| Matter of Kaur v New York City Health & Hosps. Corp. |
| 2011 NY Slip Op 01844 [82 AD3d 891] |
| March 8, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kuldip Kaur, as Mother and Natural Guardian ofParminder Kaur, an Infant, Appellant, v New York City Health and HospitalsCorporation, et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow ofcounsel; Alyse Fiori on the brief), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a latenotice of claim, the petitioner appeals from an order of the Supreme Court, Queens County(Kerrigan, J.), dated September 22, 2009, which denied the petition and dismissed theproceeding.
Ordered that the order is affirmed, with costs.
The petitioner's son was born on November 10, 2000, by emergency caesarian section afterthe petitioner's uterus ruptured during an attempted vaginal birth following a prior caesariansection delivery (hereinafter VBAC). The petitioner alleges that the VBAC was performedwithout her informed consent. The infant allegedly suffered severe brain damage as a result ofprotracted oxygen deprivation.
Almost nine years later, on July 20, 2009, the petitioner moved for leave to serve a latenotice of claim on the respondents, New York City Health and Hospitals Corporation, ElmhurstHospital Center, and Elmhurst Hospital Center's Community Medical Center. The petitioner didnot assert that the respondents committed malpractice in their performance of the VBAC or thesubsequent caesarian section; rather, she contended that the malpractice stemmed from therespondents' failure to obtain her informed consent to attempt a VBAC. The Supreme Courtdenied the motion for leave to serve a late notice of claim and dismissed the proceeding, findingthat the petitioner failed to demonstrate a reasonable excuse for the lengthy delay in commencingthe proceeding or to demonstrate that the respondents had actual notice of the essential facts ofthe claim within 90 days after the claim arose or a reasonable time thereafter. The petitionerappeals. We affirm.
In exercising its discretion in determining whether or not to grant leave to serve a late noticeof claim, the court must consider various factors, including whether (1) the claimant is an infant,(2) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice ofclaim, (3) the public corporation acquired actual knowledge of the facts constituting the claimwithin 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantiallyprejudice the public corporation in defending on the merits (see General Municipal Law§ 50-e [5]; Argueta v New YorkCity Health & Hosps. Corp. [Coney Is. Hosp.], 74 AD3d 713, 713 [2010]). Actualknowledge of the essential facts is an important factor in determining whether to grant anextension, and should be accorded great weight (see Matter of Felice v Eastport/South Manor Cent. School Dist., 50AD3d 138 [2008]; see also Argueta v New York [*2]CityHealth & Hosps. Corp. [Coney Is. Hosp.], 74 AD3d at 713; Matter of Gonzalez v City of NewYork, 60 AD3d 1058, 1059 [2009]; Beretey v New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.],56 AD3d 591, 593 [2008]). However, the presence or absence of any one factor is notdeterminative, and the failure to set forth a reasonable excuse is not, by itself, fatal to theapplication (see Velazquez v City ofN.Y. Health & Hosps. Corp. [Jacobi Med. Ctr.], 69 AD3d 441, 442 [2010]).
The petitioner failed to offer a reasonable excuse for her failure to serve a timely notice ofclaim on the respondents (see Matter ofKing v New York City Health & Hosps. Corp., 42 AD3d 499, 500 [2007]; Matter of Rios v Westchester CountyHealthcare Corp., 32 AD3d 540, 541 [2006]; Matter of Dumancela v New York City Health & Hosps. Corp., 32AD3d 515, 515-516 [2006]).
Moreover, contrary to the petitioner's contention, the respondents did not acquire actualknowledge of the essential facts constituting her claim within the requisite 90-day period, or areasonable time thereafter, by virtue of their possession of hospital records relating to the infant'sdelivery and follow-up care (seeWilliams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]). Although the hospitalrecords clearly indicated that the infant sustained injuries to his brain as a result of the petitioner'sruptured uterus, the records did not evince that the medical staff failed to obtain the petitioner'sinformed consent for a VBAC, which is the only claim asserted by the petitioner.
Finally, even if the hospital personnel involved in the petitioner's care were available totestify, the respondents would nonetheless be prejudiced if they were forced to investigate thepetitioner's allegations nine years later (see Seymour v New York City Health & Hosps. Corp. [Kings County Hosp.Ctr.], 21 AD3d 1025, 1027 [2005]). Rivera, J.P., Balkin, Leventhal and Hall, JJ.,concur.