Linda O'Dell v Courtney P. Caswell

O'Dell v Caswell 2004 NY Slip Op 02924 [6 AD3d 592] April 19, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2004

Linda O'Dell, Respondent, Aimee O'Dell, Respondent-Appellant, et al., Plaintiff,
v
Courtney P. Caswell et al., Defendants, and Charles S. Kelly III et al., Appellants-Respondents.

—[*1]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. [*2]

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 failed 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.