           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

85
CA 15-01133
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


ALEXANDER G. WEISER, PLAINTIFF-APPELLANT,

                      V                           MEMORANDUM AND ORDER

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.


     Appeal from an order of the Supreme Court, Erie County (Jeremiah
J. Moriarty, III, J.), entered October 3, 2014. The order, insofar as
appealed from, denied that part of the motion of plaintiff seeking to
strike defendants’ affirmative defense of failure to wear a seatbelt.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     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 AD3d 1016, 1017).
Contrary to plaintiff’s contention, the affidavit is not based on
“mere speculation” (Stickney v Alleca, 52 AD3d 1214, 1215) and, “[i]f
there is any doubt as to the availability of a defense, it should not
be dismissed” (Nahrebeski v Molnar, 286 AD2d 891, 891 [internal
quotation marks omitted]).




Entered:    February 11, 2016                   Frances E. Cafarell
                                                Clerk of the Court
