| Rowe v Nassau Health Care Corp. |
| 2008 NY Slip Op 10600 [57 AD3d 961] |
| December 30, 2008 |
| Appellate Division, Second Department |
| Jada Rowe, Appellant, v Nassau Health Care Corporationet al., Respondents. |
—[*1] Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Rosemary Cinquemani ofcounsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from(1) an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 30, 2007, whichdenied her motion pursuant to General Municipal Law § 50-e (5) to deem her notice ofclaim timely served nunc pro tunc, or in the alternative, for leave to serve a late notice of claimand granted the defendants' cross motion to dismiss the complaint for failure to timely serve anotice of claim, and (2) a judgment of the same court dated April 17, 2007, which upon the order,is in favor of the defendants and against the plaintiff, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with entry of judgment in the action (see Matter of Aho, 39 NY2d241, 248 [1976]). The issues raised on appeal from the order are brought up for review and havebeen considered on the appeal from the judgment (see CPLR 5501 [a] [1]).[*2]
In exercising its discretion in determining whether togrant leave to serve a late notice of claim, the court must consider various factors, includingwhether (1) the claimant is an infant, (2) the movant has demonstrated a reasonable excuse forfailing to serve a timely notice of claim, (3) the public corporation acquired actual knowledge ofthe 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]; Williams v Nassau County Med. Ctr.,13 AD3d 363, 364 [2004], affd 6 NY3d 531 [2006]; Matter of Flores v County ofNassau, 8 AD3d 377 [2004]; Matter of Cotten v County of Nassau, 307 AD2d 965[2003]; Matter of Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 9[1995]).
A claimant's infancy will automatically toll the applicable one year and 90-day statute oflimitations for commencing an action against a municipality (see General Municipal Law§ 50-i; Henry v City of New York, 94 NY2d 275 [1999]). "However, the factor ofinfancy alone does not compel the granting of a motion for leave to serve a late notice of claim"(Williams v Nassau County Med. Ctr., 13 AD3d at 364; see Matter of Flores vCounty of Nassau, 8 AD3d at 377; Matter of Cotten v County of Nassau, 307 AD2d965 [2003]). In this case, the plaintiff served a notice of claim upon the defendants approximatelyfour years and four months after the alleged medical malpractice. The delay in serving the noticeof claim and, thereafter, in moving to deem the notice of claim timely served, was not theproduct of the plaintiff's infancy (see Williams v Nassau County Med. Ctr., 13 AD3d at364; Matter of Flores v County of Nassau, 8 AD3d at 378; Matter of Cotten v Countyof Nassau, 307 AD2d 965 [2003]; Matter of Nairne v New York City Health & Hosps.Corp., 303 AD2d 409 [2003]; Berg v Town of Oyster Bay, 300 AD2d 330 [2002];Matter of Brown v County of Westchester, 293 AD2d 748 [2002]; Matter ofMatarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 9 [1995]).
In addition, although General Municipal Law § 50-e (5) does not expressly enumerateas a factor whether the plaintiff has a reasonable excuse for not serving a timely notice of claim,in numerous cases construing the statute, courts have considered such a factor (see e.g. Matterof Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 150 [2008];Bridgeview at Babylon Cove Homeowners Assn., Inc. v Incorporated Vil. of Babylon, 41AD3d 404, 405-406 [2007]; Casias v City of New York, 39 AD3d 681, 683 [2007];Matter of Corvera v Nassau County Health Care Corp., 38 AD3d 775, 777 [2007]). Thus,while the absence of a reasonable excuse does not compel the denial of leave, when, as here, thatabsence is coupled with other factors such as prejudice to the municipality and lack of notice,leave must be denied (see Matter of Cotten v County of Nassau, 307 AD2d 965, 966[2003]; Matter of Morrison v New York City Health & Hosps. Corp., 244 AD2d 487,487-488 [1997]; Matter of D'Anjou v New York City Health & Hosps. Corp., 196 AD2d818, 820 [1993]).
The plaintiff failed to establish that the defendant had actual notice of the claim within therequisite 90-day period, or within a reasonable time thereafter. Although the defendant was inpossession of the pertinent medical records, that alone was insufficient to establish notice of thespecific claim. "The municipality must have notice or knowledge of the specific claim and notgeneral knowledge that a wrong has been committed" (Matter of Sica v Board of Educ. ofCity of N.Y., 226 AD2d 542, 543 [1996]; see Matter of Brown v County of Westchester,293 AD2d 748, 749 [2002]). "Merely having or creating hospital records, without more, doesnot establish actual knowledge of a potential injury where the records do not evince that themedical staff, by its acts or omissions, inflicted any injury on plaintiff" (Williams vNassau County Med. Ctr., 6 NY3d at 537 [emphasis added]).[*3]
Moreover, the plaintiff failed to establish that thedefendant would not be substantially prejudiced in maintaining its defense on the merits (seeWilliams v Nassau County Med. Ctr., 13 AD3d at 364-365; Matter of Flores v County ofNassau, 8 AD3d at 378; Moise v County of Nassau, 234 AD2d 275 [1996];Matter of Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 11 [1995]).Rivera, J.P., Angiolillo, Eng and Belen, JJ., concur.