Rascoe v. Riteway Rentals, Inc.

Order, Supreme Court, Bronx County (Lewis Friedman, J.), entered on or about March 31, 1992, which, inter alia, granted defendant’s motion to dismiss notwithstanding the jury verdict in plaintiff’s favor, unanimously affirmed, without costs.

Plaintiff’s claim that defendant failed to provide him with an available seatbelt is without merit. The evidence demonstrates that plaintiff was unable to locate the seatbelt due to an obstruction caused by debris and papers covering the seatbelt. However, there is no evidence which indicates that said debris was the result of defendant’s failure to maintain the vehicle. Indeed, the evidence is that the debris is properly attributed to the driver of the vehicle and his employer, the third-party defendant. Accordingly, any "unavailability” of the seatbelt was not due to defendant’s negligence and thus plaintiff’s claims as against defendant were properly dismissed (CPLR 4401, 4404 [a]; see, Yalkut v City of New York, 162 AD2d 185). Concur—Ellerin, J. P., Wallach, Kupferman and Nardelli, JJ.