Ruiz v. Rochester Telephone Co. , 600 N.Y.S.2d 879 ( 1993 )

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 AD2d 41, 47, lv dismissed 74 NY2d 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 NY2d 444, 450). (Appeal from Order of Supreme Court, Ontario County, Curran, J.—Dismiss Affirmative Defense.) Present—Callahan, J. P., Balio, Doerr, Boomer and Boehm, JJ.