TENEZACA v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (2026)

DECISION & ORDER

In an action to recover damages, inter alia, for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J), entered April 11, 2023, and (2) an order of the same court entered November 28, 2023.  The order entered April 11, 2023, denied the plaintiff's motion pursuant to General Municipal Law § 50–e(5) to deem a late notice of claim timely served nunc pro tunc or, in the alternative, for leave to serve a late notice of claim.  The order entered November 28, 2023, granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

ORDERED that the order entered April 11, 2023, is reversed, on the facts and in the exercise of discretion, that branch of the plaintiff's motion which was to deem a late notice of claim timely served nunc pro tunc is granted, and that branch of the motion which was for leave to serve a late notice of claim is denied as academic;  and it is further,

ORDERED that the order entered November 28, 2023, is reversed, on the law, and the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint is denied;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On August 31, 2015, the plaintiff, Estefani Tenezaca, gave birth to the infant A.J.L. (hereinafter the infant) at Elmhurst Hospital Center (hereinafter Elmhurst), a facility controlled by the defendant.  The infant was born prematurely at 30 weeks gestation and was treated at Elmhurst until September 16, 2015, when she was transferred to another hospital.

In July 2016, the plaintiff, as parent and natural guardian of the infant, served a notice of claim on the defendant, alleging, among other things, medical malpractice in the defendant's treatment of the infant.  The plaintiff, as parent and natural guardian of the infant, commenced this action in December 2016, inter alia, to recover damages for medical malpractice.

Following the exchange of discovery, lengthy adjournments, and other motion practice, in December 2022, the plaintiff moved pursuant to General Municipal Law § 50–e(5) to deem the late notice of claim timely served nunc pro tunc or, in the alternative, for leave to serve a late notice of claim.  The plaintiff alleged that the infant suffered from cerebral palsy, blindness, seizures, and developmental delays as a result of congestive heart failure and bilateral brain hemorrhages, which were caused by excessive and contraindicated transfusions of packed red blood cells that the infant received during her treatment at Elmhurst.  In support of her motion, the plaintiff submitted, among other things, the Elmhurst medical records and three expert affidavits.  The Elmhurst records showed, inter alia, that the infant was referred to the neonatal intensive care unit due to respiratory distress and that during the time that the infant was at Elmhurst, she experienced episodes of apnea, bradycardia, and oxygen desaturation.  The infant received, among other treatments, transfusions of packed red blood cells just prior to being transferred to another hospital.  The plaintiff's experts opined that the infant suffered a massive bilateral parenchymal hemorrhage as a result of the treatment documented in Elmhurst's records.

In opposition to the plaintiff's motion, the defendant submitted, inter alia, affirmations by its own experts, who opined, among other things, that the Elmhurst records demonstrated that the red blood cell transfusions were within the standard of care and did not cause or contribute to the infant's alleged injuries.  In an order entered April 11, 2023, the Supreme Court denied the plaintiff's motion.

Subsequently, the defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to serve a timely notice of claim.  In an order entered November 28, 2023, the Supreme Court granted the motion.  The plaintiff appeals from both orders.

In determining whether to deem a late notice of claim timely served nunc pro tunc or to grant leave to serve a late notice of claim pursuant to General Municipal Law § 50–e(5), a court must consider all relevant circumstances, including:  (1) whether the public corporation has acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter;  (2) whether the delay substantially prejudiced the public corporation in maintaining its defense on the merits;  and (3) whether the plaintiff has demonstrated a reasonable excuse for failing to serve a timely notice of claim (see id.;  Moody–DuBois v. Westchester Med. Ctr., 238 AD3d 733, 734;  Matter of Williams v New York City Health & Hosps.  Corp., 237 AD3d 1101, 1103).

“Medical records can establish actual knowledge of the essential facts constituting a claim where they evince that the medical staff, by its acts or omissions, inflicted an injury on plaintiff” (Moody–DuBois v. Westchester Med. Ctr., 238 AD3d at 734–735 [internal quotation marks omitted];  see Wally G. v New York City Health & Hosps.  Corp. [Metro.  Hosp.], 27 NY3d 672, 677;  Matter of Cleary v. Nassau Health Care Corp., 215 AD3d 958, 959–960).  “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute actual knowledge of the facts constituting the claim” (Matter of Breslin v. Nassau Health Care Corp., 153 AD3d 1256, 1258 [internal quotation marks omitted];  see Matter of Williams v New York City Health & Hosps.  Corp., 237 AD3d at 1103).

Here, the plaintiff's experts reviewed the Elmhurst records and concluded that based upon the documentation appearing therein, there had been a departure from accepted medical practice.  Inasmuch as the Elmhurst records, upon independent review, suggested injury attributable to medical malpractice, those records provided the defendant with actual knowledge of the essential facts constituting the claim (see Moody–DuBois v. Westchester Med. Ctr., 238 AD3d at 735;  Matter of Williams v New York City Health & Hosps.  Corp., 237 AD3d at 1103;  Matter of Breslin v. Nassau Health Care Corp., 153 AD3d at 1258).  Additionally, the plaintiff made an initial showing that the defendant would not suffer any prejudice by the delay in serving a notice of claim, and the defendant failed to rebut that showing with particularized indicia of prejudice (see Moody–DuBois v. Westchester Med. Ctr., 238 AD3d at 735;  Matter of Breslin v. Nassau Health Care Corp., 153 AD3d at 1258).  The plaintiff also established a reasonable excuse for her failure to timely serve a notice of claim (see Moody–DuBois v. Westchester Med. Ctr., 238 AD3d at 735;  Matter of Bergado v New York City Health & Hosps.  Corp., 233 AD3d 676, 678).

Accordingly, the Supreme Court should have granted that branch of the plaintiff's motion which was to deem the late notice of claim timely served nunc pro tunc and denied, as academic, that branch of the motion which was for leave to serve a late notice of claim.  Furthermore, since the defendant's motion was predicated upon the failure to timely serve a notice of claim, the court should have denied the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint.

DILLON, J.P., BRATHWAITE NELSON, DOWLING and QUIRK, JJ., concur.