State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 23, 2014 516162 

________________________________

ARTHUR R. VANDETTA et al.,

Appellants,

v MEMORANDUM AND ORDER

IDA M. ADAMS,

Respondent.

________________________________

Calendar Date: September 5, 2014

Before: Stein, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

__________

Arthur Vandetta, Mechanicville, appellant pro se.

Horigan, Horigan & Lombardo, PC, Amsterdam (Peter M.

Califano of counsel), for respondent.

__________

Stein, J.P.

Appeal from an order of the Supreme Court (Ferradino, J.),

entered November 6, 2012 in Saratoga County, which granted

defendant's motion for summary judgment dismissing the complaint.

Plaintiff Arthur R. Vandetta and his wife, derivatively,

commenced this action to recover damages for injuries that

Vandetta allegedly sustained in a motor vehicle accident with

defendant in September 2007. Vandetta alleges that he sustained,

among other things, an aggravation of a preexisting ventral

hernia condition and an injury to his left shoulder, both of

which required surgery. Without contesting liability, defendant

moved for summary judgment dismissing the complaint after the

completion of discovery, arguing that Vandetta had not sustained

a serious injury as defined in Insurance Law § 5102 (d) as a

result of the accident. Plaintiffs now appeal from Supreme
-2- 516162 

Court's order granting defendant's motion and dismissing the

complaint.1

As the movant, defendant bore the initial burden of

establishing, through competent medical evidence, that Vandetta

did not suffer a serious injury as a result of the accident (see 

Toure v Avis Rent A Car Sys., 98 NY2d 345, 352 [2002]; Raucci v

Hester, 119 AD3d 1044, 1044 [2014]; Putnam v Sysco Corp., 101

AD3d 1571, 1572 [2012]; DeHaas v Kathan, 100 AD3d 1057, 1058

[2012]; Cole v Roberts-Bonville, 99 AD3d 1145, 1146 [2012]). In

support of the motion, defendant proffered, among other things,

Vandetta's medical records and deposition testimony, as well as a

report from Thomas Eagan, a certified orthopedic surgeon who

examined Vandetta. Eagan's report concluded that Vandetta's

injuries – a rotator cuff tear of the left shoulder and an

abdominal hernia – predated the accident and that neither injury

was caused thereby.2 Vandetta's medical records outlined his

significant medical history – he suffers from Chrohn's disease

and colitis and various complications related thereto; he has

been disabled since 1980 and has undergone several surgeries. 

Relying primarily upon Eagan's report and Vandetta's medical

history, Supreme Court determined that defendant carried her

initial burden and that plaintiffs failed to raise a material

question of fact regarding any serious injury caused by the

accident. While we agree with Supreme Court regarding the

abdominal hernia, we conclude that defendant failed to meet her

initial burden as to the left shoulder injury and, therefore,

Supreme Court should not have granted summary judgment dismissing

that claim. 

1 Although both plaintiffs are listed on the notice of

appeal, only Vandetta has filed a brief. 

2 To the extent that plaintiffs' complaint and bill of

particulars alleged that Vandetta sustained additional injuries

that fell within one or more of the serious injury categories,

those claims have been abandoned by plaintiffs' failure to

address such injuries on appeal (see Foley v Cunzio, 74 AD3d

1603, 1604 n [2010]).
-3- 516162 

Supreme Court found the shoulder injury to be preexisting,

noting that Eagan had made such a determination based upon a

complaint made by Vandetta to his treating physician in 2004.

Eagan's determination that the left shoulder injury was unrelated

to the accident was premised upon the misplaced belief that

Vandetta had previously complained of left shoulder pain and his

conclusion that the tear in the shoulder was degenerative in

nature was similarly premised on that mistaken belief. However,

our review of the doctor's report documenting such complaint

reveals that it merely indicates that Vandetta had sought a

letter from the physician excusing him from wearing the shoulder

strap of his seatbelt because it caused him discomfort. The

doctor's note makes no reference to shoulder pain and was made in

the context of an office visit during which Vandetta made

complaints relative to his gastrointestinal issues. In fact,

Vandetta's preaccident medical records are completely devoid of

any indication that he suffered from shoulder pain or any

condition regarding his shoulder, and Vandetta testified at his

deposition that he had no issues with his shoulder before the

accident. 

