WILLIAMS v. NASSAU COUNTY MEDICAL CENTER (2004)

In an action to recover damages for medical malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), entered January 14, 2004, as granted the plaintiff's motion, in effect, for leave to serve a late notice of claim.

ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, and the motion is denied.

 The Supreme Court improvidently exercised its discretion in granting the plaintiff's motion, in effect, for leave to serve a late notice of claim approximately 10 years after the alleged malpractice giving rise to the plaintiff's injuries (see Matter of Flores v. County of Nassau, 8 A.D.3d 377, 777 N.Y.S.2d 739, lv. denied 3 N.Y.3d 606, 785 N.Y.S.2d 23, 818 N.E.2d 665).

 In exercising its discretion to grant leave to serve a late notice of claim, the court must consider various factors, including whether (1) the claimant is an infant, (2) the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits (see General Municipal Law § 50-e[5];  Matter of Flores v. County of Nassau, supra;  Matter of Cotten v. County of Nassau, 307 A.D.2d 965, 763 N.Y.S.2d 474;  Matter of Matarrese v. New York City Health & Hosps. Corp., 215 A.D.2d 7, 633 N.Y.S.2d 837).

 A claimant's infancy will automatically toll the applicable one year and 90-day statute of limitations for commencing an action against a municipality (see General Municipal Law § 50-i;  Henry v. City of New York, 94 N.Y.2d 275, 702 N.Y.S.2d 580, 724 N.E.2d 372).   However, the factor of infancy alone does not compel the granting of a motion for leave to serve a late notice of claim (see Matter of Flores v. County of Nassau, supra;  Matter of Cotten v. County of Nassau, supra).

In this case, the 10-year delay in moving, in effect, for leave to serve a late notice of claim was not the product of the plaintiff's infancy (see Matter of Flores v. County of Nassau, supra;  Matter of Cotten v. County of Nassau, supra;  Matter of Nairne v. New York City Health & Hosps. Corp., 303 A.D.2d 409, 755 N.Y.S.2d 855;  Berg v. Town of Oyster Bay, 300 A.D.2d 330, 752 N.Y.S.2d 58;  Matter of Brown v. County of Westchester, 293 A.D.2d 748, 741 N.Y.S.2d 281;  Matter of Matarrese v. New York City Health and Hosps. Corp., supra ).

Further, the fact that the plaintiff was not aware of the requirement to serve a notice of claim within 90 days of its accrual is not a reasonable excuse for the failure to do so (see Matter of Cotten v. County of Nassau, supra;  Matter of D'Anjou v. New York City Health and Hosps. Corp., 196 A.D.2d 818, 601 N.Y.S.2d 944).

 In addition, we are not persuaded that the defendants had actual notice of the claim within the requisite 90-day period, or within a reasonable time thereafter.   Although it is true they were in possession of the pertinent medical records, that did not establish that they had notice of the specific claim.  “The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed” (Matter of Sica v. Board of Educ. of City of N.Y., 226 A.D.2d 542, 543, 640 N.Y.S.2d 610;  see also Matter of Brown v. County of Westchester, supra ).

Finally, the plaintiff failed to establish that the defendants would not be substantially prejudiced in maintaining their defense on the merits as a result of the lengthy delay in moving, in effect, for leave to serve a late notice of claim (see Matter of Flores v. County of Nassau, supra;  Moise v. County of Nassau, 234 A.D.2d 275, 650 N.Y.S.2d 785;  Matter of Matarrese v. New York City Health and Hosps. Corp., supra ).

The plaintiff's remaining contentions are without merit.