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DAVID J. BARNES, Respondent-Appellant, v. RICHARD L. PAULIN et al., Appellants-Respondents.

Ordered that the judgment is affirmed, without costs or disbursements.

The defendants failed to carry their burden of demonstrating that the evidence at trial on the issue of future pain and suffering so preponderated in their favor that the verdict in favor of the plaintiff could not have been reached on any fair interpretation of the evidence ( see Lolik v Big V Supermarkets, 86 NY2d 744; Zito v City of New York, 49 AD3d 872, 874).

Contrary to the plaintiffs contention, the trial court properly permitted the defendants' expert witness to testify as to the causal connection between the plaintiffs nonuse of an available seat belt and the injuries and damages sustained ( see Spier v Barker, 35 NY2d 444, 449-450). While the failure to use an available seat belt is an affirmative defense that must be properly pleaded and proved by a defendant ( see Vehicle and Traffic Law § 1229-c), "in the absence of proof to the contrary, it should be presumed that all of the seat belts with which a vehicle has been equipped are both operable and available" ( DiMauro v Metropolitan Suburban Bus Auth., 105 AD2d 236, 244; see Carpenter v County of Essex, 67 AD3d 1106, 1108; Karczmit v State of New York, 155 Misc 2d 486, 491).

The parties' remaining contentions are without merit.

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BARNES v. PAULIN
(May 25, 2010)