Caruso v. County of Westchester
| Decision Date | 30 October 1995 |
| Citation | 633 N.Y.S.2d 75,220 A.D.2d 746 |
| Parties | In the Matter of John F. CARUSO, Respondent, v. COUNTY OF WESTCHESTER, etc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Marilyn J. Slaatten, County Attorney, White Plains (Wilson, Elser, Moskowitz, Edelman & Dicker [Jeanne A. Barry], of counsel), for appellant.
Before MILLER, J.P., and THOMPSON, RITTER and KRAUSMAN, JJ.
MEMORANDUM BY THE COURT.
In a proceeding for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the appeal is from an order of the Supreme Court, Westchester County (Silverman, J.), entered March 18, 1994, which granted the application.
ORDERED that the order is reversed, on the law, with costs, and the application for leave to file a late notice of claim is denied.
The Supreme Court improvidently exercised its discretion in granting the petitioner's application for leave to file a late notice of claim. While the petitioner's claim sounds in medical malpractice, and he asserts that his physical condition contributed to his delay in seeking leave to file a late notice, his application was supported solely by his own conclusory and self-serving allegations and those of his counsel (see, Ribeiro v. Town of N. Hempstead, 200 A.D.2d 730, 607 N.Y.S.2d 108; Matter of Dominguez v. New York City Health and Hosps. Corp., 178 A.D.2d 186, 576 N.Y.S.2d 872; Carroll v. City of New York, 130 A.D.2d 702, 516 N.Y.S.2d 23). Further, and contrary to the petitioner's contentions, there is no evidence in the record establishing that the appellant acquired actual notice of the essential facts constituting the petitioner's claim within the prescribed 90-day period or a reasonable time thereafter (see, Munnerlyn v. City of New York, 203 A.D.2d 437, 610 N.Y.S.2d 322; Carroll v. City of New York, supra). The appellant's possession of the petitioner's hospital records is insufficient to provide notice of the facts constituting his claim (Matter of Fallon v. County of Westchester, 184 A.D.2d 510, 511, 584 N.Y.S.2d 322; Matter of Aviles v. New York City Health and Hosps. Corp., 172 A.D.2d 237, 568 N.Y.S.2d 76; Perkins v. New York City Health and Hosps. Corp., 167 A.D.2d 150, 561 N.Y.S.2d 230; Bailey v. City of New York, 159 A.D.2d 280, 552 N.Y.S.2d 283). Under the circumstances, the petitioner's application should have been denied.
To continue reading
Request your trial
-
Dilworth v. Goldberg
...General Municipal Law § 50–d and other statutes governing medical malpractice claims. See, e.g., id.; Caruso v. County of Westchester, 220 A.D.2d 746, 746, 633 N.Y.S.2d 75 (2d Dep't 1995) (notice of claim required for claim that “sounds in medical malpractice”); cf.Abascal, 93 A.D.3d at 121......
-
Klass v. City of N.Y.
...770, 934 N.Y.S.2d 348;Matter of Aliberti v. City of Yonkers, 302 A.D.2d 456, 755 N.Y.S.2d 406;Matter of Caruso v. County of Westchester, 220 A.D.2d 746, 633 N.Y.S.2d 75). The petitioners contend that the City acquired timely, actual knowledge of the essential facts constituting the claim by......
-
Torres v. Tuckahoe Union Free Sch. Dist.
...655 N.Y.S.2d 572; Matter of Nunes v. City of New York, 233 A.D.2d 399, 400, 650 N.Y.S.2d 16; Matter of Caruso v. County of Westchester, 220 A.D.2d 746, 633 N.Y.S.2d 75). Moreover, the petitioners failed to establish that the appellant, the Tuckahoe Union Free School District (hereinafter th......
-
Reiter v. City of Oneida
...of Health, 198 A.D.2d 691, 692, 603 N.Y.S.2d 355) so as to minimize possible prejudice to respondent (see, Matter of Caruso v. County of Westchester, 220 A.D.2d 746, 633 N.Y.S.2d 75; Matter of Matarrese v. New York City Health & Hosps. Corp., supra, at 11, 633 N.Y.S.2d 837). Furthermore, pe......