NAHREBESKI v. MOLNAR

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Supreme Court, Appellate Division, Fourth Department, New York.

Victor S. NAHREBESKI, Plaintiff-Appellant, v. Michael A. MOLNAR, Leaseway Dedicated Logistics, Gale Denn, Erie County Sheriff's Department and County of Erie, Defendants-Respondents.

Decided: September 28, 2001

PRESENT:  PINE, J. P., WISNER, HURLBUTT, KEHOE and GORSKI, JJ. Christopher A. Spence, for plaintiff-appellant. Joseph F. Reina, for defendants-respondents Gale Denn, Erie County Sheriff's Department and County of Erie. Susan A. Eberle, for defendants-respondents Michael A. Molnar and Leaseway Dedicated Logistics.

 Supreme Court properly denied that part of plaintiff's motion pursuant to CPLR 3211(b) seeking dismissal of each defendant's affirmative defense of contributory negligence.   Plaintiff failed to support his motion “with an affidavit by one with personal knowledge of the facts or other evidentiary proof” (Arriaga v. Laub Co., 233 A.D.2d 244, 649 N.Y.S.2d 707).   The vehicle accident report and police reports submitted by plaintiff constitute inadmissible hearsay and thus fail to establish the manner in which the accident occurred (see, Aetna Cas. & Sur. Co. v. Island Transp. Corp., 233 A.D.2d 157, 157-158, 649 N.Y.S.2d 675).   The court also properly denied that part of plaintiff's motion pursuant to CPLR 3211(b) seeking dismissal of each defendant's affirmative defense of failure to wear a seat belt.   Although plaintiff met his initial burden by challenging the factual basis for that affirmative defense, defendants submitted evidence raising an issue of fact whether plaintiff was properly wearing the seat belt at the time of the accident.  “If there is any doubt as to the availability of a defense, it should not be dismissed” (Warwick v. Cruz, 270 A.D.2d 255, 704 N.Y.S.2d 849).   Plaintiff's CPLR 3211(b) motion was directed only at those two affirmative defenses.   Thus, contrary to the further contention of plaintiff, the court did not err in failing to dismiss each defendant's affirmative defense based on CPLR article 16.

 Finally, we conclude that the court did not abuse its discretion in granting the cross motion of defendants Michael A. Molnar and Leaseway Dedicated Logistics seeking leave to amend their answer to assert the emergency doctrine defense (see, CPLR 3025[b] ).  “Leave to amend a pleading should be freely granted in the absence of prejudice to the nonmoving party where the amendment is not patently lacking in merit” (Letterman v. Reddington, 278 A.D.2d 868, 718 N.Y.S.2d 503).

Order unanimously affirmed without costs.

MEMORANDUM: