| Velazquez v City of N.Y. Health & Hosps. Corp. (Jacobi Med.Ctr.) |
| 2010 NY Slip Op 00195 [69 AD3d 441] |
| January 12, 2010 |
| Appellate Division, First Department |
| Zachary Velazquez, an Infant, by His Mother and NaturalGuardian, Evelyn Segarra, et al., Respondents, v City of New York Health andHospitals Corporation (Jacobi Medical Center), Appellant. |
—[*1] Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for respondents.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered March 26, 2008,which granted plaintiffs' motion for an order deeming their notice of claim timely served,unanimously reversed, on the law, and the facts, and in the exercise of discretion, without costs,and the motion denied.
The infant plaintiff was born at Jacobi Medical Center in March 1998, weighing only onepound, nine ounces. He remained in the neonatal intensive care unit until his discharge on July 6,1998. By the age of four, he was diagnosed with spastic cerebral palsy and asthma. A notice ofclaim dated October 11, 2006 notified defendant of plaintiffs' claims for negligence, medicalmalpractice and failure to obtain informed consent in connection with the infant's neonatal careand alleged that injury was sustained as the result of birth trauma. The instant motion datedAugust 30, 2007 seeks an order deeming the notice of claim served to be timely or, in thealternative, granting leave to serve a late notice of claim.
In deciding whether a notice of claim should be deemed timely served under GeneralMunicipal Law § 50-e (5), the key factors considered are "whether the movantdemonstrated a reasonable excuse for the failure to serve the notice of claim within the statutorytime frame, whether the municipality acquired actual notice of the essential facts of the claimwithin 90 days after the claim arose or a reasonable time thereafter, and whether the delay wouldsubstantially prejudice the municipality in its defense. Moreover, the presence or absence of anyone factor is not determinative" (Matter of Dubowy v City of New York, 305 AD2d 320,321 [2003] [citations omitted]). The failure to set forth a reasonable excuse is not, by itself, fatalto the application (see Matter of Ansong v City of New York, 308 AD2d 333, 334[2003]).
While analysis of the medical record will be required to assess the propriety of the treatmentrendered by defendant, plaintiffs have failed to demonstrate that the record alone suffices to putdefendant on notice of the alleged malpractice (cf. Rechenberger v Nassau County Med.Ctr., 112 AD2d 150, 153 [1985]). That the infant [*2]experienced complications due to premature birth does not serve toalert defendant that, years later, he would develop cerebral palsy and other conditions nowalleged to be the result of negligence in his perinatal care and treatment. "Merely having orcreating hospital records, without more, does not establish actual knowledge of a potential injurywhere the records do not evince that the medical staff, by its acts or omissions, inflicted anyinjury on plaintiff during the birth process" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; see also Matter of Nieves v New YorkHealth & Hosps. Corp., 34 AD3d 336, 338 [2006]). Thus, the failure to serve a timelynotice of claim has deprived defendant of the opportunity to conduct a prompt investigation ofthe merits of the allegations against it that the notice provision of General Municipal Law§ 50-e was designed to afford (see Adkins v City of New York, 43 NY2d 346, 350[1977]).
Plaintiffs state no excuse for the 8½-year delay in serving a notice of claim or for theadditional one-year delay in seeking leave to file late notice (see Rechenberger, 112AD2d at 152), arguing instead that defendant has not sustained prejudice as a consequence.However, this is not a case in which the plaintiff is unavailable due to death or incapacity so thatthe propriety of treatment will be determined solely on the basis of the medical record and, thus,"the knowledge of the claim possessed by the public corporation is at least coextensive with, ifnot superior to, that of the representative of the injured party and is contemporaneous with thealleged acts of malpractice" (Matter of Banegas-Nobles v New York City Health & Hosps.Corp., 184 AD2d 379, 380 [1992]). Nor is this a case in which delay in serving notice resultsfrom difficulty in discovering the alleged act of malpractice (see Myette v New York CityHous. Auth., 204 AD2d 54 [1994]); to the contrary, plaintiffs contend that the allegedmalpractice is evident from the difficulties attendant upon the birth.
In the absence of evidence that defendant should have been alerted to malpractice giving riseto the claims asserted in the complaint (see Matter of Ruiz v New York City Health & Hosps.Corp., 165 AD2d 75, 81 [1991]) and the absence of any excuse for the considerable delay inbringing the motion for leave to serve a late notice of claim (see Gaudio v City of NewYork, 235 AD2d 228 [1997]), Supreme Court improvidently exercised its discretion ingranting plaintiffs' application. Concur—Tom, J.P., Friedman, Nardelli, Buckley andRichter, JJ.