| Matter of Khan v New York City Health & Hosps.Corp. |
| 2016 NY Slip Op 00500 [135 AD3d 940] |
| January 27, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Liaquat A. Khan,Appellant, v New York City Health and Hospitals Corporation et al.,Respondents, et al., Respondents. |
Herzfeld & Rubin, P.C., New York, NY (Miriam Skolnik and SharynRootenberg of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgowand Devin Slack of counsel), for respondents-respondents New York City Health andHospitals Corporation and Kings County Hospital Center.
In a proceeding pursuant to General Municipal Law § 50-e (5) for leaveto serve a late notice of claim or, in the alternative, to deem a proposed notice of claimtimely served nunc pro tunc, the petitioner appeals from an order of the Supreme Court,Kings County (Steinhardt, J.), dated July 31, 2014, which denied the petition and, ineffect, dismissed the proceeding.
Ordered that the order is reversed, on the law and in the exercise of discretion, withcosts, that branch of the petition which is to deem the proposed notice of claim timelyserved nunc pro tunc is granted, and that branch of the petition which is for leave toserve a late notice of claim is denied as unnecessary.
The petitioner alleges that, on November 21, 2012, Coney Island Hospital transferredhim via ambulance to the respondent Kings County Medical Center (hereinafter KCMC)for evaluation and treatment of his right foot, which had been injured in a fall four daysearlier. According to KCMC's medical records, upon admission, the petitioner had anischemic right foot, that is, a deficient supply of blood was getting to the foot, and asurgical consult was ordered. The respondent surgeon, Timothy Carter, examined thepetitioner's right foot approximately eight hours after the petitioner's admission to KCMCand determined that immediate surgical and/or medical intervention could not effectivelytreat the petitioner's ischemic right foot. The petitioner was informed that he would mostlikely require a foot amputation and he was immediately discharged with instructions tofollow up at KCMC's vascular clinic in seven days. The petitioner alleged that, duringthe week following his discharge from KCMC, the pain, swelling, and numbness in hisright foot increased. According to the petitioner, he returned to KCMC after thatseven-day period and, because the vascular clinic staff did not have a record of hisscheduled appointment, he was not seen there. Later that same day, the petitioner wasadmitted to Maimonides Medical Center (hereinafter Maimonides), where heimmediately underwent diagnostic testing, and the Maimonides physicians attempted toincrease the blood flow to the right foot through various medical and surgical [*2]interventions. These attempts were ultimately unsuccessfuland, in March 2013, approximately four months after the petitioner had been admitted toKCMC, he underwent a partial amputation of his right foot.
On March 5, 2014, the petitioner commenced this proceeding pursuant to GeneralMunicipal Law § 50-e (5) for leave to serve a late notice of claim alleging,inter alia, medical malpractice against the respondents, or, in the alternative, to deem aproposed notice of claim timely served nunc pro tunc. The petitioner contended that therespondents' failure to provide him with timely and proper treatment allowed his rightfoot to worsen and eventually require partial amputation. The Supreme Court denied thepetition and, in effect, dismissed the proceeding. We reverse.
A court, in exercising its discretion as to whether to grant leave to serve a late noticeof claim, shall consider various factors that include the following: (1) whether the publiccorporation has acquired actual knowledge of the essential facts constituting the claimwithin 90 days from its accrual or a reasonable time thereafter; (2) whether the delaysubstantially prejudiced the public corporation in defending on the merits; and (3)whether the claimant has demonstrated a reasonable excuse for failing to serve a timelynotice of claim (see Williams vNassau County Med. Ctr., 6 NY3d 531, 535 [2006]; Castaneda v Nassau Health CareCorp., 89 AD3d 782, 782-783 [2011]; Matter of Fouto v City of Yonkers, 83 AD3d 708, 708[2011]; Matter of Kaur v NewYork City Health & Hosps. Corp., 82 AD3d 891, 891-892 [2011]).
In a proceeding pursuant to General Municipal Law § 50-e (5) against apublic hospital, to establish actual knowledge of the essential facts constituting the claim,it is not enough for the petitioner to show that the respondent possessed or maintainedmedical records. The medical records must also "suggest injury attributable tomalpractice" (Williams v Nassau County Med. Ctr., 6 NY3d at 537).
Here, the Supreme Court improvidently exercised its discretion in denying thepetition (see Matter ofHendershot v Westchester Med. Ctr., 8 AD3d 381, 382 [2004]; see also Gibbs v City of NewYork, 22 AD3d 717, 719 [2005]; Medley v Cichon, 305 AD2d 643, 644[2003]). The petitioner contends that the respondents committed medical malpractice byfailing to perform certain diagnostic tests and medical and surgical intervention to restoreblood flow to his right foot and save it from amputation. The respondents acquired noticeof the essential facts of this claim well within 90 days after the claim arose (see Cifuentes v New York CityHealth & Hosps. Corp., 43 AD3d 385, 386 [2007]). KCMC's medicalrecords show that the petitioner's right foot had an ischemic injury with arterial blockage,and that the KCMC's doctors determined that surgical or medical intervention at that timewas unavailing and that amputation was likely. Since the respondents had actualknowledge of the essential facts constituting the petitioner's claim by virtue of KCMC'smedical records, the respondents will not be prejudiced by the delay in the service of thenotice of claim (see Gibbs v City of New York, 22 AD3d at 719; Owens vNew York City Health & Hosps. Corp., 271 AD2d 514, 515 [2000]). Further,all the health care provider respondents are either still employed at KCMC or practice inBrooklyn, and the respondents have not alleged that there are any witnesses who are nolonger available to testify.
Although the petitioner lacked a reasonable excuse for his failure to timely serve hisnotice of claim, the lack of a reasonable excuse is not dispositive when, as here, there istimely actual notice and the absence of prejudice (see Matter of March v Town of Wappinger, 29 AD3d 998,999 [2006]; Matter of Hendershot v Westchester Med. Ctr., 8 AD3d at 382).
Accordingly, the Supreme Court should have granted that branch of the petitionwhich was to deem the proposed notice of claim timely served nunc pro tunc. Leventhal,J.P., Dickerson, Maltese and Duffy, JJ., concur.