BERETE v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2008)

Order, Supreme Court, Bronx County (Douglas E. McKeon.  J.), entered January 6, 2006, which granted plaintiff's motion to deem his notice of claim timely served nunc pro tunc, unanimously reversed, on the law, without costs, the disposition vacated and the matter remanded to Supreme Court for reconsideration of plaintiff's application for leave to serve a late notice of claim.

 The court erroneously concluded that it was without discretion to deny leave to serve a late notice of claim to a plaintiff who allegedly suffered a neonatal injury at a facility owned by defendant Health and Hospitals Corporation, where a medical record existed memorializing the details of the delivery.  General Municipal Law § 50–e (5) requires courts to exercise discretion in determining whether to grant or deny leave to file a late notice of claim.  The statute “contains a nonexhaustive list of factors that the court should weigh, and compels consideration of all relevant facts and circumstances” (Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ).  The three relevant statutory criteria in this case are whether defendants had actual knowledge of the essential facts constituting the claim, plaintiff's infancy, and whether the delay in serving the notice of claim substantially prejudiced defendants.

Plaintiff alleges trauma, seizures, brain damage and developmental delays resulting from defendants' use of forceps during his delivery.  In support of his motion, he submitted medical records noting that he had sustained a “moderate cephalohematoma” and “moderate facial bruising on the right cheek.”  We do not, however, pass judgment on the merits of plaintiff's claim, nor defendants' argument that these same records indicate a difficult delivery albeit without indication of long-term injury.

These issues go to the question of whether Supreme Court, in the exercise of its sound discretion, should grant plaintiff's application to file a late notice of claim (Matter of Semyonova v. New York City Hous. Auth., 15 A.D.3d 181, 789 N.Y.S.2d 38 [2005] ).  Accordingly, we remand to permit Supreme Court to exercise its discretion “after consideration of the factors and circumstances relevant to an application pursuant to General Municipal Law § 50–e (5)” (Matter of Jordan v. City of New York, 38 A.D.3d 336, 339, 833 N.Y.S.2d 8 [2007] ).