
    Duane E. Mabb et al., Appellants, v Arthur McIntyre, Respondent.
   Weiss, J.

Appeal from an order of the Supreme Court (Hughes, J.), entered March 12, 1987 in Albany County, which denied plaintiffs’ motion to dismiss the affirmative defense and counterclaim set forth in defendant’s amended answer.

The complaint in this negligence action alleged that plaintiff Duane E. Mabb was operating a motor vehicle in which his wife, plaintiff Carol Mabb, was a passenger. Their automobile struck the rear of a motor vehicle driven by defendant causing injuries to both plaintiffs. Defendant’s amended answer alleged the affirmative defense of failure to wear available seat belts and a counterclaim for contribution and/or indemnification from Duane Mabb in the event that Carol Mabb recovers a judgment against defendant. Plaintiffs moved to dismiss the affirmative defense on the ground that it was without merit and to dismiss the counterclaim for failure to state a cause of action. Supreme Court rejected, as "patently ridiculous”, plaintiffs’ argument that the affirmative defense was defective for failure to give sufficient notice of what defendant intended to prove. The court also stated that the counterclaim constituted a "model pleading”.

The order denying dismissal of the affirmative defense and counterclaim should be affirmed. The affirmative defense gave plaintiffs adequate notice of what defendant will attempt to prove (see, Rich v Lefkovits, 56 NY2d 276, 280; see also, CPLR 3013). Plaintiffs’ argument that the seat belt defense should be dismissed on the ground that it has no factual foundation is premature. That is a question to be determined at trial. In addition, the counterclaim sufficiently alleges a cause of action for contribution, namely, that the alleged negligence of Duane Mabb as operator of plaintiffs’ car contributed to or caused the accident. The specific acts of his negligence may be demanded in a bill of particulars.

Order affirmed, with costs. Mahoney, P. J., Casey, Weiss and Yesawich, Jr., JJ., concur.  