| Williams v Jamaica Hosp. Med. Ctr. |
| 2015 NY Slip Op 00361 [124 AD3d 636] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| Daiquan Williams, an Infant, by His Mother and NaturalGuardian, Demetric Bowman, Respondent, v Jamaica Hospital Medical Center,Defendant, and City of New York, Appellant. |
Zachary W. Carter, Corporation Counsel, New York, N.Y. (Kristin M. Helmers andVictoria Scalzo of counsel), for appellant.
Fitzgerald & Fitzgerald, P.C., Yonkers, N.Y. (John M. Daly, Eugene S.R.Pagano, Mitchell Gittin, John J. Leen, and Christopher J. Lennon of counsel), forrespondent.
In an action to recover damages for personal injuries and lack of informed consent,the defendant City of New York appeals from an order of the Supreme Court, QueensCounty (O'Donoghue, J.), dated December 19, 2012, which granted the plaintiff's motionpursuant to General Municipal Law § 50-e (5) to deem the notice of claimtimely served nunc pro tunc or for leave to serve a late notice of claim upon it, anddenied its cross motion to dismiss the complaint insofar as asserted against it on theground that the plaintiff failed to timely serve a notice of claim.
Ordered that the order is reversed, on the law and in the exercise of discretion, withcosts, the plaintiff's motion pursuant to General Municipal Law § 50-e (5)to deem the late notice of claim timely served nunc pro tunc or for leave to file a latenotice of claim is denied, and the cross motion of the defendant the City of New York todismiss the complaint insofar as asserted against it on the ground that the plaintiff failedto timely serve a notice of claim is granted.
The infant plaintiff (hereinafter the plaintiff) alleges, inter alia, that he was injured asa result of the delay by employees of the defendant City of New York (hereinafter theCity) in transporting his mother to the hospital while she was in labor with him onAugust 10, 2006. Approximately four years after the alleged negligence, on or aboutAugust 19, 2010, the plaintiff served a notice of claim without leave of court andsubsequently commenced this action. Approximately 1
The Supreme Court improvidently exercised its discretion in granting the plaintiff'smotion (see Williams v NassauCounty Med. Ctr., 6 NY3d 531 [2006]). In exercising its discretion to grantleave to serve a late notice of claim, the court must consider various factors, includingwhether (1) [*2]the municipality acquired actualknowledge of the facts constituting the claim within 90 days of its accrual or a reasonabletime thereafter, (2) the delay would substantially prejudice the municipality in defendingon the merits, (3) the movant has demonstrated a reasonable excuse for failing to serve atimely notice of claim, and (4) the claimant is an infant (see Arias v New York City Health& Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 831 [2008]).Although the presence or absence of any one factor is not determinative, whether themunicipality acquired actual knowledge of the essential facts constituting the claimwithin 90 days of its accrual or within a reasonable time thereafter is of great importance(see Matter of Iacone v Town ofHempstead, 82 AD3d 888, 888-889 [2011]).
The plaintiff asserted that the City obtained actual knowledge of the essential factsconstituting the claim within 90 days of the alleged negligence or within a reasonabletime thereafter by virtue of a "FDNY Prehospital Care Report" (hereinafter the report)prepared by Emergency Medical Service (hereinafter EMS) workers. However, in orderfor the report to have provided actual knowledge of the essential facts, one must havebeen able to readily infer from the report that a potentially actionable wrong had beencommitted by the City (seeKuterman v City of New York, 121 AD3d 646 [2014]; Matter of Devivo v Town ofCarmel, 68 AD3d 991, 992 [2009]). The report did not provide the City withactual notice of the essential facts constituting the plaintiff's claim, inter alia, that the Citywas negligent in delaying transport of the plaintiff's mother to the hospital or that theplaintiff sustained any injuries as a result of the City's alleged negligence (id.).The report did not evince that EMS personnel, by their acts or omissions, inflicted anyinjury on the plaintiff (see Williams v Nassau County Med. Ctr., 6 NY3d at537).
The plaintiff also failed to demonstrate that the four-year delay in serving the noticeof claim, and the additional delay of 1
In addition, the plaintiff did not demonstrate a reasonable excuse for the failure toserve a timely notice of claim and for the delay in making his motion. The assertion bythe plaintiff's mother that she was unaware of the requirement to serve a notice of claimwithin 90 days after the accrual of the claim does not constitute a reasonable excuse (see Lyles v New York City Health& Hosps. Corp., 121 AD3d 648 [2014]; Matter of Destine v City ofNew York, 111 AD3d at 629; Matter of Bell v City of New York, 100 AD3d 990 [2012];Matter of Taylor v County ofSuffolk, 90 AD3d 769, 770 [2011]). The plaintiff also failed to submit anymedical evidence to support his mother's allegations that she had been more focused onproviding the extra care and treatment that the plaintiff needed because of his injuriesthan with pursuing a legal claim and that she did not readily appreciate the severity of theplaintiff's injuries (see Matter of Hampson v Connetquot Cent. Sch. Dist., 114AD3d at 791).
Furthermore, the plaintiff failed to establish a nexus between his infancy and thedelays herein. The plaintiff's infancy, without a showing of any nexus between theinfancy and the delays, was insufficient to constitute a reasonable excuse (see Bazile v City of New York,94 AD3d 929, 930 [2012]; Arias v New York City Health & Hosps.Corp. [Kings County Hosp. Ctr.], 50 AD3d at 832).
Accordingly, the plaintiff's motion pursuant to General Municipal Law§ 50-e (5) to deem the notice of claim timely served nunc pro tunc or forleave to serve a late notice of claim upon the City should have been denied, and the City'scross motion to dismiss the complaint insofar as asserted against it on the ground that theplaintiff failed to timely serve a notice of claim should have been granted. Rivera, J.P.,Leventhal, Chambers and Sgroi, JJ., concur.