LEONETTI LEO NETTI v. DAS (1998)

Supreme Court, Appellate Division, First Department, New York.

Alex LEONETTI, an Infant, by His Moth-er and Natural Guardian, Marie LEO-NETTI, Plaintiff-Appellant, v. Hasi DAS, et al., Defendants-Respondents.

Decided: December 10, 1998

SULLIVAN, J.P., MILONAS, WALLACH, WILLIAMS and MAZZARELLI, JJ.

Sandra D. Janin, for Plaintiff-Appellant. John D. Paterniti, for Defendants-Respondents.

Order, Supreme Court, New York County (William Davis, J.), entered June 9, 1997, which, in an action for medical malpractice, denied plaintiff's motion to serve a late notice of claim, unanimously affirmed, without costs.

The motion was properly denied because the medical records in defendant's possession did not give it notice of the facts constituting plaintiff's claim, and the nearly 10-year delay in serving a notice of claim was not attributable to plaintiff's infancy and has prejudiced defendant's ability to investigate the claim and defend the action (see, Matter of Matarrese v. New York City Health & Hosps. Corp, 215 A.D.2d 7, 633 N.Y.S.2d 837, lv. denied 87 N.Y.2d 810, 642 N.Y.S.2d 859, 665 N.E.2d 661).

MEMORANDUM DECISION.

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