Jeanette Rios, Individually, Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2008)

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered December 16, 2005, which granted the infant plaintiff's motion for leave to serve a late notice of claim, implicitly denying defendant's cross motion to dismiss the complaint for failure to serve a timely notice of claim, and order, same court and Justice, entered February 28, 2007, which granted defendant's motion to renew its cross motion and, upon renewal, denied defendant's cross motion, unanimously affirmed, without costs.

The record evidence demonstrates that defendant's possession of the medical records constituted actual notice of the pertinent facts and that defendant would not be substantially prejudiced by plaintiffs' delay in serving the notice of claim (see Bayo v. Burnside Mews Assoc., 45 A.D.3d 495, 846 N.Y.S.2d 57 [2007];  De La Cruz v. New York City Health & Hosps. Corp., 13 A.D.3d 130, 786 N.Y.S.2d 52 [2004] ).   Plaintiffs submitted affirmations from a physician establishing that the medical records, on their face, evince that defendant failed to provide proper care to plaintiffs (compare Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ), and defendant's argument that the delay would prejudice it in defending the action because of an inability to reconstruct events and conversations is unconvincing (see Matter of Banegas-Nobles v. New York City Health and Hosps. Corp., 184 A.D.2d 379, 380, 585 N.Y.S.2d 376 [1992] ).