| Matter of Kumar v Westchester County Health Care Corp. |
| 2010 NY Slip Op 08734 [78 AD3d 1054] |
| November 23, 2010 |
| Appellate Division, Second Department |
| In the Matter of Ajay Kumar, Individually and as Parent andNatural Guardian of Rajan Kumar, an Infant, Respondent, v Westchester County HealthCare Corporation et al., Appellants. |
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In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim, Westchester County Health Care Corporation, Westchester Medical Center, andWMC-CS, Inc., appeal from (1) an order of the Supreme Court, Westchester County (Smith, J.),dated February 18, 2009, which granted the petition, and (2) an order of the same court datedSeptember 30, 2009, which denied their motion for leave to renew their opposition to thepetition.
Ordered that the orders are affirmed, with one bill of costs to the petitioner.
The Supreme Court providently exercised its discretion in granting the petition for leave toserve a late notice of claim upon Westchester County Health Care Corporation, WestchesterMedical Center, and WMC-CS, Inc. (hereinafter collectively WCHCC). While the SupremeCourt correctly determined that the petitioner did not have a reasonable excuse for failing toserve a notice of claim within 90 days of the accrual of the claim, the absence of a reasonableexcuse is not necessarily fatal where the municipal corporation had actual notice of the essentialfacts constituting the claim, and there is no evidence that WCHCC was prejudiced in its ability tomaintain a defense (see Matter of Chambers v Nassau County Health Care Corp., 50AD3d 1134 [2008]; Matter of Feroz v City of New York, 8 AD3d 275 [2004]; Matterof Nieves v Girimonte, 309 AD2d 753 [2003]).
Here, the petitioner demonstrated that WCHCC had actual knowledge of the essential factsconstituting the claim, as it had knowledge of the facts underlying the legal theory on which itsliability is predicated. WCHCC did not need to have specific notice of the theory itself (seeMatter of Whittaker v New York City Bd. of Educ., 71 AD3d 776 [2010]; Matter ofLeeds v Port Washington Union Free School Dist., 55 AD3d 734 [2008]; Matter ofFelice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 148 [2008]). The medicalrecords generated by WCHCC suggested injury attributable to malpractice (see Williams vNassau County Med. Ctr., 6 NY3d 531, 537 [2006]; Cifuentes v New York City Health& Hosps. Corp., 43 AD3d 385 [2007]), as an operative report dated July 19, 2007, indicatesthat an [*2]incision was made to the trachea of the petitioner'sinfant son for the insertion of a tracheotomy tube, and an operative report dated September 19,2007, indicates, for the first time, fractures to the infant's anterior tracheal rings. In opposition tothe petition, WCHCC failed to submit any evidence to suggest that fractured tracheal rings couldbe attributed to a cause other than malpractice.
Furthermore, there was no evidence that WCHCC would be prejudiced in the defense of thisaction if leave were granted to serve a late notice of claim. Although three of the doctorsinvolved in the infant's care have now left the employ of WCHCC, there is no indication in therecord that they are actually unavailable (see Cifuentes v New York City Health & Hosps.Corp., 43 AD3d 385 [2007]; Greene v New York City Health & Hosps. Corp., 35AD3d 206 [2006]; Matter of McMillan v City of New York, 279 AD2d 280 [2001]).Moreover, Drs. Roger Salisbury and Craig Zalvan, who actually performed the procedures atissue, are still employed by WCHCC.
The Supreme Court also did not improvidently exercise its discretion in denying WCHCC'smotion for leave to renew. The facts contained in the expert affirmation submitted by WCHCC inconnection with its motion for leave to renew were known to it at the time of the original motion,as all of those facts were included in its medical records. Accordingly, WCHCC failed to offer areasonable justification for failing to present the expert affirmation on the original motion(see CPLR 2221 [e]; Smith v State of New York, 71 AD3d 866, 868 [2010];Caraballo v Kim, 63 AD3d 976 [2009]; Elliot v Long Is. Home, Ltd., 12 AD3d481 [2004]). Furthermore, nothing contained in the expert affirmation would change the priordetermination (see New York Tel. Co. v Supervisor of Town of N. Hempstead, 76 AD3d517 [2010]; Siculan v Koukos, 74 AD3d 946 [2010]; Reshevsky v United WaterN.Y., Inc., 46 AD3d 532 [2007]). Dillon, J.P., Florio, Angiolillo and Dickerson, JJ., concur.