IN RE: Gabrielle BARNES

Reset A A Font size: Print

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

IN RE: Gabrielle BARNES, etc., et al., appellants, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, respondent.

Decided: January 26, 2010

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, ARIEL E. BELEN, and CHERYL E. CHAMBERS, JJ. Richard Paul Stone, New York, N.Y., for appellants. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Deborah A. Brenner of counsel), for respondent.

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), dated December 5, 2008, as denied that branch of their motion which was for leave to serve a late notice of claim on behalf of the infant petitioner.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In exercising its discretion to grant leave to serve a late notice of claim, the court must consider various factors, including whether (1) the claimant is an infant, (2) the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits (see General Municipal Law § 50-e[5];  Contreras v. KBM Realty Corp., 66 A.D.3d 627, 887 N.Y.S.2d 172;  Matter of Gonzalez v. City of New York, 60 A.D.3d 1058, 1059, 876 N.Y.S.2d 139;  Rowe v. Nassau Health Care Corp., 57 A.D.3d 961, 962, 871 N.Y.S.2d 330).

 Here, while the petitioners sought leave to serve a late notice of claim on behalf of an infant, this factor alone does not compel granting the application (see Contreras v. KBM Realty Corp., 66 A.D.3d 627, 887 N.Y.S.2d 172;  Arias v. New York City Health & Hosps. Corp.[Kings County Hosp. Ctr.], 50 A.D.3d 830, 832, 855 N.Y.S.2d 265;  Rowe v. Nassau Health Care Corp., 57 A.D.3d at 962, 871 N.Y.S.2d 330;  Flores v. County of Nassau, 8 A.D.3d 377, 378, 777 N.Y.S.2d 739).   Furthermore, the petitioners failed to satisfactorily explain their lengthy delay in seeking leave to serve a late notice of claim on behalf of the infant petitioner (see Webb v. New York City Health & Hosps. Corp., 50 A.D.3d 265, 855 N.Y.S.2d 65;  Matter of del Carmen v. Brentwood Union Free School Dist., 7 A.D.3d 620, 621, 777 N.Y.S.2d 152;  see also Seymour v. New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 21 A.D.3d 1025, 1026-1027, 801 N.Y.S.2d 370).

 The petitioners also failed to establish that the New York City Health and Hospitals Corporation (hereinafter the NYCHHC) acquired actual knowledge of the facts constituting the claim within the requisite 90-day period, or a reasonable time thereafter, by virtue of its possession of hospital records relating to the infant petitioner's treatment (see 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 Gonzalez v. City of New York, 60 A.D.3d at 1059-1060, 876 N.Y.S.2d 139).  “Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury” on the claimant (Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  see Contreras v. KBM Realty Corp., 66 A.D.3d 627, 887 N.Y.S.2d 172;  Matter of Ali v. New York City Health & Hosps. Corp., 61 A.D.3d 860, 861, 877 N.Y.S.2d 221;  Rowe v. Nassau Health Care Corp., 57 A.D.3d at 963, 871 N.Y.S.2d 330;  Arias v. New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 A.D.3d at 833, 855 N.Y.S.2d 265).   Finally, the petitioners failed to show that the NYCHHC would not be substantially prejudiced in maintaining a defense on the merits as a result of their delay (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154;  Contreras v. KBM Realty Corp., 66 A.D.3d 627, 887 N.Y.S.2d 172;  Matter of Ali v. New York City Health & Hosps. Corp., 61 A.D.3d at 861, 877 N.Y.S.2d 221;  Matter of Gonzalez v. City of New York, 60 A.D.3d at 1060, 876 N.Y.S.2d 139;  Matter of Rios v. Westchester County Healthcare Corp., 32 A.D.3d 540, 541-542, 821 N.Y.S.2d 102).

Accordingly, the Supreme Court properly denied that branch of the petitioners' motion which was for leave to serve a late notice of claim on behalf of the infant petitioner.

The petitioners' remaining contention is without merit.

Copied to clipboard