IN RE: Sebastian GODOY (2008)

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the Nassau Health Care Corporation appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered March 5, 2007, as granted the petition to the extent of granting the petitioner leave to serve a late notice of claim to recover damages for medical malpractice that occurred on the date of his birth.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The Supreme Court providently exercised its discretion in granting leave to serve a late notice of claim alleging medical malpractice based upon evidence that the appellant acquired actual knowledge of the essential facts constituting the medical malpractice that allegedly occurred on the date of the petitioner's birth.   Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute “actual knowledge of the facts constituting the claim” (Cifuentes v. New York City Health & Hosps. Corp., 43 A.D.3d 385, 386, 840 N.Y.S.2d 433).   In support of the application, the petitioner submitted medical records (see Matter of Rivera-Guallpa v. County of Nassau, 40 A.D.3d 1001, 836 N.Y.S.2d 288;  Matter of Corvera v. Nassau County Health Care Corp., 38 A.D.3d 775, 776, 833 N.Y.S.2d 537;  Matter of Tomlinson v. New York City Health & Hosps. Corp., 190 A.D.2d 806, 593 N.Y.S.2d 565) and an affirmation of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Cifuentes v. New York City Health & Hosps. Corp., 43 A.D.3d 385, 386, 840 N.Y.S.2d 433;  Matter of Rios v. Westchester County Healthcare Corp., 32 A.D.3d 540, 542, 821 N.Y.S.2d 102).   In the opinion of the petitioner's expert, the medical records indicated, inter alia, that an alleged delay in transferring the petitioner from Nassau University Medical Center to Schneider Children's Hospital of Long Island Jewish Medical Center was a departure from accepted standards of medical care and that this delay proximately caused or contributed to the petitioner's injuries.

 Considering the overall circumstances present here, including the nature of the injuries and the mother's natural predisposition to be concerned first with her child's medical condition, the 16-month delay in serving a notice of claim was properly excused (see Matter of Gallino v. Village of Shoreham, 222 A.D.2d 506, 634 N.Y.S.2d 550;  Matter of Holmes v. New York City Hous. Auth., 201 A.D.2d 650, 651, 607 N.Y.S.2d 985;  Matter of Brown v. New York City Hous. Auth., 194 A.D.2d 667, 668, 599 N.Y.S.2d 92).

 Moreover, given that the appellant had actual knowledge of the facts constituting the medical malpractice claim and that the attending physician is still employed by the appellant, the appellant will not be substantially prejudiced by the delay (see Cifuentes v. New York City Health & Hosps. Corp., 43 A.D.3d at 386, 840 N.Y.S.2d 433;  Matter of Corvera v. Nassau County Health Care Corp., 38 A.D.3d 775, 777, 833 N.Y.S.2d 537;  Matter of Kurz v. New York City Health & Hosp. Corp., 174 A.D.2d 671, 571 N.Y.S.2d 533).