| Matter of Chambers v Nassau County Health Care Corp. |
| 2008 NY Slip Op 04083 [50 AD3d 1134] |
| April 29, 2008 |
| Appellate Division, Second Department |
| In the Matter of Candice Chambers, Respondent, v NassauCounty Health Care Corporation, Appellant. |
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In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a latenotice of claim, Nassau County Health Care Corporation appeals (1) from an order of theSupreme Court, Nassau County (Phelan, J.), entered March 2, 2007, which granted the petition,and (2), as limited by its brief, from so much of an order of the same court entered August 27,2007, as, upon renewal, adhered to the prior determination.
Ordered that the appeal from the order entered March 2, 2007 is dismissed, without costs ordisbursements, as the order was superseded by the order entered August 27, 2007, made uponrenewal; and it is further,
Ordered that the order entered August 27, 2007 is affirmed insofar as appealed from, withoutcosts or disbursements.
On September 15, 2005 the petitioner Candice Chambers reported to the emergency room ata hospital owned and operated by the appellant Nassau County Health Care Corporationcomplaining of swelling in her neck. Her triage assessment sheet indicates that she informed thestaff that she was allergic to shellfish (due to the iodine). A CT scan was ordered. During thescan, the petitioner suffered an allergic reaction that was treated with epinephrine. She thereaftersuffered a cardiac event and was hospitalized until September 21, 2005. This included two daysin the cardiac intensive care unit and one day in the regular intensive care unit. The results ofblood tests on September 16, 2005 were "not conclusive of myocardial infarct but [were]suggestive of myocardial damage and increased risk for cardiac events." In November 2006 thepetitioner commenced this proceeding for leave to serve a late notice of claim. The petitioneralleged that she [*2]suffered an allergic reaction during her CTscan because the contrast medium used for the scan contained iodine, despite her disclosedallergy to the same. Further, she alleged that the appellant administered "contra-indicated,dangerous and excessive dosages of Epinephrine," which caused her to suffer a heart attack. TheSupreme Court granted the petition. We affirm.
In determining whether to permit service of a late notice of claim, the court must consider allrelevant circumstances, including whether (1) the claimant demonstrated a reasonable excuse forthe failure to serve a timely notice of claim, (2) the public corporation acquired actual knowledgeof the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter,and (3) the delay would substantially prejudice the public corporation in defending on the merits(see General Municipal Law § 50-e; Matter of Roland v Nassau County Dept. of Social Servs., 35 AD3d477 [2006]). The presence or absence of any one factor, including the absence of areasonable excuse, is not necessarily fatal (see Jordan v City of New York, 41 AD3d 658 [2007];Abrahamson v Gates at Melville, 278 AD2d 186 [2000]). Further, while the merits of aclaim ordinarily are not considered on a motion for leave to serve a late notice of claim, leaveshould be denied where the proposed claim is patently without merit (see Matter of Catherine G. v County ofEssex, 3 NY3d 175 [2004]; Matter of Besedina v New York City Tr. Auth., 47 AD3d 924[2008]). Here, the petitioner did not offer a reasonable excuse for her failure to serve a timelynotice of claim. However, she demonstrated that the appellant acquired timely, actual knowledgeof the facts constituting the claim and would not be substantially prejudiced by the delay. Thepetitioner's medical records detailed the relevant facts and suggested injury attributable tomalpractice (see Williams v NassauCounty Med. Ctr., 6 NY3d 531 [2006]; Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138[2008]; Cifuentes v New York CityHealth & Hosps. Corp., 43 AD3d 385 [2007]). In opposition, the appellant failed todemonstrate substantial prejudice, or that the petitioner's claim was patently without merit (see Matter of Catherine G. v County ofEssex, 3 NY3d 175 [2004]; Matter of Besedina v New York City Tr. Auth., 47 AD3d 924[2008]). In light of all of the circumstances, the Supreme Court providently exercised itsdiscretion in granting the petitioner leave to serve a late notice of claim (see Jordan v City of New York, 41AD3d 658 [2007]; Abrahamson v Gates at Melville, 278 AD2d 186 [2000]).
The appellant's argument concerning whether the petitioner timely commenced an action onher claim miscalculates the relevant period of limitation and, in any event, concerns mattersdehors the record.
The appellant's remaining contentions are without merit. Mastro, J.P., Ritter, Carni and Eng,JJ., concur.