Seiler v. Ricci's Towing Services, Inc.

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Defendants appeal from an order of Supreme Court that dismissed *973their affirmative defenses of assumption of risk, failure to use a seat belt and/or shoulder harness, failure to mitigate damages and Statute of Limitations. The affirmative defense of assumption of risk is improperly premised upon allegations that plaintiff could have avoided the accident (see, CPLR 1411). The court, therefore, properly dismissed that affirmative defense.

The court also properly dismissed the…