| Wade v New York City Health & Hosps. Corp. |
| 2011 NY Slip Op 05488 [85 AD3d 1016] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Sharita Wade et al., Appellants, v New York City Healthand Hospitals Corporation et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow andElizabeth S. Natrella of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal from an order ofthe Supreme Court, Queens County (Elliot, J.), dated August 24, 2009, which denied their crossmotion for leave to serve a late notice of claim.
Ordered that the order is affirmed, with costs.
The infant plaintiff was born on October 16, 1991, in a hospital operated by the defendantNew York City Health and Hospitals Corporation (hereinafter NYCHHC). In 1996, the mother,on behalf of the infant plaintiff and individually, commenced an action against NYCHHC torecover damages for, inter alia, injuries the infant plaintiff allegedly sustained as a result ofalleged medical malpractice committed by NYCHHC's employees. Subsequently, NYCHHCmoved to dismiss the complaint. The Supreme Court granted NYCHHC's motion to dismiss thecomplaint for failure to serve a timely notice of claim, and this Court affirmed the order grantingthe motion (see Wade v New York CityHealth & Hosps. Corp., 16 AD3d 677 [2005]).
In 2006 the infant plaintiff, by her mother, and the mother individually, commenced theinstant action against NYCHHC and the defendant doctors, asserting three causes of action. Thedefendants moved to dismiss the complaint, and the Supreme Court granted the motion. Theplaintiffs appealed from the order granting the motion, and this Court modified the order. Wedetermined that the second cause of action sounding in medical malpractice and the third causeof action, a derivative cause of action asserted by the mother, were properly dismissed astime-barred (see Wade v New York CityHealth & Hosps. Corp., 59 AD3d 528, 529-531 [2009]). We further determined that somuch of the first cause of action as alleged negligence based on inadequate supervision andtraining of NYCHHC's obstetrical personnel was timely asserted under the circumstances(id.). This Court remitted the matter to the Supreme Court, Queens County, for adetermination of the plaintiffs' cross motion for leave to serve a late notice of claim, which theSupreme Court had denied as academic (id.). Upon remittal, the Supreme Court deniedthe plaintiffs' cross motion for leave to serve a late notice of claim. We affirm.[*2]
General Municipal Law § 50-e (1) requires that, asa condition precedent to an action against a public corporation, a notice of claim must be servedwithin 90 days after the claim arises. The Legislature, however, gave courts discretion to extendthe time and devised criteria for determining whether to grant extensions (see Williams v Nassau County Med.Ctr., 6 NY3d 531, 535 [2006]).
"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])" (Matter of Kaur vNew York City Health & Hosps. Corp., 82 AD3d 891, 891-892 [2011]). However, "thepresence or absence of any one factor is not determinative" (id. at 892).
The plaintiffs did not allege a causative nexus between the infancy of the infant plaintiff andthe delay, which makes the delay "less excusable" (Williams v Nassau County Med. Ctr.,6 NY3d at 538). In addition, the plaintiffs failed to set forth a reasonable excuse for the delay(see Matter of Kaur v New York City Health & Hosps. Corp., 82 AD3d at 892).
"Actual knowledge of the essential facts is an important factor in determining whether togrant an extension, and should be accorded great weight" (id.). "[W]hat satisfies thestatute is not knowledge of the wrong, but notice of the claim. The municipality must have noticeor knowledge of the specific claim and not general knowledge that a wrong has been committed"(Matter of Cotten v County of Nassau, 307 AD2d 965, 967 [2003] [internal quotationmarks omitted]). Contrary to the plaintiffs' contention, the defendants did not have actual noticeof the plaintiffs' cause of action alleging negligence based on inadequate supervision and trainingof NYCHHC's obstetrical personnel (see Matter of Kaur v New York City Health & Hosps.Corp., 82 AD3d at 892; Seymour vNew York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 21 AD3d 1025, 1027[2005]).
In determining prejudice to the defendants, although the length of the delay is not alonedispositive, it is influential (see Williams v Nassau County Med. Ctr., 6 NY3d at 538[10-year delay]). "Like the length of the delay in service, proof that the defendant had actualknowledge is an important factor in determining whether the defendant is substantiallyprejudiced by such a delay" (id. at 539). The plaintiffs failed to establish that thedefendants would not be prejudiced in having to defend on the merits (cf. Malcolm v City of New York, 2AD3d 696 [2003]; see Medley v Cichon, 305 AD2d 643 [2003]).
Accordingly, the Supreme Court properly denied the plaintiffs' cross motion for leave toserve a late notice of claim. Rivera, J.P., Eng, Roman and Miller, JJ., concur.