Bailey v. City of New York
| Decision Date | 13 March 1990 |
| Citation | 159 A.D.2d 280,552 N.Y.S.2d 283 |
| Parties | Harold BAILEY, Plaintiff-Appellant, v. The CITY OF NEW YORK et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
S.P. Germansky, for plaintiff-appellant.
F. Leoussis, New York City, for defendants-respondents.
Before SULLIVAN, J.P., and MILONAS, ROSENBERGER and SMITH, JJ.
Order, Supreme Court, New York County (Francis N. Pecora, J.), entered October 31, 1988, which granted plaintiff's motion for reargument and, upon reargument, adhered to its prior decisions of September 26, 1986 and April 13, 1987, denying plaintiff's motion, pursuant to General Municipal Law § 50-e(5), to file a late notice of claim, unanimously affirmed, without costs.
In support of his various motions to invoke the court's discretion to permit him to file a late notice of claim, the plaintiff failed to sufficiently allege a malpractice claim. Nor did he provide a reasonable excuse for his eight-month delay. Under these circumstances, the fact that the hospital may have had knowledge of the circumstances surrounding his treatment, in the form of records in its possession, as in Quiroz v. City of New York, 154 A.D.2d 315, 546 N.Y.S.2d 604, cannot excuse the failure to file. Here, there was no affidavit from the plaintiff or a doctor, but only a superficial affidavit from counsel in support of the motion. Such moving papers are totally unsatisfactory (Rodriguez v. City of New York, 86 A.D.2d 533, 446 N.Y.S.2d 50, app. dismissed 58 N.Y.2d 899, 460 N.Y.S.2d 531, 447 N.E.2d 79; see, also, Bullard v. City of New York, 118 A.D.2d 447, 499 N.Y.S.2d 880, Kassal, J. concurring).
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