| Matter of Barnes v New York City Health & Hosps. Corp. |
| 2010 NY Slip Op 00676 [69 AD3d 934] |
| January 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Gabrielle Barnes et al., Appellants, v NewYork City Health and Hospitals Corporation, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz andDeborah A. Brenner of counsel), for respondent.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioners appeal, as limited by their brief, from so much of an order of theSupreme Court, Queens County (Flug, J.), dated December 5, 2008, as denied that branch oftheir motion which was for leave to serve a late notice of claim on behalf of the infant petitioner.
Ordered that the order is affirmed insofar as appealed from, with costs.
In exercising its discretion to grant leave to serve a late notice of claim, the court mustconsider various factors, including whether (1) the claimant is an infant, (2) the movant hasdemonstrated a reasonable excuse for failing to serve a timely notice of claim, (3) the publiccorporation acquired actual knowledge of the facts constituting the claim within 90 days of itsaccrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the publiccorporation in defending on the merits (see General Municipal Law § 50-e [5]; Contreras v KBM Realty Corp., 66AD3d 627 [2009]; Matter ofGonzalez v City of New York, 60 AD3d 1058, 1059 [2009]; Rowe v Nassau Health Care Corp., 57AD3d 961, 962 [2008]).
Here, while the petitioners sought leave to serve a late notice of claim on behalf of an infant,this factor alone does not compel granting the application (see Contreras v KBM Realty Corp., 66 AD3d 627 [2009]; Arias v New York City Health & Hosps.Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832 [2008]; Rowe v Nassau CountyHealth Care Corp., 57 AD3d at 962; Matter of Flores v County of Nassau, 8 AD3d 377, 378 [2004]).Furthermore, the petitioners failed to satisfactorily explain their lengthy delay in seeking leave toserve a late notice of claim on behalf of the infant petitioner (see Webb v New York City Health & Hosps. Corp., 50 AD3d 265[2008]; Matter of del Carmen vBrentwood Union Free School Dist., 7 AD3d 620, 621 [2004]; see also Seymour v New York City Health& Hosps. Corp. [Kings County Hosp. Ctr.], 21 AD3d 1025, 1026-1027 [2005]).
The petitioners also failed to establish that the New York City Health and HospitalsCorporation (hereinafter the NYCHHC) acquired actual knowledge of the facts constituting theclaim within the requisite 90-day period, or a reasonable time thereafter, by virtue of itspossession of hospital records relating to the infant petitioner's treatment (see Williams v Nassau County Med. [*2]Ctr., 6 NY3d 531, 537 [2006]; Matter of Gonzalez vCity of New York, 60 AD3d at 1059-1060). "Merely having or creating hospital records,without more, does not establish actual knowledge of a potential injury where the records do notevince that the medical staff, by its acts or omissions, inflicted any injury" on the claimant(Williams v Nassau County Med. Ctr., 6 NY3d at 537; see Contreras v KBM Realty Corp., 66AD3d 627 [2009]; Matter of Ali vNew York City Health & Hosps. Corp., 61 AD3d 860, 861 [2009]; Rowe v NassauCounty Health Care Corp., 57 AD3d at 963; Arias v New York City Health & Hosps.Corp. [Kings County Hosp. Ctr.], 50 AD3d at 833). Finally, the petitioners failed to showthat the NYCHHC would not be substantially prejudiced in maintaining a defense on the meritsas a result of their delay (see Williams v Nassau County Med. Ctr., 6 NY3d at 539; Contreras v KBM Realty Corp., 66AD3d 627 [2009]; Matter of Ali v New York City Health & Hosps. Corp., 61 AD3dat 861; Matter of Gonzalez v City of New York, 60 AD3d at 1060; Matter of Rios v Westchester CountyHealthcare Corp., 32 AD3d 540, 541-542 [2006]).
Accordingly, the Supreme Court properly denied that branch of the petitioners' motion whichwas for leave to serve a late notice of claim on behalf of the infant petitioner.
The petitioners' remaining contention is without merit. Mastro, J.P., Balkin, Belen andChambers, JJ., concur.