
    Ralph Attianese, Appellant, v. State of New York, Respondent.
    (Claim No. 35347.)
   Per Curiam.

Appeal from a judgment of the Court of Claims, entered upon a decision, which dismissed a claim for damages for personal injuries sustained in a highway accident. Claimant, operating an automobile on a clear night and on a dry pavement, was, according to his testimony, blinded by the lights of an approaching automobile; pulling to the right, his right wheel went upon the shoulder, and on pulling back onto the highway his ear went into a spin. He was seriously injured and recalled nothing more. There was no other eyewitness. The automobile was discovered on the opposite shoulder, with a supposed wheel track extending to the rear some 132 feet to the pavement. Claimant contends that the track was not made by his car and asserts on the basis of some circumstantial evidence that his car crossed the highway almost directly from the right shoulder where, according to claimant’s proof, there existed a rut from 100 to 125 feet long and from 2 to 5 inches deep, the existence of which is assigned as negligence and the cause of the accident. There was other proof, which the trial court accepted, that the right shoulder was in good condition and that there was no physical evidence that claimant’s vehicle entered upon it. At best, claimant’s ease presented no more than an open issue of fact and we find no basis whatsoever for disturbing the trial court’s determination that claimant failed to sustain the burden of proof as respected the State’s alleged negligence or his freedom from contributory negligence. Judgment affirmed, without costs. Gibson, P. J., Herlihy, Reynolds and Staley, Jr., JJ., concur. Taylor, J., not voting. [35 Misc 2d 1010.]  