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Otolino Machado v. Roman Henry

New York Supreme and/or Appellate Courts Appellate Division, First Department


June 7, 2012

OTOLINO MACHADO,
PLAINTIFF-APPELLANT,
v.
ROMAN HENRY,
DEFENDANT,
THOMAS KARL WIESEHOF, ET AL.,
DEFENDANTS-RESPONDENTS.

Machado v Henry

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 7, 2012

Gonzalez, P.J., Friedman, Renwick, Manzanet-Daniels, Roman, JJ.

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 AD3d 588 [2011]; Neryaev v Solon, 6 AD3d 510 [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 AD3d 347 [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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 7, 2012

CLERK

20120607

© 1992-2012 VersusLaw Inc.



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