| Matter of Hernandez v County of Suffolk |
| 2011 NY Slip Op 09643 [90 AD3d 1049] |
| December 27, 2011 |
| Appellate Division, Second Department |
| In the Matter of Briseida Felipe Hernandez,Appellant, v County of Suffolk et al., Respondents. |
—[*1] Christine Malafi, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel),for respondents.
In a proceeding pursuant to General Muncipal Law § 50-e (5) for leave to serve a latenotice of claim, the petitioner appeals from (1) an order of the Supreme Court, Suffolk County(Cohen, J.), dated November 10, 2010, which denied the petition, and (2) an order of the samecourt dated March 22, 2011, which denied their motion for leave to reargue the petition.
Ordered that the appeal from the order dated March 22, 2011, is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order dated November 10, 2010, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The Supreme Court did not improvidently exercise its discretion in denying the petition forleave to serve a late notice of claim for the alleged medical malpractice. The mere fact that therespondents were in possession of the infant's medical records did not, without more, establishthat the respondents had actual knowledge of a potential injury. "Where, as here, there is little tosuggest injury attributable to malpractice during delivery, comprehending or recording the factssurrounding the delivery cannot equate to knowledge of facts underlying a claim" (Williams v Nassau County Med. Ctr., 6NY3d 531, 537 [2006]; see Arias vNew York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832[2008]; Bucknor v New York CityHealth & Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811 [2007]). Furthermore, thepetitioner failed to present a satisfactory excuse for the delay in seeking leave to serve a latenotice of claim (see Bucknor v NewYork City Health & Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811 [2007]; Matter of Pico v City of New York, 8AD3d 287, 288 [2004]; Matter of Lodati v City of New York, 303 AD2d 406, 407[2003]). Finally, the petitioner failed to demonstrate that the respondents had not been prejudicedby the delay (see Casias v City [*2]of New York, 39 AD3d 681 [2007]). Skelos, J.P.,Angiolillo, Belen, Lott and Roman, JJ., concur.