Opinion
85 CA 15-01133.
02-11-2016
Alexander G. WEISER, Plaintiff–Appellant, v. Maryclaire P. WILBER and Frederick J. Wilber, Defendants–Respondents.
Gelber & O'Connell, LLC, Amherst (Herschel Gelber of Counsel), for Plaintiff–Appellant. Law Offices of Destin C. Santacrose, Buffalo (Elise L. Cassar of Counsel), for Defendants–Respondents.
Gelber & O'Connell, LLC, Amherst (Herschel Gelber of Counsel), for Plaintiff–Appellant.
Law Offices of Destin C. Santacrose, Buffalo (Elise L. Cassar of Counsel), for Defendants–Respondents.
Opinion
MEMORANDUM:
Plaintiff commenced this action to recover damages for injuries he sustained in a motor vehicle accident. Contrary to plaintiff's contention, Supreme Court properly denied that part of his motion seeking to strike defendants' first affirmative defense insofar as that defense is premised on plaintiff's failure to wear a seat belt. Although plaintiff met his initial burden on that part of the motion, defendants raised a triable issue of fact by submitting expert proof in the form of an affidavit from a police officer, who conducted an investigation of the accident and concluded that plaintiff was not wearing his seatbelt (see Regan v. Ancoma, Inc., 11 A.D.3d 1016, 1017, 782 N.Y.S.2d 480). Contrary to plaintiff's contention, the affidavit is not based on “mere speculation” (Stickney v. Alleca, 52 A.D.3d 1214, 1215, 860 N.Y.S.2d 352) and, “[i]f there is any doubt as to the availability of a defense, it should not be dismissed” (Nahrebeski v. Molnar, 286 A.D.2d 891, 891, 730 N.Y.S.2d 646 [internal quotation marks omitted] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.