| Matter of Godoy v Nassau Health Care Corp. |
| 2008 NY Slip Op 01952 [49 AD3d 541] |
| March 4, 2008 |
| Appellate Division, Second Department |
| In the Matter of Sebastian Godoy, Respondent, v NassauHealth Care Corporation, Appellant. |
—[*1] Duffy, Duffy & Burdo, Uniondale, N.Y. (James N. LiCalzi of counsel), forrespondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the Nassau Health Care Corporation appeals, as limited by its brief, from somuch of an order of the Supreme Court, Nassau County (Adams, J.), entered March 5, 2007, asgranted the petition to the extent of granting the petitioner leave to serve a late notice of claim torecover damages for medical malpractice that occurred on the date of his birth.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court providently exercised its discretion in granting leave to serve a latenotice of claim alleging medical malpractice based upon evidence that the appellant acquiredactual knowledge of the essential facts constituting the medical malpractice that allegedlyoccurred on the date of the petitioner's birth. Where the alleged malpractice is apparent from anindependent review of the medical records, those records constitute "actual knowledge of thefacts constituting the claim" (Cifuentesv New York City Health & Hosps. Corp., 43 AD3d 385, 386 [2007]). In support of theapplication, the petitioner submitted medical records (see Matter of Rivera-Guallpa v County of Nassau, 40 AD3d 1001[2007]; Matter of Corvera v NassauCounty Health Care Corp., 38 AD3d 775, 776 [2007]; Matter of Tomlinson v NewYork City Health & Hosps. Corp., 190 AD2d 806 [1993]) and an affirmation of a physicianwho reviewed the records and concluded that there had been a departure from accepted medicalpractice (see Williams v Nassau CountyMed. Ctr., 6 NY3d 531, 537 [2006]; Cifuentes v New York City Health & Hosps. Corp., 43 AD3d 385,386 [2007]; Matter of Rios vWestchester [*2]County Healthcare Corp., 32 AD3d540, 542 [2006]). In the opinion of the petitioner's expert, the medical records indicated,inter alia, that an alleged delay in transferring the petitioner from Nassau University MedicalCenter to Schneider Children's Hospital of Long Island Jewish Medical Center was a departurefrom accepted standards of medical care and that this delay proximately caused or contributed tothe petitioner's injuries.
Considering the overall circumstances present here, including the nature of the injuries andthe mother's natural predisposition to be concerned first with her child's medical condition, the16-month delay in serving a notice of claim was properly excused (see Matter of Gallino vVillage of Shoreham, 222 AD2d 506 [1995]; Matter of Holmes v New York City Hous.Auth., 201 AD2d 650, 651 [1994]; Matter of Brown v New York City Hous. Auth.,194 AD2d 667, 668 [1993]).
Moreover, given that the appellant had actual knowledge of the facts constituting the medicalmalpractice claim and that the attending physician is still employed by the appellant, theappellant will not be substantially prejudiced by the delay (see Cifuentes v New York CityHealth & Hosps. Corp., 43 AD3d at 386; Matter of Corvera v Nassau County Health Care Corp., 38 AD3d775, 777 [2007]; Matter of Kurz v New York City Health & Hosps. Corp., 174AD2d 671 [1991]). Rivera, J.P., Lifson, Ritter and Carni, JJ., concur.