Matter of Ali v New York City Health & Hosps. Corp.

2009 NY Slip Op 03166 [61 AD3d 860]

April 21, 2009

Appellate Division, Second Department

As corrected through Wednesday, June 10, 2009

In the Matter of Humza Ali, Respondent, v New York CityHealth & Hospitals Corporation, Appellant.

—[*1]Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath andCheryl Payer of counsel), for appellant.

Gair, Gair, Conason, Steigman & Mackauf, New York, N.Y. (Rhonda E. Kay of counsel),for respondent.

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the respondent New York City Health & Hospitals Corporation appeals from anorder of the Supreme Court, Kings County (Steinhardt, J.), dated May 8, 2008, which granted thepetition.

Ordered that the order is reversed, on the law, with costs, and the petition is denied.

The Supreme Court improvidently exercised its discretion in granting the petition for leaveto serve a late notice of claim for the alleged medical malpractice. The balancing of factors underGeneral Municipal Law § 50-e (5) predominates against permitting service of a late noticeof claim in this case. The mere fact that the New York City Health & Hospitals Corporation(hereinafter the hospital) was in possession of the infant's medical records did not, without more,establish that the hospital had actual knowledge of the essential facts constituting the claim (see Williams v Nassau County Med. Ctr.,6 NY3d 531, 537 [2006]; Ariasv New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832[2008]). The petitioner failed to satisfactorily explain a nine-year delay in seeking to serve a latenotice of claim (see Beretey v NewYork City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 56 AD3d 591, 594 [2008]).The delay is not directly attributable to the infant petitioner's infancy (see Matter of Doe v Goshen Cent. SchoolDist., 13 AD3d 526 [2004]; Matter of Lennon v Roosevelt Union Free School Dist., 6 AD3d713 [2004]). Moreover, the petitioner failed to meet his burden of establishing that thehospital has not been prejudiced in maintaining its defenses on the merits (see Casias v City of New York, 39AD3d 681 [2007]; Matter of Floresv County of Nassau, 8 AD3d 377, 378 [2004]) given the lengthy and unexcused delayin seeking to serve the late notice of claim (see Beretey v New York City Health & Hosps.Corp. [Elmhurst Hosp. Ctr.], 56 AD3d at 594; Matter of King v New York City Health & Hosps. Corp., 42 AD3d499, 501 [2007]). Rivera, J.P., Dillon, Covello and Eng, JJ., concur.