IN RE: Lydia SPEED

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

IN RE: Lydia SPEED, appellant, v. A. HOLLY PATTERSON EXTENDED CARE FACILITY, etc., respondent-respondent, et al., respondents.

Decided: August 09, 2004

SONDRA MILLER, J.P., ROBERT W. SCHMIDT, REINALDO E. RIVERA, and ROBERT A. SPOLZINO, JJ. Rappaport, Glass, Greene & Levine, LLP, New York, N.Y. (James L. Forde of counsel), for appellant. Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christensen and Karen A. Fielder of counsel), for respondent-respondent and respondents.

In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a late notice of claim, the petitioner appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Jones, J.), dated August 27, 2003, as denied that branch of the petition which was for leave to serve a late notice of claim on the respondent A. Holly Patterson Extended Care Facility.

ORDERED that the order is reversed insofar as appealed from, on the facts and as a matter of discretion, with costs, that branch of the petition which was for leave to serve a late notice of claim on the respondent A. Holly Patterson Extended Care Facility is granted, and the notice of claim is deemed served on that respondent.

 A court may, in its discretion, grant a petition for leave to serve a late notice of claim under General Municipal Law § 50-e(5).   In so doing, the court shall consider whether or not the entity sought to be served received timely notice of the claim, whether or not it has been substantially prejudiced, and the reason for the delay (see Matter of Valestil v. City of New York, 295 A.D.2d 619, 744 N.Y.S.2d 701).

 Here, the petitioner is seeking damages for claims sounding in medical malpractice from the respondent A. Holly Patterson Extended Care Facility (hereinafter AHP) for its failure to implement, observe, and take proper medical precautions in light of her known seizure disorder (see Rey v. Park View Nursing Home, 262 A.D.2d 624, 692 N.Y.S.2d 686;  Stanley v. Lebetkin, 123 A.D.2d 854, 507 N.Y.S.2d 468;  see also Mossman v. Albany Med. Ctr. Hosp., 34 A.D.2d 263, 311 N.Y.S.2d 131;  cf. Fields v. Sisters of Charity Hosp., 275 A.D.2d 1004, 714 N.Y.S.2d 176).   Contrary to its contention, AHP's medical records were sufficient to put it on notice of the claim in this matter (see Medley v. Cichon, 305 A.D.2d 643, 644-645, 761 N.Y.S.2d 666;  Matter of Staley v. Piper, 285 A.D.2d 601, 603, 728 N.Y.S.2d 88;  Matter of Kurz v. New York City Health and Hosps. Corp., 174 A.D.2d 671, 673, 571 N.Y.S.2d 533;  Matter of Charles v. New York City Health and Hosps. Corp., 166 A.D.2d 526, 527-528, 560 N.Y.S.2d 703).   Furthermore, AHP's conclusory allegations that it was prejudiced due to the mere passage of time was insufficient in light of the facts set out in the medical records and its failure to show what investigation if any, it undertook (see Malcolm v. City of New York, 2 A.D.3d 696, 697, 770 N.Y.S.2d 79;  Matter of Tomlinson v. New York City Health and Hosps. Corp., 190 A.D.2d 806, 593 N.Y.S.2d 565;  Matter of Kurz v. New York City Health and Hosps. Corp., supra ).   While the petitioner's excuse was insufficient, the lack of a sufficient excuse is not fatal in this instance (see Matter of Shapiro v. County of Nassau, 5 A.D.3d 690, 774 N.Y.S.2d 752).   Under these circumstances, that branch of the petition which was for leave to serve a late notice of claim on AHP should have been granted.

In light of this determination we need not reach the petitioner's remaining contentions.

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