| Castaneda v Nassau Health Care Corp. |
| 2011 NY Slip Op 08108 [89 AD3d 782] |
| November 9, 2011 |
| Appellate Division, Second Department |
| Jeffrey Enrique Flores Castaneda, an Infant, by His Father andNatural Guardian, Enrique Flores, Respondent, v Nassau Health Care Corporation et al.,Appellants. |
—[*1] Pegalis & Erickson, LLC, Lake Success, N.Y. (Steven E. Pegalis and AnnamarieBondi-Stoddard of counsel), for respondent.
In an action to recover damages for medical malpractice, the defendants appeal from an orderof the Supreme Court, Nassau County (McCarty III, J.), dated March 2, 2010, which granted theplaintiff's motion pursuant to General Municipal Law § 50-e (5) for leave to serve a latenotice of claim upon the defendants and denied the defendants' cross motion to dismiss thecomplaint for failure to timely serve a notice of claim.
Ordered that the order is affirmed, with costs.
The infant plaintiff was born on May 14, 2007, at the defendant Nassau University MedicalCenter. He was delivered preterm with a gestational age of 32 weeks by cesarean section. He wastransferred to the neonatal intensive care unit because, inter alia, he suffered from respiratorydistress. After 25 days, on June 8, 2007, the infant plaintiff was discharged. At the time of hisdischarge, the infant plaintiff suffered from several medical problems, including periventricularleukomalacia. The infant plaintiff's mother was advised by medical personnel that he mayexperience developmental delays. A notice of claim was served on the defendants on January 30,2009, which was beyond the 90-day period set forth in General Municipal Law § 50-e (1)(a).
After the plaintiff commenced this action to recover damages for medical malpractice, [*2]the plaintiff moved pursuant to General Municipal Law §50-e (5) for leave to serve a late notice of claim upon the defendants and the defendantscross-moved to dismiss the complaint for failure to serve a timely notice of claim. The SupremeCourt granted the plaintiff's motion and denied the defendants' cross motion. We affirm.
The Supreme Court providently exercised its discretion in granting the plaintiff's motionpursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim uponthe defendants. In exercising its discretion whether to grant leave to serve a late notice of claim,the court shall consider various factors that include the following: (1) whether the publiccorporation acquired actual knowledge of the essential facts constituting the claim within 90 daysof its accrual or a reasonable time thereafter; (2) whether the delay substantially prejudiced thepublic corporation in maintaining its defense on the merits; (3) whether the claimant was aninfant; and (4) whether the claimant demonstrated a reasonable excuse for the delay (seeGeneral Municipal Law § 50-e [5]; Williams v Nassau County Med. Ctr., 6 NY3d 531, 535 [2006]; Matter of Fouto v City of Yonkers, 83AD3d 708 [2011]).
Here, the plaintiff demonstrated that the defendants had actual knowledge of the essentialfacts constituting the claim, as the medical records provided knowledge of the facts andsuggested injury attributable to malpractice (see Matter of Kumar v Westchester County Health Care Corp., 78AD3d 1054, 1055 [2010]; Matter ofChambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135 [2008]; Matter of Godoy v Nassau Health CareCorp., 49 AD3d 541, 542-543 [2008]; Cifuentes v New York City Health & Hosps. Corp., 43 AD3d 385,386 [2007]). Moreover, there was no evidence that the defendants would be substantiallyprejudiced if leave was granted to serve a late notice of claim. While two of the treatingphysicians no longer work for the defendants, there was no indication that they were unavailable(see Perez v New York City Health &Hosps. Corp., 81 AD3d 448, 449 [2011]; Matter of Kumar v Westchester CountyHealth Care Corp., 78 AD3d at 1055).
In light of the above, the Supreme Court also properly denied the defendants' cross motion todismiss the complaint for failure to timely serve a notice of claim. Florio, J.P., Dickerson,Chambers and Cohen, JJ., concur.