IN RE: Leroy SMITH (2018)

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated June 21, 2017.  The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is affirmed, with costs.

The petitioner commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim alleging medical malpractice upon the respondent.  The Supreme Court denied the petition and, in effect, dismissed the proceeding.  The petitioner appeals.

In exercising discretion to grant leave to serve a late notice of claim, a court must consider whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after it accrued or within a reasonable time thereafter (see General Municipal Law § 50–e[5];  Wally G. v. New York City Health & Hosps. Corp. [Metro. Hosp.], 27 N.Y.3d 672, 675, 37 N.Y.S.3d 30, 57 N.E.3d 1067).  Other factors include whether the claimant provided a reasonable excuse for the failure to serve a timely notice of claim and whether the delay substantially prejudiced the respondent in defending the claim on the merits (see General Municipal Law § 50–e[5];  Matter of Rosenblatt v. New York City Health & Hosps. Corp., 149 A.D.3d 961, 962, 53 N.Y.S.3d 119;  Lyles v. New York City Health & Hosps. Corp., 121 A.D.3d 648, 649, 993 N.Y.S.2d 344).

The Supreme Court providently exercised its discretion in declining to grant leave to serve a late notice of claim.  The petitioner's ignorance of the requirement to serve the notice of claim within 90 days after the claim arose did not constitute a reasonable excuse (see Matter of Minkowicz v. City of New York, 100 A.D.3d 1000, 954 N.Y.S.2d 628;  Meyer v. County of Suffolk, 90 A.D.3d 720, 721, 934 N.Y.S.2d 235;  Matter of Bush v. City of New York, 76 A.D.3d 628, 906 N.Y.S.2d 597).  Furthermore, the petitioner failed to demonstrate through admissible medical evidence that he was incapacitated to such an extent that he could not have complied with the statutory requirement to serve a timely notice of claim (see Matter of Cuccia v. Metropolitan Transp. Auth., 150 A.D.3d 849, 850, 55 N.Y.S.3d 83;  Matter of Thill v. North Shore Cent. Sch. Dist., 128 A.D.3d 976, 978, 10 N.Y.S.3d 144;  Matter of Wright v. City of New York, 99 A.D.3d 717, 718, 951 N.Y.S.2d 750).

Additionally, the evidence submitted by the petitioner did not establish that the respondent had actual knowledge of the essential facts constituting the claim within the requisite 90–day period or a reasonable time thereafter.  Merely having or creating hospital records, without more, does not establish actual knowledge of a potential claim where the records do not evince that the medical staff, by its acts or omissions, inflicted an injury on the petitioner attributable to malpractice (see Wally G. v. New York City Health & Hosps. Corp. [Metro. Hosp.], 27 N.Y.3d at 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067;  Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Matter of Ramos–Elizares v. Westchester County Healthcare Corp., 94 A.D.3d 1130, 1131, 942 N.Y.S.2d 794).  Here, the petitioner failed to establish that the alleged malpractice was apparent from an independent review of the medical records.

Accordingly, the Supreme Court providently exercised its discretion in denying the petition and, in effect, dismissing the proceeding.

DILLON, J.P., SGROI, HINDS–RADIX, BRATHWAITE NELSON and IANNACCI, JJ., concur.