O'Dell v. Caswell

Appellate Division of the Supreme Court of New York

O'Dell v. Caswell

6 A.D.3d 592, 774 N.Y.S.2d 817, 2004 N.Y. App. Div. LEXIS 4665

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 19, 2004

StatusPublished

This text of 6 A.D.3d 592 (O'Dell v. Caswell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Dell v. Caswell, 6 A.D.3d 592, 774 N.Y.S.2d 817, 2004 N.Y. App. Div. LEXIS 4665 (N.Y. Ct. App. 2004).

Pincite

Opinion

In an action to recover damages for personal injuries, etc., the defendants Charles S. Kelly III, and Superior Telephone, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Tolbert, J.), dated March 31, 2003, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Linda O’Dell on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and the plaintiff Aimee O’Dell separately appeals from so much of the same order as granted that branch of the motion of those defendants which was for summary judgment dismissing the complaint insofar as asserted by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

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

The defendants Charles S. Kelly III and Superior Telephone Inc. (hereinafter the defendants) made a prima facie showing that the plaintiffs Linda O’Dell and Aimee O’Dell (hereinafter the plaintiffs) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmation of the plaintiffs’ physician submitted in opposition to the motion [593]*593failed to establish the existence of a triable issue of fact with respect to Aimee O’Dell. However, the plaintiffs submitted sufficient evidence to raise a triable issue of fact as to whether Linda O’Dell sustained a serious injury.

Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Aimee O’Dell, and properly denied that branch of the motion which was for the same relief as to the plaintiff Linda O’Dell. Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.

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In an action to recover damages for personal injuries, etc., the defendants Charles S. Kelly III, and Superior Telephone, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Dutchess County (Tolbert, J.), dated March 31, 2003, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted by the plaintiff Linda O’Dell on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), and the plaintiff Aimee O’Dell separately appeals from so much of the same order as granted that branch of the motion of those defendants which was for summary judgment dismissing the complaint insofar as asserted by her on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

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

The defendants Charles S. Kelly III and Superior Telephone Inc. (hereinafter the defendants) made a prima facie showing that the plaintiffs Linda O’Dell and Aimee O’Dell (hereinafter the plaintiffs) did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject motor vehicle accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955 [1992]). The affirmation of the plaintiffs’ physician submitted in opposition to the motion [593]*593failed to establish the existence of a triable issue of fact with respect to Aimee O’Dell. However, the plaintiffs submitted sufficient evidence to raise a triable issue of fact as to whether Linda O’Dell sustained a serious injury.

Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them by the plaintiff Aimee O’Dell, and properly denied that branch of the motion which was for the same relief as to the plaintiff Linda O’Dell. Ritter, J.P., S. Miller, Townes, Crane and Rivera, JJ., concur.

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Bluebook (online)

6 A.D.3d 592, 774 N.Y.S.2d 817, 2004 N.Y. App. Div. LEXIS 4665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/odell-v-caswell-nyappdiv-2004.

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