Opinion
October 10, 1991
Appeal from the Supreme Court, Bronx County (Howard Silver, J.).
Plaintiff, employed as a truck driver by third-party defendant, was injured in an accident in the course of his employment, when the rental truck on which he was riding as a passenger, which was being driven by a co-employee, skidded off the roadway and struck a guardrail. It is alleged that the truck, owned by defendant, was not equipped with seat belts on the passenger's side.
Defendant's motion for summary judgment was properly denied. (See, Rennie v. Barbarosa Transp., 151 A.D.2d 379.) Workers' Compensation Law § 29 (6) does not provide a complete defense where, in addition to the negligence of a co-employee, there are allegations of affirmative negligence by the third-party (Carpenter v. Miller, 132 A.D.2d 859). Defendant/third-party plaintiff has failed to show as a matter of law that there is no triable issue of fact as to the presence of seat belts on the passenger side of the truck in which the plaintiff was injured.
We have reviewed defendant/third-party plaintiff's additional arguments, and find them to be without merit.
Concur — Rosenberger, J.P., Ellerin, Smith and Rubin, JJ.