| Argueta v New York City Health & Hosps. Corp. (Coney Is.Hosp.) |
| 2010 NY Slip Op 04721 [74 AD3d 713] |
| June 1, 2010 |
| Appellate Division, Second Department |
| Sophie Argueta, an Infant, by her Mother and Natural Guardian,Isela Argueta, Appellant, et al., Plaintiff, v New York City Health & HospitalsCorporation (Coney Island Hospital), Respondent. |
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In an action to recover damages for medical malpractice, etc., the infant plaintiff, SophieArgueta, appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), datedJanuary 9, 2009, which denied her motion to deem her late notice of claim timely served nuncpro tunc, or, in the alternative, for leave to serve a late notice of claim.
Ordered that the order is affirmed, 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 claimant 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]; Matter of Barnes v New York City Health& Hosps. Corp., 69 AD3d 934 [2010]; Contreras v KBM Realty Corp., 66 AD3d 627, 629 [2009]; Matter of Gonzalez v City of NewYork, 60 AD3d 1058, 1059 [2009]; Rowe v Nassau Health Care Corp., 57 AD3d 961, 962 [2008]).Actual knowledge of the essential facts is an important factor in determining whether to grant anextension, and should be accorded great weight (see Matter of Gonzalez v City of NewYork, 60 AD3d at 1059; Beretey vNew York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 56 AD3d 591, 593[2008]).
Contrary to the infant plaintiff's contention, the defendant New York City Health andHospitals Corporation (Coney Island Hospital) (hereinafter NYCHHC) did not acquire actualknowledge of the facts constituting her claim within the requisite 90-day period, or a reasonabletime thereafter, by virtue of its possession of hospital records relating to her delivery andfollow-up care (see Williams v NassauCounty Med. Ctr., 6 NY3d 531, 537 [2006]; Matter of Gonzalez v City of NewYork, 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 not evince that themedical staff, by its acts or omissions, inflicted any injury" on the claimant (Williams vNassau County Med. Ctr., 6 NY3d at 537; see Contreras v KBM Realty Corp., 66AD3d at 630; Matter of Ali v New York[*2]City Health & Hosps. Corp., 61 AD3d 860, 861[2009]; Rowe v Nassau Health Care Corp., 57 AD3d at 963; Arias v New York City Health & Hosps.Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 833 [2008]).
Furthermore, the infant plaintiff did not move to deem her late notice of claim timely servednunc pro tunc, or, in the alternative, for leave to serve a late notice of claim until more than sixyears after she was last treated at the hospital, and this delay was not a product of her infancy(see Contreras v KBM Realty Corp., 66 AD3d at 629; Matter of Ali v New York CityHealth & Hosps. Corp., 61 AD3d at 861; Rowe v Nassau Health Care Corp., 57AD3d at 962-963). Moreover, the infant plaintiff failed to offer a reasonable excuse for herfailure to serve a timely notice of claim on the NYCHHC (see Contreras v KBM RealtyCorp., 66 AD3d at 629; Rowe v Nassau Health Care Corp., 57 AD3d at 963).
The infant plaintiff also failed to show that the NYCHHC would not be substantiallyprejudiced in maintaining a defense on the merits as a result of the delay (see Williams vNassau County Med. Ctr., 6 NY3d at 539; Matter of Barnes v New York City Health & Hosps. Corp., 69 AD3d934 [2010]; Contreras v KBM Realty Corp., 66 AD3d at 630; Matter of Ali vNew York City Health & Hosps. Corp., 61 AD3d at 861; Matter of Gonzalez v City ofNew York, 60 AD3d at 1060; Matter of Rios v Westchester County Healthcare Corp., 32 AD3d540, 541-542 [2006]). Accordingly, the Supreme Court providently exercised its discretionin denying the infant plaintiff's motion. Mastro, J.P., Covello, Eng and Belen, JJ., concur.