RODRIGUEZ v. Padma Patel, M.D., Defendant. (2000)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 2, 1998, which, in an action for medical malpractice, insofar as appealed from, granted infant plaintiff's motion to deem her notice of claim timely filed, unanimously affirmed, without costs.

Defendants, who made a record of plaintiff's medical condition during her hospital stay from July 13 to September 3, 1991, have known all along the essential facts constituting plaintiff's claim, namely, that she was suffering from herpes encephalitis that was not treated with an anti-viral agent until July 31, 1991, and that she suffered severe brain damage between July 13 and July 31, 1991.   Such knowledge, along with plaintiff's infancy, justified relief excusing the late service of a notice of claim (see, Spaulding v. New York City Health & Hosps. Corp., 210 A.D.2d 128, 620 N.Y.S.2d 53;  Matter of Tomlinson v. New York City Health & Hosps. Corp., 190 A.D.2d 806, 593 N.Y.S.2d 565;  cf., Henry v. City of New York, 94 N.Y.2d 275, 702 N.Y.S.2d 580, 724 N.E.2d 372).

MEMORANDUM DECISION.