Argueta v. N.Y. City Health & Hospitals Corp.

• Decision Date: 01 June 2010
• Citation: 74 A.D.3d 713,905 N.Y.S.2d 611
• Court: New York Supreme Court — Appellate Division
• Parties: Sophie ARGUETA, etc., appellant, et al., plaintiff, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION (Coney Island Hospital), respondent.

905 N.Y.S.2d 611

74 A.D.3d 713

Sophie ARGUETA, etc., appellant, et al., plaintiff,

v.NEW YORK CITY HEALTH & HOSPITALS CORPORATION (Coney Island Hospital), respondent.

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

June 1, 2010.

Sheldon J. Tashman, P.C., New York, N.Y. (Richard H. Bliss of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Mordecai Newman of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, RANDALL T. ENG, and ARIEL E. BELEN, JJ.

In an action to recover damages for medical malpractice, etc., the infant plaintiff, Sophie Argueta, appeals from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated January 9, 2009, which denied her motion to deem her late notice of claim timely served nunc pro tunc, or, in the alternative, for leave to serve a late notice of claim.

ORDERED that the order is affirmed, with costs.

In exercising its discretion to grant leave to serve a late notice of claim, the court must consider various factors, including whether (1) the claimant is an infant, (2) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits ( see General Municipal Law § 50-e[5]; Matter of Barnes v. New York City Health & Hosps. Corp., 69 A.D.3d 934, 893 N.Y.S.2d 613; Contreras v. KBM Realty Corp., 66 A.D.3d 627, 629, 887 N.Y.S.2d 172; Matter of Gonzalez v. City of New York, 60 A.D.3d 1058, 1059, 876 N.Y.S.2d 139; Rowe v. Nassau Health Care Corp., 57 A.D.3d 961, 962, 871 N.Y.S.2d 330). Actual knowledge of the essential facts is an important factor in determining whether to grant an extension, and should be accorded great weight ( see Matter of Gonzalez v. City of New York, 60 A.D.3d at 1059, 876 N.Y.S.2d 139; Beretey v. New York City Health & Hosps. Corp. [ Elmhurst Hosp. Ctr.], 56 A.D.3d 591, 593, 868 N.Y.S.2d 232).

Contrary to the infant plaintiff's contention, the defendant New York City Health and Hospitals Corporation (Coney Island Hospital) (hereinafter NYCHHC) did not acquire actual knowledge of thefacts constituting her claim within the requisite 90-day period, or a reasonable time thereafter, by virtue of its possession of hospital records relating to her delivery and follow-up care ( see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154; Matter of Gonzalez v. City of New York, 60 A.D.3d at 1059-1060, 876 N.Y.S.2d 139). "Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury" on the claimant ( Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154; see Contreras v. KBM Realty Corp., 66 A.D.3d at 630, 887 N.Y.S.2d 172; Matter of Ali v. New York City Health & Hosps. Corp., 61 A.D.3d 860, 861, 877 N.Y.S.2d 221; Rowe v. Nassau Health Care Corp., 57 A.D.3d at 963, 871 N.Y.S.2d 330; Arias v. New York City Health & Hosps. Corp. [ kings countY hosp. ctr.], 50 a.d.3D 830, 833, 855 n.y.s.2D 265).

Furthermore, the infant plaintiff did not move to deem her late notice of claim timely served nunc pro tunc, or, in the alternative, for leave to serve a late notice of claim until more than six years after she was last treated at the hospital, and this delay was not a product of her infancy ( see Contreras v. KBM Realty Corp., 66 A.D.3d at 629, 887 N.Y.S.2d 172, Matter of Ali...