| Beretey v New York City Health & Hosps. Corp. (Elmhurst Hosp.Ctr.) |
| 2008 NY Slip Op 09014 [56 AD3d 591] |
| November 18, 2008 |
| Appellate Division, Second Department |
| Mammud Rashid Beretey, Appellant, v New York CityHealth & Hospitals Corporation (Elmhurst Hospital Center),Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner and RonaldE. Sternberg of counsel), for respondent.
In an action to recover damages for medical malpractice, the infant plaintiff Mammud RashidBeretey, by his mother and natural guardian Mariama Sheriff, appeals from an order of theSupreme Court, Queens County (Kerrigan, J.), dated February 26, 2007, which denied hismotion, in effect, to deem his late notice of claim timely served nunc pro tunc or, in thealternative, for leave to serve a late notice of claim.
Ordered that the order is affirmed, with costs.
The infant plaintiff Mammud Rashid Beretey (hereinafter the plaintiff) was born at thedefendant New York City Health & Hospitals Corporation (Elmhurst Hospital Center)(hereinafter the Hospital) on November 2, 1996. Prior to his birth, the plaintiff's mother had beengiven Pitocin to induce labor, but the labor did not progress and Hospital personnel ultimatelyperformed a caesarean section. The Hospital's records indicate that, at birth, the plaintiff sufferedfrom perinatal asphyxia and respiratory depression. His birth record indicates that he weighed 9pounds, 3 ounces and his Apgar score was 1 at 1 minute after birth, 5 at 5 minutes after birth, and7 at 10 minutes after birth. The Hospital's records do not indicate any signs of brain damage. For[*2]several days, the plaintiff received treatment for his conditionin the Hospital's infant intensive care unit. On November 9, 1996 seven days after birth, theplaintiff was discharged from the Hospital.
The mother alleges that she learned through a school evaluation conducted "in or about2000," that the plaintiff "would have to be placed in a special school for both physical and mentalissues," and that he "had severe cognitive developmental delays and some motor conditiondifficulties." In January 2006 the plaintiff, by his mother, served a notice of claim seekingdamages for medical malpractice, alleging that the perinatal asphyxia he suffered at birth resultedfrom the negligence of the Hospital and its personnel in delaying to perform a cesarean sectionon his mother. The notice of claim asserted that the perinatal asphyxia caused him to developcognitive delays, mental retardation, severe hyperactivity, and coordination difficulties.
In February 2006 the plaintiff, by his mother, commenced this action against the Hospital. InOctober 2006 he moved, in effect, for leave to deem the notice of claim timely served nunc protunc or, in the alternative, for leave to serve a late notice of claim. The Supreme Court denied themotion. We affirm.
In determining whether to grant leave to serve a late notice of claim, the court must considerseveral factors including whether (1) an infant is involved, (2) there is a reasonable excuse for thedelay, (3) the public corporation acquired actual knowledge of the facts underlying the claimwithin 90 days or a reasonable time thereafter, and (4) the late service would result in substantialprejudice to the public corporation defending on the merits (see General Municipal Law§ 50-e [5]; Arias v New York City Health & Hosps. Corp. [Kings County Hosp.Ctr.], 50 AD3d 830, 832 [2008]). Actual knowledge of the essential facts is an importantfactor in determining whether to grant an extension and "should be accorded great weight"(Matter of Brownstein v Incorporated Vil. of Hempstead, 52 AD3d 507, 509 [2008];see also Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148[2008]).
Here, on the issue of actual knowledge to be gleaned from the Hospital's records, the plaintiffproffers expert affidavits which fail to objectively link the alleged medical malpractice at thetime of his birth with the specific cognitive developmental delays and motor coordinationdifficulties diagnosed years later. As noted by the Supreme Court, there is no indication in theHospital's records that the plaintiff, either at the time of his discharge or upon follow-up visits,showed any signs of brain injury or other impairment (see Matter of King v New York CityHealth & Hosps. Corp., 42 AD3d 499, 500-501 [2007]; Matter of Rios v WestchesterCounty Healthcare Corp., 32 AD3d 540, 541-542 [2006]; Seymour v New York CityHealth & Hosps. Corp. [Kings County Hosp. Ctr.], 21 AD3d 1025, 1026 [2005]; Moise vCounty of Nassau, 234 AD2d 275, 276 [1996]). Accordingly, the entries in the Hospital'srecords at the time of the plaintiff's birth do not equate with knowledge of facts underlying hisclaim (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; Matter ofKing v New York City Health & Hosps. Corp., 42 AD3d at 501).
The plaintiff also failed to offer an adequate excuse for the more than nine-year delaybetween his birth on November 2, 1996 and the service of the notice of claim in January 2006.The mother first learned in 2000 that the plaintiff had cognitive developmental delays and motorcoordination difficulties, yet the first time she consulted with attorneys to investigate a potentialclaim was in 2005, five years later. This delay in consulting with counsel cannot be attributed tothe plaintiff's infancy (see Matter of King v New York City Health & Hosps. Corp., 42AD3d at 500; Matter of Flores v County of Nassau, 8 AD3d 377, 378 [2004]; Matterof Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 9-10 [1995]) and is notreasonable (see Matter of Flores v County [*3]of Nassau,8 AD3d at 378).
Further, the plaintiff failed to establish that the Hospital would not be substantiallyprejudiced in maintaining its defense on the merits as a result of the lengthy and unexcused delayin seeking leave to serve a late notice of claim (see Matter of King v New York City Health &Hosps. Corp., 42 AD3d at 501; Matter of Flores v County of Nassau, 8 AD3d at378). Accordingly, the Supreme Court providently exercised its discretion in denying theplaintiff's motion.
The plaintiff's remaining contentions are without merit. Fisher, J.P., Miller, Dillon and Eng,JJ., concur.