Semonian v. Seidenberg, 71 A.D.3d 1562 (N.Y. App. Div. 4th Dep't 2010). · Go Syfert
Semonian v. Seidenberg, 71 A.D.3d 1562 (N.Y. App. Div. 4th Dep't 2010). Cases Citing This Book View Copy Cite
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At page 1563 “We conclude that defendants met their initial burden of establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) in the instant accident but instead suffers from a “diffuse degenerative disease of his cervical spine which is causing cervical stenos…”1 citing casethe opinion's own words at *1563
  • Smyth, Theresa a. v. Mcdonald, Benjamin J., 101 A.D.3d 1789 (N.Y. App. Div. 4th Dep't 2012).published
    That, however, is not a reasonable explanation for the 31-month gap in treatment, which fatally undermines plaintiffs’ claim of serious injury with respect to the permanent consequential limitation of use and significant limitation of use…
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Richard D. Semonian
v.
Janice O. Seidenberg
Appellate Division of the Supreme Court of the State of New York.
Mar 26, 2010.
Published opinion
71 A.D.3d 1562
Cited by 1 opinion  |  Published

Appeal from an order of the Supreme Court, Erie County (James H. Dillon, J), entered June 1, 2009 in a personal injury action. The order denied the motion of defendants for summary judgment.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted and the complaint is dismissed.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by Richard D. Semonian (plaintiff)[*1563] when the vehicle that he was driving was struck by a vehicle operated by defendant Janice O. Seidenberg and owned by defendant the Buffalo News, Inc. We agree with defendants that Supreme Court erred in denying their motion for summary judgment dismissing the complaint. We conclude that defendants met their initial burden of establishing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) in the instant accident but instead suffers from a “diffuse degenerative disease of his cervical spine which is causing cervical stenosis.” Plaintiffs failed to raise an issue of fact to defeat the motion, particularly in view of their failure to offer a reasonable explanation for the 16-month gap in plaintiffs treatment (see Pommells v Perez, 4 NY3d 566, 572 [2005]; McConnell v Freeman, 52 AD3d 1190 [2008]; McCarthy v Bellamy, 39 AD3d 1166 [2007]). We also note that plaintiff admitted that, during the 16-month period in question, he continued to work on a full-time basis, moonlighted as a security guard, and exercised regularly by lifting weights and jogging. We thus conclude under the circumstances of this case that the court erred in denying defendants’ motion. Present—Scudder, P.J., Centra, Lindley and Green, JJ.