FIGUEROA v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION JACOBI MEDICAL CENTER (2008)

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered May 24, 2007, which, to the extent appealed from as limited by the briefs, adhered upon renewal to an earlier order granting plaintiff's motion to deem his notice of claim in 2000 timely served, nunc pro tunc, unanimously affirmed, without costs.   Appeal from earlier order, same court and Justice, entered November 7, 2005, unanimously dismissed, without costs, as superseded by the appeal from the later order.

Defendant's possession of plaintiff's medical records since the time of the alleged malpractice at birth in 1995 gave it actual notice of the alleged cause of the infant's cerebral palsy from the inception.   Given this knowledge of the essential facts and resultant lack of substantial prejudice, the delay in moving to file a notice of claim nunc pro tunc is not fatal (see Talavera ex rel. Rios v. New York City Health & Hosps. Corp., 48 A.D.3d 276, 851 N.Y.S.2d 189 [2008];  Caminero ex rel. Pineda v. New York City Health & Hosps. Corp. [Bronx Mun. Hosp. Ctr.], 21 A.D.3d 330, 800 N.Y.S.2d 173 [2005] ).