| Matter of Magana v Westchester County Health Care Corp. |
| 2011 NY Slip Op 08155 [89 AD3d 851] |
| November 9, 2011 |
| Appellate Division, Second Department |
| In the Matter of Kenneth Magana, an Infant, by His Mother andNatural Guardian, Ilsi Salguero, et al., Respondents, v Westchester County Health CareCorporation et al., Appellants. |
—[*1] Barton Barton & Plotkin, LLP, New York, N.Y. (Thomas P. Giuffra and Jeremy A. Hellmanof counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50-e for leave to serve a latenotice of claim, Westchester County Health Care Corporation and Westchester Medical Centerappeal, as limited by their brief, from so much of an order of the Supreme Court, WestchesterCounty (Loehr, J.), entered November 17, 2010, as granted that branch of the petition which wasfor leave to serve a late notice of claim on behalf of the petitioner Kenneth Magana, by hismother and natural guardian, Ilsi Salguero.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and inthe exercise of discretion, with costs, that branch of the petition which was for leave to serve alate notice of claim on behalf of the petitioner Kenneth Magana is denied, and the proceeding isdismissed.
In exercising its discretion to grant leave to serve a late notice of claim, a court must considervarious factors, including whether (1) the claimant has demonstrated a reasonable excuse forfailing to serve a timely notice of claim, (2) the claimant was an infant, or mentally or physicallyincapacitated, (3) the public corporation acquired actual knowledge of the facts constituting theclaim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay wouldsubstantially [*2]prejudice the public corporation in defending onthe merits (see General Municipal Law § 50-e [5]; Matter of Iacone v Town ofHempstead, 82 AD3d 888 [2011]; Matter of Barnes v New York City Health & Hosps. Corp., 69 AD3d934 [2010]; Matter of Chambers vNassau County Health Care Corp., 50 AD3d 1134, 1135 [2008]).
While the petitioner Kenneth Magana (hereinafter the petitioner) is an infant, the factor ofinfancy alone does not compel the granting of a petition for leave to serve a late notice of claim(see Contreras v KBM Realty Corp.,66 AD3d 627, 629 [2009]; Matterof Ali v New York City Health & Hosps. Corp., 61 AD3d 860, 861 [2009]; Rowe v Nassau Health Care Corp., 57AD3d 961, 962-963 [2008]). The delays in serving the notice of claim and, thereafter, incommencing this proceeding pursuant to General Municipal Law § 50-e for leave to servea late notice of claim, were not the product of the petitioner's infancy, and no other excuse wasproffered for the delays (see Williams vNassau County Med. Ctr., 6 NY3d 531, 538 [2006]; Contreras v KBM RealtyCorp., 66 AD3d at 629; Rowe v Nassau Health Care Corp., 57 AD3d at 962-963; Arias v New York City Health & Hosps.Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832 [2008]). Furthermore, the evidencesubmitted by the petitioner failed to establish that the appellants had actual knowledge of theessential facts constituting the claim within the requisite 90-day period or a reasonable timethereafter (see Williams v Nassau County Med. Ctr., 6 NY3d at 538; Argueta v New York City Health & Hosps.Corp. [Coney Is. Hosp.], 74 AD3d 713, 713-714 [2010]; Matter of Rios v Westchester CountyHealthcare Corp., 32 AD3d 540, 541-542 [2006]; Matter of Alessi v County ofNassau, 85 AD2d 725, 726 [1981]). Finally, the petitioner failed to establish that theappellants would not be substantially prejudiced in maintaining a defense on the merits as a resultof the delay (see Williams v Nassau County Med. Ctr., 6 NY3d at 539; Argueta vNew York City Health & Hosps. Corp. [Coney Is. Hosp.], 74 AD3d at 714; Matter of Felice v Eastport/South ManorCent. School Dist., 50 AD3d 138, 152 [2008]). Dillon, J.P., Dickerson, Leventhal,Austin and Miller, JJ., concur.