IN RE: Claudette ATKINSON (2020)

Order, Supreme Court, Bronx County (George J. Silver, J.), entered December 13, 2018, which granted petitioner leave to serve a late notice of claim, unanimously reversed, on the law and the facts, without costs, the petition denied, and the proceeding dismissed.

Petitioner seeks leave to serve a late notice of claim alleging that respondents New York City Health & Hospitals Corp. and Alina Purcea, M.D. (together, HHC) failed to provide her with timely referrals for diagnostic testing at her appointment on December 22, 2017, resulting in delay of diagnosis of her breast cancer until March 2018.  Petitioner retained counsel in July 2018, and counsel commenced this proceeding in August 2018.

Petitioner failed to show that HHC had actual notice of her claim within 90 days of accrual of the claim, or a reasonable time thereafter.  HHC's “mere possession or creation of medical records does not ipso facto establish that it had ‘actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff’ ” (Wally G. v. New York City Health & Hosps. Corp. [Metro. Hosp.], 27 N.Y.3d 672, 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067 [2016] ).  Here, HHC records of petitioner's treatment do not on their face show any negligence, malpractice or injury to plaintiff, and plaintiff did not submit a physician's affirmation to make such a showing (Matter of Kelley v. New York City Health & Hosps. Corp., 76 A.D.3d 824, 828, 907 N.Y.S.2d 11 [1st Dept. 2010] ).

Likewise, petitioner failed to demonstrate the lack of any prejudice to HHC from the delay, as HHC's “possession of medical records that could not alert it to a claim of malpractice obviously cannot, ipso facto, establish a lack of prejudice” (Kelley, 76 A.D.3d at 828, 907 N.Y.S.2d 11).  Because petitioner offered no other basis for the lack of prejudice to HHC, the burden never shifted to HHC to show prejudice from the delay (Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 467–468, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016] ).

Petitioner also failed to show a reasonable excuse for her delay in serving the notice of claim.  She did not provide any specific information or medical evidence that would support her claim that her delay was reasonable (see Mittermeier v. State of New York, 101 A.D.3d 426, 427, 955 N.Y.S.2d 565 [1st Dept. 2012], lv denied 21 N.Y.3d 858, 2013 WL 2476546 [2013] ).