While Eagan also opined that Vandetta's left shoulder

injury was not related to the accident based upon the length of

time between the accident and when Vandetta first sought

treatment therefor, we note that Vandetta complained about

shoulder pain approximately one month after the accident,

physical therapy was ordered and he was diagnosed with a rotator

cuff tear and was advised that he should wait to have surgery to

repair the tear until he had recovered from another medical

condition.3 In our view, inasmuch as Eagan's opinion regarding

Vandetta's shoulder injury was not based upon competent medical

evidence, defendant failed to carry her initial burden of

establishing the lack of a causal relationship between the

accident and the alleged injury to Vandetta's left shoulder with

evidence sufficient to eliminate any material issues of fact with

respect thereto (see Russell v Pulga-Nappi, 94 AD3d 1283, 1284

3 He ultimately had such surgery in 2011.
-4- 516162 

[2012]; Colavito v Steyer, 65 AD3d 735, 736 [2009]).4 Thus,

defendant's motion should have been denied to this extent,

without regard to the sufficiency of plaintiffs' opposing papers

(see Pezzino v Woodruff, 103 AD3d 944, 944 [2013]).

As to the abdominal hernia, Eagan could not relate this

condition to the accident, noting Vandetta's history of symptoms

predating the injury, including a previous ventral hernia repair. 

Indeed, Vandetta's medical records establish that he suffered

from a chronic or recurrent hernia, and his own treating

physicians noted the likelihood that the hernia at issue was the

result of his numerous operations or preexisting conditions. In

light of this competent evidence that Vandetta's hernia was

related to a preexisting condition, the burden shifted to

plaintiffs to come forward with "objective medical evidence

distinguishing [his] preexisting condition from the injuries

claimed to have been caused by [this] accident" (Thomas v Ku,

112 AD3d 1200, 1201 [2013] [internal quotation marks and citation

omitted]; see Pommells v Perez, 4 NY3d 566, 580 [2005]). 

To that end, plaintiffs proffered, among other things, the

affidavit of Hanumappa Visweswaraiah, one of Vandetta's treating

physicians, who concluded that the accident exacerbated the

hernia. However, Visweswaraiah did not offer objective medical

evidence distinguishing Vandetta's preexisting condition from the

hernia alleged to have been caused by the accident (see Thomas v

Ku, 112 AD3d at 1201; Russell v Cornell Univ., 110 AD3d 1236,

1238 [2013]; MacMillan v Cleveland, 82 AD3d 1388, 1389 [2011];

Foley v Cunzio, 74 AD3d 1603, 1604 [2010]). Nor did plaintiffs

provide any objective medical proof establishing how Vandetta's

alleged limitations related to such aggravation fell within any

of the categories of Insurance Law § 5102 (d). Thus, Supreme

Court properly granted summary judgment dismissing the complaint

insofar as it alleged a claim of serious injury relating to the

4 Similarly, Eagan's opinion regarding whether the shoulder

injury constituted a serious injury was also premised upon his

unsupported finding that the injury was preexisting and is,

therefore, insufficient to meet defendant's burden with regard to

such issue.
-5- 516162 

hernia.

McCarthy, Egan Jr., Lynch and Clark, JJ., concur.

ORDERED that the order is modified, on the law, without

costs, by reversing so much thereof as granted defendant's motion

for summary judgment dismissing that part of the complaint

alleging that plaintiff Arthur R. Vandetta suffered a serious

injury to his left shoulder; motion denied to that extent; and,

as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court