v.

• Decision Date: 20 February 2014
• Citation: 2014 N.Y. Slip Op. 01254,114 A.D.3d 564,980 N.Y.S.2d 450
• Parties: A Sariel ABAD, an Infant by his Mother and Natural Guardian, Yris MORALES, Plaintiff–Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, etc., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 564
980 N.Y.S.2d 450
2014 N.Y. Slip Op. 01254

A Sariel ABAD, an Infant by his Mother and Natural Guardian, Yris MORALES, Plaintiff–Appellant,
v.
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, etc., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Feb. 20, 2014.

[980 N.Y.S.2d 451]

Fitzgerald & Fitzgerald, P.C., Yonkers (Mitchell Gittin of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for respondent.

FRIEDMAN, J.P., RENWICK, FREEDMAN, FEINMAN, JJ.

Judgment, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered November 18, 2010, dismissing the complaint, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered October 26, 2010, which denied plaintiff's motion addressed to his notice of claim and granted defendant's cross motion to dismiss the complaint, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff appeals from the motion court's denial of his motion under General Municipal Law § 50–e(5) for leave to serve a late notice of claim on defendant for alleged obstetrical malpractice more than seven years after the claim accrued upon his discharge from defendant's hospital on September 13, 2002, six days after his birth. Plaintiff also appeals from the court's grant of defendant's cross motion for an order dismissing the complaint.

Under General Municipal Law § 50–e, the 90–day period for plaintiff to serve defendant with a notice of claim expired on December 14, 2002. In June 2004, plaintiff, then aged 21 1/2 months, was diagnosed with pervasive developmental disorders (PDD), but it was not until May 2005 that plaintiff's attorneys served a purported notice of claim on defendant alleging that plaintiff's injury was caused by defendant's malpractice. In January 2006, plaintiff commenced this action, but then waited until October 2009 to move for an order deeming the 2005 notice timely served nunc pro tunc, or, alternatively granting leave to file another late notice of claim.

We find that the motion court providently exercised its discretion in denying plaintiff's application. Section 50–e(5) of the General Municipal Law confers a court with broad discretion whether to grant leave to serve late notice ( see Diallo v. City of New York, 224 A.D.2d 339, 340, 638 N.Y.S.2d 58 [1st Dept. 1996] ), and on appeal the court's determination will not be disturbed absent a clear...