Opinion
Argued April 20, 1999
June 1, 1999
In an action to recover damages for personal injuries, the defendants Joseph T. Gural and Iris Gural appeal from so much of an order of the Supreme Court, Queens County (Weiss, J.), dated March 12, 1998, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar asserted against them.
Alio, Ronan, Ritzert, McDonnell Kehoe, Melville, N.Y. (Frank Falzone of counsel), for appellants.
Mark E. Weinberger, P.C., Great Neck, N.Y. (Marc J. Musman of counsel), for plaintiff-respondent.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Kristin M. Helmers of counsel), for defendant-respondent.
WILLIAM D. FRIEDMANN, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs, the motion is granted, the complaint and all cross claims are dismissed insofar as asserted against the appellants, and the action against the remaining defendant is severed.
The court erred when it denied the appellants' motion for summary judgment. The record is devoid of any proof that they were in any way responsible for the accident. A plaintiff cannot make belated assertions raising feigned issues in an attempt to avoid the consequences of dismissal ( see, Fontana v. Fortunoff, 246 A.D.2d 626; Miller v. City of New York, 214 A.D.2d 657; Garvin v. Rosenberg, 204 A.D.2d 388).