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Seiler v. Ricci's Towing Services, Inc.
Citations: 210 A.D.2d 972; 620 N.Y.S.2d 688
Court: Appellate Division of the Supreme Court of the State of New York; December 22, 1994; New York; State Appellate Court
The order has been modified and affirmed without costs. Defendants' appeal challenged the Supreme Court's dismissal of their affirmative defenses: assumption of risk, failure to use a seat belt and/or shoulder harness, failure to mitigate damages, and Statute of Limitations. The court correctly dismissed the assumption of risk defense, which was based on the allegation that the plaintiff could have avoided the accident, as per CPLR 1411. The defense of failure to use a seat belt and/or shoulder harness was also appropriately dismissed. The plaintiff demonstrated that she was wearing a seat belt at the time of the accident, while the defendants provided only conclusory affidavits lacking factual support, and the accident report they relied on was deemed hearsay. Regarding the failure to mitigate damages defense, the court dismissed it without prejudice, noting that the plaintiff had not yet been deposed, allowing for reassertion upon a factual basis. Although it might have been preferable to defer this decision until after discovery, the dismissal without prejudice achieved a similar outcome for the defendants. However, the court incorrectly dismissed defendant Guilford’s affirmative defense of the Statute of Limitations. Guilford had also asserted improper service of the summons and complaint, which survived the plaintiff’s motion. The court found it premature to conclude that the plaintiff would be able to commence a new action against Guilford under CPLR 306-b, even if Guilford prevails on his jurisdictional defense. Consequently, the order has been modified to deny the motion to dismiss Guilford’s Statute of Limitations defense and to reinstate that defense.