IN RE: Humza ALI (2009)

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the respondent New York City Health & Hospitals Corporation appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated May 8, 2008, which granted the petition.

ORDERED that the order is reversed, on the law, with costs, and the petition is denied.

 The Supreme Court improvidently exercised its discretion in granting the petition for leave to serve a late notice of claim for the alleged medical malpractice.   The balancing of factors under General Municipal Law § 50-e(5) predominates against permitting service of a late notice of claim in this case.   The mere fact that the New York City Health & Hospitals Corporation (hereinafter the hospital) was in possession of the infant's medical records did not, without more, establish that the hospital had actual knowledge of the essential facts constituting the claim (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Arias v. New York City Health & Hosps. Corp. (Kings County Hosp. Ctr.), 50 A.D.3d 830, 832, 855 N.Y.S.2d 265).   The petitioner failed to satisfactorily explain a nine-year delay in seeking to serve a late notice of claim (see Beretey v. New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 56 A.D.3d 591, 594, 868 N.Y.S.2d 232).   The delay is not directly attributable to the infant petitioner's infancy (see Matter of Doe v. Goshen Cent. School Dist., 13 A.D.3d 526, 787 N.Y.S.2d 75;  Matter of Lennon v. Roosevelt Union Free School Dist., 6 A.D.3d 713, 775 N.Y.S.2d 537).   Moreover, the petitioner failed to meet his burden of establishing that the hospital has not been prejudiced in maintaining its defenses on the merits (see Casias v. City of New York, 39 A.D.3d 681, 833 N.Y.S.2d 662;  Matter of Flores v. County of Nassau, 8 A.D.3d 377, 378, 777 N.Y.S.2d 739) given the lengthy and unexcused delay in seeking to serve the late notice of claim (see Beretey v. New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 56 A.D.3d at 594, 868 N.Y.S.2d 232;  Matter of King v. New York City Health & Hosps. Corp., 42 A.D.3d 499, 501, 840 N.Y.S.2d 611).