| Bucknor v New York City Health & Hosps. Corp. (Queens Hosp.Ctr.) |
| 2007 NY Slip Op 07809 [44 AD3d 811] |
| October 16, 2007 |
| Appellate Division, Second Department |
| Kahron Bucknor et al., Respondents, v New York CityHealth & Hospitals Corporation (Queens Hospital Center),Appellant. |
—[*1] Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, and MitchellL. Gittin of counsel), for respondents.
In an action to recover damages for medical malpractice, the defendant appeals, as limited byits brief, from so much of an order of the Supreme Court, Queens County (Flug, J.), datedOctober 27, 2005, as granted that branch of the plaintiffs' motion which was for leave to serve alate notice of claim on behalf of the infant plaintiff and denied the defendant's cross motion todismiss the complaint.
Ordered that the order is reversed insofar as appealed from, on the facts and in the exercise ofdiscretion, with costs, that branch of plaintiffs' motion which was for leave to serve a late noticeof claim on behalf of the infant plaintiff is denied, and the defendant's cross motion to dismissthe complaint is granted.
The infant plaintiff (hereinafter the child) was born on June 12, 1995 at Queens HospitalCenter (hereinafter the defendant). The child was delivered by emergency Cesarean section,which was preceded by attempts to induce labor lasting several days. Although the child wasborn limp and required that meconium be suctioned, he resuscitated spontaneously, and at oneminute after birth his Apgar score was 7. He was discharged from the defendant five days laterwith no medical problems. At 16 months of age, the child was diagnosed with pervasivedevelopmental disorder or autism. The plaintiffs alleged that the defendant's delay in performinga Cesarean section [*2]resulted in intrapartum birth trauma whichcaused the child later to develop autism or pervasive development disorder. The child's mothercontacted an attorney in May 2001. In September 2004 her attorneys commenced this medicalmalpractice action and served a notice of claim, but did not move for leave to serve a late noticeof claim until nine months later in June 2005.
The Supreme Court improvidently exercised its discretion in granting that branch of theplaintiffs' motion which was for leave to serve a late notice of claim on behalf of the childapproximately 10 years after the alleged malpractice giving rise to his injuries (see Williams v Nassau County Med.Ctr., 6 NY3d 531 [2006]). In exercising its discretion to grant leave to serve a late noticeof claim, the court must consider relevant factors and circumstances, including whether (1) aninfant is involved, (2) there is a reasonable excuse for the delay, (3) the public corporationacquired actual knowledge of the facts constituting the claim within 90 days or a reasonable timethereafter, and (4) the public corporation's defense on the merits would be substantiallyprejudiced by the delay (see General Municipal Law § 50-e [5]; Williams vNassau County Med. Ctr., 6 NY3d at 535; Matter of Dumancela v New York City Health & Hosps. Corp., 32AD3d 515 [2006]; Seymour v NewYork City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 21 AD3d 1025, 1026[2005]; Breeden v Valentino, 19AD3d 527 [2005]; Matter of Floresv County of Nassau, 8 AD3d 377 [2004]).
Infancy alone does not compel the granting of a motion for leave to serve a late notice ofclaim (see Matter of Dumancela v NewYork City Health & Hosps. Corp., 32 AD3d 515 [2006]; Matter of Flores v Countyof Nassau, 8 AD3d at 378). Here, the delay in moving for leave to serve a late notice ofclaim cannot be said to be entirely the product of infancy. The mother's lack of awareness of thepossibility of a lawsuit is not a reasonable excuse for her nearly five-year delay in contacting anattorney (see Seymour v New York City Health & Hosps. Corp. [Kings County Hosp.Ctr.], 21 AD3d at 1026-1027; Matter of Flores v County of Nassau, 8 AD3d at 378;Matter of Cotten v County of Nassau, 307 AD2d 965, 966 [2003]; Matter ofMatarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 9 [1995]). The subsequentfour-year delay in moving for leave to serve a late notice of claim, occasioned by the plaintiffs'attorneys' investigation of the claim, was not "directly attributable to the infancy" (Matter ofMatarrese v New York City Health & Hosps. Corp., 215 AD2d at 9 [internal quotationmarks omitted]; see Matter of Flores v County of Nassau, 8 AD3d at 378).
Furthermore, the plaintiffs failed to demonstrate that the defendant acquired actual notice ofthe claim merely because of the defendant's possession of the medical records (see Williams vNassau County Med. Ctr., 6 NY3d at 537; Matter of Rios v Westchester County Healthcare Corp., 32 AD3d540, 541-542 [2006]; Matter of Dumancela v New York City Health & Hosps.Corp., 32 AD3d at 516; Seymour v New York City Health & Hosps. Corp. [KingsCounty Hosp. Ctr.], 21 AD3d at 1027; Breeden v Valentino, 19 AD3d 527, 528 [2005]). The hospital'srecords could not have put the defendant on notice that the child would develop autism later on.Rather, the "hospital . . . records reveal that the delivery was difficult, but that whenit was over there was scant reason to identify or predict any lasting harm to the child, let alone adevelopmental disorder" (Williams v Nassau County Med. Ctr., 6 NY3d at 537; seeMatter of Rios v Westchester County Healthcare Corp., 32 AD3d at 542; Seymour v NewYork City Health & Hosps. Corp., 32 AD3d at 515; Moise v County of Nassau, 234AD2d 275, 276 [1996]; cf. Matter ofTapia v New York City Health & Hosps. Corp., 27 AD3d 655, 656-657 [2006];Medley v Cichon, 305 AD2d 643, 644 [2003]). A proffered reason for the approximately10-year delay, that no consensus was reached until 2004 that intrapartum birth trauma maycontribute to the development of autism, itself militates against a finding that the defendant hadactual notice of this specific claim 10 years earlier (see Ocasio v New York City Health & Hosps. Corp. [MorrisaniaNeighborhood Family Care Ctr.], 14 AD3d 361, 362 [2005]).[*3]
Finally, the plaintiffs failed to establish that the defendantwould not be substantially prejudiced in maintaining its defense on the merits as a result of thelengthy delay in moving for leave to serve a late notice of claim (see Williams v NassauCounty Med. Ctr., 6 NY3d at 538-539; Seymour v New York City Health & Hosps.Corp. [Kings County Hosp. Ctr.], 21 AD3d at 1027). Crane, J.P., Florio, Lifson andCarni, JJ., concur.