| Contreras v KBM Realty Corp. |
| 2009 NY Slip Op 07220 [66 AD3d 627] |
| October 6, 2009 |
| Appellate Division, Second Department |
| Vanessa Contreras, Appellant, v KBM Realty Corp. et al.,Defendants, and New York City Health and Hospitals Corporation (Woodhull Medical andMental Health Center), Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and ScottShorr of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appealsfrom an order of the Supreme Court, Kings County (Levine, J.), dated October 12, 2007, whichdenied her motion to deem her late notice of claim timely served nunc pro tunc, or for leave toserve a late notice of claim, and granted the cross motion of the defendant New York City Healthand Hospitals Corporation (Woodhull Medical and Mental Health Center) to dismiss thecomplaint insofar as asserted against it.
Ordered that the order is affirmed, with costs.
The plaintiff was born at Woodhull Medical and Mental Health Center (hereinafterWoodhull) on June 7, 1995 and received pediatric care at Woodhull during her early childhood.On March 21, 1997, and again on November 3, 1997, the plaintiff was diagnosed at Woodhullwith elevated levels of lead in her blood. On or about September 20, 2004, without obtainingleave of the court, the plaintiff served a late notice of claim on the defendant New York CityHealth and Hospitals Corporation (Woodhull Medical and Mental Health Center) (hereinafterNYCHHC) alleging, inter alia, that Woodhull's medical staff had committed malpractice byfailing to give her mother anticipatory guidance to prevent lead poisoning. More than two yearslater, on March 19, 2007, the plaintiff moved to deem her late notice of claim timely served nuncpro tunc or for leave to serve a late notice of claim. NYCHHC cross-moved to dismiss thecomplaint insofar as asserted against it based on the plaintiff's failure to serve a timely notice ofclaim. The Supreme Court denied the plaintiff's motion, and granted NYCHHC's cross motion.We affirm.
To the extent that the plaintiff's claim is predicated on alleged acts of malpractice thatoccurred prior to March 19, 1997, the Supreme Court properly concluded that her motion wasuntimely. The time period during which an extension of time to serve a late notice of claim maybe granted is coextensive with the statute of limitations governing the claim (see GeneralMunicipal [*2]Law § 50-e [5]). Thus, if the limitationsperiod is tolled under CPLR 208, there is a concomitant tolling of the time period during which alate notice of claim may be served (see Pierson v City of New York, 56 NY2d 950, 954[1982]; Carter v City of New York,38 AD3d 702, 704 [2007]; Matter of Butler v Town of Ramapo, 242 AD2d 570, 571[1997]). In medical malpractice actions which accrue during infancy, the extension is limited to10 years from the time of accrual (see CPLR 208; Matter of Daniel J. v New YorkCity Health & Hosps. Corp., 77 NY2d 630, 634 [1991]). Since the plaintiff's motion wasserved on March 19, 2007 it is timely only as to any claims that accrued on or after March 19,1997 (see Matter of Daniel J. v New York City Health & Hosps. Corp., 77 NY2d 630,634 [1991]; see also General Construction Law § 20; Rivera v BrookdaleHosp. Med. Ctr., 205 AD2d 677, 678 [1994]).
To the extent that the plaintiff's claim is predicated on alleged acts of malpractice thatoccurred on or after March 19, 1997, although the motion was timely as to those claims, abalancing of the relevant factors leads us to conclude that her late notice of claim should not bedeemed timely served as to those claims. In exercising its discretion to grant leave to serve a latenotice of claim, the court must consider various factors, including whether (1) the claimant is aninfant, (2) the movant has demonstrated a reasonable excuse for failing to serve a timely noticeof claim, (3) the public corporation acquired actual knowledge of the facts constituting the claimwithin 90 days of its accrual or a reasonable time thereafter, and (4) the delay wouldsubstantially prejudice the public corporation in defending on the merits (see GeneralMunicipal Law § 50-e [5]; Matterof Gonzalez v City of New York, 60 AD3d 1058, 1059 [2009]; Beretey v New YorkCity Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 56 AD3d 591, 593 [2008];Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 831 [2008]).
Here, while the plaintiff is an infant, "the factor of infancy alone does not compel thegranting of a motion for leave to serve a late notice of claim" (Arias v New York City Health& Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832 [2008]; see Rowe v Nassau Health Care Corp.,57 AD3d 961, 962 [2008]). The plaintiff did not move for leave to deem her late notice ofclaim timely served until more than nine years after she was last diagnosed at Woodhull with anelevated blood lead level, and this delay was not a product of her infancy (see Matter of Ali v New York City Health& Hosps. Corp., 61 AD3d 860, 861 [2009]; Rowe v Nassau Health Care Corp., 57 AD3d 961, 962-963 [2008];Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50AD3d 830, 832 [2008]). Moreover, the plaintiff failed to offer a reasonable excuse for her failureto serve a timely notice of claim on NYCHHC (see Rowe v Nassau Health Care Corp., 57 AD3d 961, 963 [2008];Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50AD3d 830, 832 [2008]; Ibarra v New York City Health & Hosps. Corp. [WoodhullMed. & Mental Health Ctr.], 37 AD3d 660 [2007]).
The plaintiff also failed to show that NYCHHC had actual notice of her claim within therequisite 90-day period, or within a reasonable time thereafter. Although NYCHHC was inpossession of the plaintiff's pediatric medical records, these records show that her blood leadlevel declined during the period when Woodhull's medical staff allegedly failed to provideanticipatory guidance, and do not suggest that the plaintiff suffered an injury attributable to anyacts of medical malpractice (seeWilliams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; Beretey v NewYork City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 56 AD3d 591, 593 [2008])."Merely having or creating hospital records, without more, does not establish actual knowledgeof a potential injury where the records do not evince that the medical staff, by its acts oromissions, inflicted any injury on" the plaintiff (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; see Rowe v Nassau Health Care Corp.,57 AD3d 961, 963 [2008]; Arias v New York City Health & Hosps. Corp.[Kings County Hosp. Ctr.], 50 AD3d 830, 833 [2008]). In addition, the plaintiff failed toestablish that the lengthy delay at issue did not substantially prejudice NYCHHC's ability toinvestigate her claim and maintain a defense on the merits (see Matter of Ali v New York City Health & Hosps. Corp., 61 AD3d860, 861 [2009]; Matter ofGonzalez v City of New York, 60 AD3d 1058, 1060 [2009]; Arias v New York CityHealth & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 833 [2008];Ibarra v New York City Health & Hosps. Corp. [Woodhull Med. & Mental HealthCtr.], 37 AD3d 660, 661 [2007]). Mastro, J.P., Eng, Belen and Hall, JJ., concur.