Opinion
2012-06-7
Otolino MACHADO, Plaintiff–Appellant, v. Roman HENRY, Defendant, Thomas Karl Wiesehof, et al., Defendants–Respondents.
Bergman, Bergman, Goldberg & Lamonsoff, LLP, Mineola (Allen Goldberg of counsel), for appellant. Faust Goetz Schenker & Blee, New York (Danielle Goldstone of counsel), for respondents.
Bergman, Bergman, Goldberg & Lamonsoff, LLP, Mineola (Allen Goldberg of counsel), for appellant. Faust Goetz Schenker & Blee, New York (Danielle Goldstone of counsel), for respondents.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered April 26, 2011, which granted the motion of defendants Wiesehof, Lufthansa Airlines and Lufthansa German Airlines for summary judgment dismissing the complaint and all cross claims as against them, unanimously affirmed, without costs.
Defendants established their entitlement to judgment as a matter of law in this action arising out of a three-car collision. Wiesehof testified that he was operating his vehicle in the furthest right lane of the expressway, when he was suddenly struck by another vehicle coming from his left. Moreover, the drivers of the other two cars involved (plaintiff and defendant Henry) blamed each other, but not Wiesehof, for causing the accident ( see Cascante v. Kakay, 88 A.D.3d 588, 931 N.Y.S.2d 295 [2011];Neryaev v. Solon, 6 A.D.3d 510, 775 N.Y.S.2d 348 [2004] ).
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff's argument that Wiesehof may have been changing lanes or merging at the moment of the accident in violation of Vehicle and Traffic Law 1128, is a feigned issue of fact, insufficient to defeat the motion ( see Fernandez v. Laret, 43 A.D.3d 347, 841 N.Y.S.2d 78 [2007] ). Plaintiff testified that Wiesehof did not cut off Henry, was not merging at the moment of the accident, and that it was Henry who hit Wiesehof. Plaintiff also signed an accident report stating that Henry was the cause of the accident.