IN RE: Kendra CACERES (2026)

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioners appeal from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered August 3, 2022.  The order denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, the petition is granted, and the proposed notice of claim is deemed served.

In 2020, the petitioner Liliana Gallegos (hereinafter the mother) was receiving prenatal care at Queens Hospital Center (hereinafter the hospital), a hospital operated by the respondent, NYC Health and Hospitals (hereinafter NYCHHC).  On September 17, 2020, during an examination, the hospital's staff detected a deceleration in the fetal heartbeat and admitted the mother for induction of labor.  In March 2021, approximately six months after being discharged from the hospital, the infant petitioner was diagnosed with cystic encephalomalacia.

In December 2021, the petitioners commenced this proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, alleging that the infant petitioner sustained injuries as a result of medical malpractice over the course of the mother's care at the hospital.  In support of the petition, the petitioners submitted, inter alia, the proposed notice of claim and an affidavit from the mother.  The mother stated that after the hospital informed her at a follow-up visit that symptoms she observed were normal, she sought further medical opinions and only learned of the infant petitioner's condition in March 2021.

In an order entered August 3, 2022, the Supreme Court denied the petition and, in effect, dismissed the proceeding.  The petitioners appeal.

“ ‘A notice of claim is a condition precedent to the commencement of an action or special proceeding against a public corporation’ ” (Matter of Aime v New York City Health & Hosps.  Corp., 230 AD3d 759, 759 [internal quotation marks omitted], quoting Jara v Elmhurst Hosp. Ctr., 213 AD3d 653, 653).  “In determining whether to grant leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc under General Municipal Law § 50–e(5), the court, in its discretion, must consider all relevant facts and circumstances, including, but not limited to, whether (1) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in its defense” (Matter of Akangi v New York City Health & Hosps.  Corp., 233 AD3d 777, 778 [internal quotation marks omitted];  see Santos v Westchester Med. Ctr., 216 AD3d 1121, 1122).  Another factor to consider is whether the claimant was an infant at the time the claim arose and whether there is a nexus between infancy and delay in service (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 464;  Santos v Westchester Med. Ctr., 216 AD3d at 1122), which was the case here.  “ ‘[T]he presence or absence of any one factor is not determinative’ ” (Matter of Aime v New York City Health & Hosps.  Corp., 230 AD3d at 760 [internal quotation marks omitted], quoting Jara v Elmhurst Hosp. Ctr., 213 AD3d at 654).

Here, the petitioners established a reasonable excuse for the delay, to wit, the serious medical condition of the infant petitioner, which required numerous medical appointments while the condition of the infant petitioner was being assessed (see Moody–DuBois v Westchester Med. Ctr., 238 AD3d 733, 735–736;  Matter of Bergado v New York City Health & Hosps.  Corp., 233 AD3d 676, 678).  The petitioners failed to demonstrate that NYCHHC had actual knowledge of the facts underlying the claim within 90 days after the claim arose or a reasonable time thereafter, since the hospital's records did not evidence that the medical staff, by its acts or omissions, inflicted an injury attributable to malpractice (see Wally G. v New York City Health & Hosps.  Corp. [Metro.  Hosp.], 27 NY3d 672, 677;  Matter of Aime v New York City Health & Hosps.  Corp., 230 AD3d at 759).  However, “[s]ince the conduct at issue was fully documented in the medical records, the petitioner[s] made an initial showing that NYCHHC was not prejudiced by the delay in serving the notice of claim (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d at 466–467), and, in response, the NYCHHC made no showing of prejudice” (Matter of Bergado v New York City Health & Hosps.  Corp., 233 AD3d at 679;  see Matter of Balbuenas v New York City Health & Hosps.  Corp., 209 AD3d 642, 645;  Matter of Davis v Incorporated Vil. of Laurel Hollow, 195 AD3d 1019;  Matter of Brown v New York City Hous. Auth., 182 AD3d 594, 595).

Accordingly, on these facts, the Supreme Court improvidently exercised its discretion in denying the petition and, in effect, dismissing the proceeding.  Accordingly, we grant the petition and deem the proposed notice of claim served.

BARROS, J.P., GENOVESI, VOUTSINAS and LANDICINO, JJ., concur.