MOODY v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION

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Supreme Court, Appellate Division, First Department, New York.

Moody T. MOODY, etc., Plaintiff-Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, etc., Defendant-Appellant.

Decided: May 16, 2006

SAXE, J.P., MARLOW, SULLIVAN, GONZALEZ, MALONE, JJ. Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for appellant. Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for respondent.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered September 16, 2004, which, to the extent appealed from as limited by the briefs, granted the infant plaintiff's motion for leave to serve a late notice of claim, unanimously affirmed, without costs.

The court did not improvidently exercise its discretion in granting permission to file a late notice of claim after considering such factors as plaintiff's infancy, whether there was a reasonable excuse for the delay, whether the municipal defendant acquired actual knowledge of the pertinent facts constituting the claim, and whether the delay prejudiced defendant's ability to defend against the claim (General Municipal Law § 50-e[5];  Ali v. Bunny Realty Corp., 253 A.D.2d 356, 357, 676 N.Y.S.2d 166 [1998] ).   Under the circumstances, defendant's possession of the medical records sufficiently constituted actual notice of the pertinent facts, and the claim that the delay would be prejudicial because of the inability to reconstruct events and conversations was insufficient (Matter of McMillan v. City of New York, 279 A.D.2d 280, 718 N.Y.S.2d 819 [2001] ).

We have considered defendant's remaining arguments and find them without merit.