NARDI v. COUNTY OF NASSAU (2005)

In an action to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Nassau County (Davis, J.), entered February 20, 2004, which denied their motion to dismiss the complaint pursuant to CPLR 3211(a)(2) and (7) and General Municipal Law § 50-e and granted the plaintiffs' cross motion pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion which was for leave to serve a late notice of claim on behalf of the plaintiff Jessica Nardi, individually, and substituting therefor a provision denying that branch of the cross motion;  as so modified, the order is affirmed, with costs to the plaintiff Breana Nardi, an infant, by her mother and natural guardian, Jessica Nardi, and the proposed notice of claim is deemed served.

 Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs' cross motion which was for leave to serve a late notice of claim on behalf of the infant plaintiff, Breana Nardi.   The appellants had actual knowledge of the claim because they possessed the medical records of the plaintiff Jessica Nardi at the time of the alleged malpractice and the plaintiffs demonstrated an absence of substantial prejudice to the defendants as the result of the delay (see Matter of Olsen v. County of Nassau, 14 A.D.3d 706, 789 N.Y.S.2d 264;   Matter of Ramirez v. County of Nassau, 13 A.D.3d 456, 457, 787 N.Y.S.2d 71;  Matter of Celeste v. Nassau Health Care Corp./ Nassau County Med. Ctr., 8 A.D.3d 271, 272, 777 N.Y.S.2d 682;  Matter of Rosas v. 397 Broadway Corp., 309 A.D.2d 913, 914, 766 N.Y.S.2d 848).   Moreover, “where, as here, there was actual notice and an absence of prejudice, the absence of a reasonable excuse for failing to timely serve a notice of claim will not bar the granting of leave to serve a late notice of claim” (Matter of Hendershot v. Westchester Med. Ctr., 8 A.D.3d 381, 382, 777 N.Y.S.2d 743;  see Medley v. Cichon, 305 A.D.2d 643, 644-645, 761 N.Y.S.2d 666).

 Conversely, the Supreme Court improvidently exercised its discretion in granting that branch of the cross motion which was for leave to serve a late notice of claim on behalf of the plaintiff Jessica Nardi, individually.   The infancy toll (see CPLR 208) is personal to the infant plaintiff, Breana Nardi, and does not extend to the derivative cause of action (see Vaynman v. Maimonides Med. Ctr., 4 A.D.3d 414, 415-416, 771 N.Y.S.2d 373;  Smith v. Long Beach City School Dist., 276 A.D.2d 785, 715 N.Y.S.2d 707;  Dong T. Chen v. New York City Health and Hosps. Corp., 270 A.D.2d 445, 446, 705 N.Y.S.2d 66).