice any sign of intoxication in Carello, Remillard or Sill. Scarsciotti's instructions for cutting off alcohol consumption by a patron is that she observes that they are slurring their words and stumbling. She stated to the police that she did not observe anyone throwing upjor stumbling around nor anyone that she thought was "extremely intoxicated". She offered no testimony of her observations of Carello who admits that he was intoxicated and buzzed when served his final beer and shot at 2:10 am.

Carello exited Hafher's at 2:22 am according to the Hafner surveillance video to smoke a cigarette and felt sick to his stomach before re-entering the bar. He exited to the Hafner parking lot at 2:27 am as shown by surveillance video. A short time later he vomited and was observed to have slurred speech, droopy eyes and was unable to stand. Carello attempted to call his mother on his cell phone but passed out in his vehicle before the call connected. Carello refused several offers of a ride home but admits that he was intoxicated before leaving Hafner's and while he was in the parking lot. The last thing he remembers before passing out is that

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Remillard took his car keys out of car ignition.

Scarsciotti testified that when she exited Hafher's to the parking lot that she encountered three males and two girls sitting in a bench area. She did not observe any of them to be intoxicated and invited them to leave the premises. She had no specific observation of Carello or Carello's vehicle but there were still vehicles in the parking lot.

Carello testified that he was later told that Covell came to the parking lot and yelled at him for not being home with his child and grandmother and told him to come home with her. He was told that he refused and told her to "f*** off. Carello does not recail this himself but only recalls waking up in his car in the Hafner's parking lot just before dawn. He recalls starting the car but does not recall actually driving home. The next thing that Carello does recall is sitting in the car parked on the lawn of the Ellis residence being woken up by Carl and Andrea Ellis (Covell's parents). He believes that he passed out again and awoke to Carl Ellis knocking on the car window and that he yelled at them to "f*** off and drove off. Carello recalls driving away from the Ellis residence but nothing of the accident or his trip until reaching the intersection of South Bay Road and Route 31 where he pulled into a gas station and purchased $3.00 worth of gasoline and noticed new damage to the rear passenger side quarter panel of the car.

Testimony has been taken from Andrea Ellis (Ellis) who is Covell's mother and is employed as an RN at University Hospital in Syracuse. She saw Carello sitting in the car as she was preparing to leave for work. Ellis and her husband knocked on the car window and Carello opened the car door. They asked him what he was doing and tried to speak with him but his response was "I don't need this s***, f*** off. Ellis attempted to reach in to grab the car keys and Carello shut the door, started the car and took off. Ellis testified that she smelled alcohol on Carello and that his speech was slurred. She stated that Carello drove fast and unsafely away from the house skidding into a ditch...

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