Opinion
July 16, 1993
Appeal from the Supreme Court, Ontario County, Curran, J.
Present — Callahan, J.P., Balio, Doerr, Boomer and Boehm, JJ.
Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied plaintiff's motion to dismiss defendant's second affirmative defense, premised on plaintiff's failure to use a seat belt. Plaintiff contends that, as the operator of a tractor-trailer, he was not legally required to wear a seat belt (see, Vehicle and Traffic Law §§ 151-a, 1229-c). "The fact that the law did not require plaintiff to wear his seat belt at the time of the accident is of no moment" (Gardner v. Honda Motor Co., 145 A.D.2d 41, 47, lv dismissed 74 N.Y.2d 715). A jury should be allowed to consider a plaintiff's failure to wear an available seat belt in assessing damages (Spier v. Barker, 35 N.Y.2d 444, 450).