| Contreras v 357 Dean St. Corp. |
| 2010 NY Slip Op 07133 [77 AD3d 604] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Heriberto Contreras and Another, Infants, by Their Mother and NaturalGuardian, Candida Contreras, Also Known as Theodora Contreras, Respondents, v 357Dean Street Corp., Defendant, and New York City Health and Hospitals Corporation (WyckoffGardens Houses Child Health Clinic), Appellant. |
—[*1] Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S.R.Pagano, Deborah P. Henkin, Frank J. Arietta and John J. Leen of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the defendant New York CityHealth and Hospitals Corporation (Wyckoff Gardens Houses Child Health Clinic) appeals from somuch of an order of the Supreme Court, Kings County (Ambrosio, J.), dated December 4, 2008, asgranted those branches of the plaintiffs' motion which were to deem their late notice of claim on behalfof Anahy Contreras timely served nunc pro tunc, and for leave to serve a late notice of claim on behalfof Heriberto Contreras, and denied its cross motion to dismiss the complaint insofar as asserted againstit.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and in theexercise of discretion, with costs, those branches of the plaintiffs' motion which were to deem the latenotice of claim on behalf of Anahy Contreras timely served nunc pro tunc, and for leave to serve a latenotice of claim on behalf of Heriberto Contreras are denied, and the cross motion of the defendantNew York City Health and Hospitals Corporation (Wyckoff Gardens Houses Child Health Clinic) todismiss the complaint insofar as asserted against it is granted.
Contrary to the Supreme Court's conclusion, the continuous treatment doctrine may not be invokedto toll the 90-day period for serving a notice of claim under the circumstances of this case (seePlummer v New York City Health & Hosps. Corp., 98 NY2d 263, 268 [2002]; Ganess vCity of New York, 85 NY2d 733, 736 [1995]; Little v Nassau Health Care Corp., 15 AD3d 359, 360 [2005]).
Moreover, the Supreme Court improvidently exercised its discretion in granting leave to serve alate notice of claim for the alleged medical malpractice and in deeming a late notice of claim timelyserved. While the plaintiffs are infants, "the factor of infancy alone does not compel the granting of amotion 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]). Furthermore, the plaintiffs failed to satisfactorily explain their lengthydelay in seeking leave to serve a late notice of claim (see Matter of Barnes v New York City Health & Hosps. Corp., 69 AD3d934, 934-935 [2010]; Contreras vKBM Realty Corp., 66 AD3d 627, 629 [2009]).[*2]
The plaintiffs also failed to show that the appellant had actualnotice of the essential facts underlying their claims within the requisite 90-day period, or within areasonable time thereafter. "Merely having or creating hospital records, without more, does notestablish actual knowledge of a potential injury where the records do not evince that the medical staff,by its acts or omissions, inflicted any injury on [the plaintiffs]" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; seeContreras v KBM Realty Corp., 66 AD3d at 629; Matter of Ali v New York City Health & Hosps. Corp., 61 AD3d 860,860 [2009]; Rowe v Nassau Health CareCorp., 57 AD3d 961, 963-964 [2008]; Arias v New York City Health & Hosps. Corp.[Kings County Hosp. Ctr.], 50 AD3d at 832). In addition, the plaintiffs failed to establish that thelengthy delay at issue did not substantially prejudice the appellant's ability to investigate the claims andmaintain a defense on the merits (see Contreras v KBM Realty Corp., 66 AD3d at 629; Matter of Gonzalez v City of New York, 60AD3d 1058, 1060 [2009]).
Accordingly, the balancing of factors under General Municipal Law § 50-e (5) militatesagainst permitting service of late notices of claims or deeming late notices timely served nunc pro tunc inthis case, and the Supreme Court should have denied the plaintiffs' request for this relief, and grantedthe appellant's cross motion to dismiss the complaint insofar as asserted against it (see Williams v Nassau County Med. Ctr.,13 AD3d 363 [2004], affd 6 NY3d 531 [2006]; Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.],50 AD3d 830, 832 [2008]).
In light of the foregoing, the parties' remaining contentions have been rendered academic. Skelos,J.P., Angiolillo, Hall and Lott, JJ., concur.