Dusch v. Erie Cnty. Med. Ctr.

• Decision Date: 12 June 2020
• Docket Number: CA 19-00402,1025
• Citation: 184 A.D.3d 1168,125 N.Y.S.3d 511
• Parties: In the Matter of James D. DUSCH, Claimant-Appellant, v. ERIE COUNTY MEDICAL CENTER and Erie County Medical Center Corporation, Respondents-Respondents.
• Court: New York Supreme Court — Appellate Division

184 A.D.3d 1168
125 N.Y.S.3d 511

In the Matter of James D. DUSCH, Claimant-Appellant,
v.
ERIE COUNTY MEDICAL CENTER and Erie County Medical Center Corporation, Respondents-Respondents.

1025
CA 19-00402

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

Entered: June 12, 2020

125 N.Y.S.3d 514

MEMORANDUM AND ORDER

184 A.D.3d 1168

It is hereby ORDERED that the order so appealed from is reversed in the exercise of discretion without costs and the application is granted upon condition that claimant shall serve the proposed notice of claim within 30 days of the date of entry of the order of this Court.

Memorandum: Claimant appeals from an order that denied his application for leave to serve a late notice of claim alleging that respondents' negligence in failing to properly monitor him following a surgical skin graft procedure to treat burns resulted in the need to amputate his right leg below the knee. Claimant contends that we should reverse the order and grant his application because his medical records, despite being submitted in reply to respondents' opposition, demonstrate that respondents had actual knowledge of the essential facts constituting the claim during his hospitalization and respondents will not be substantially prejudiced by the delay in service of the notice of claim. We agree.

184 A.D.3d 1169

"Pursuant to General Municipal Law § 50-e (1) (a), a party seeking to sue a public corporation ... must serve a notice of claim on the prospective [respondent] ‘within ninety days after the claim arises’ " ( Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 460, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016], rearg denied 29 N.Y.3d 963, 51 N.Y.S.3d 496, 73 N.E.3d 853 [2017] ). " General Municipal Law § 50-e (5) permits a court, in its discretion, to [grant leave] extend[ing] the time for a [claimant] to serve a notice of claim" ( id. at 460-461, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). "The decision whether to grant such leave ‘compels consideration of all relevant facts and circumstances,’ including the ‘nonexhaustive list of factors’ in section 50-e (5)" ( Dalton v. Akron Cent. Schools , 107 A.D.3d 1517, 1518, 966 N.Y.S.2d 787 [4th Dept. 2013], affd 22 N.Y.3d 1000, 979 N.Y.S.2d 559, 2 N.E.3d 928 [2013], quoting Williams v. Nassau County Med. Ctr. , 6 N.Y.3d 531, 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ). " ‘It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the [public corporation] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the [public corporation] in maintaining a defense on the merits’ " ( Matter of Turlington v. Brockport Cent. Sch. Dist. , 143 A.D.3d 1247, 1248, 39 N.Y.S.3d 338 [4th Dept. 2016] ). "The presence or absence of any given factor is not determinative of the application and, moreover, the factors are ‘directive rather than exclusive’ " ( Matter of Gumkowski v. Town of Tonawanda , 156 A.D.3d 1481, 1481, 65 N.Y.S.3d 891 [4th Dept. 2017] ). "While the discretion of Supreme Court [in considering the application] will generally be upheld absent demonstrated abuse[,] ... such discretion is ultimately reposed in [the Appellate Division]" ( Matter of Kressner v. Town of Malta , 169 A.D.2d 927, 928, 564 N.Y.S.2d 643 [3d Dept. 1991] ; see Matter of Stowe v. City of Elmira , 31 N.Y.2d 814, 815, 339 N.Y.S.2d 463, 291 N.E.2d 586 [1972] ; Rechenberger v. Nassau County Med. Ctr. , 112 A.D.2d 150, 153, 490 N.Y.S.2d 838 [2d Dept. 1985] ; Matter of Febles v. City of New York , 44 A.D.2d 369, 372, 355 N.Y.S.2d 147 [1st Dept. 1974] ;

125 N.Y.S.3d 515

Matter of Crume v. Clarence Cent. School Dist. No. 1 , 43 A.D.2d 492, 495, 353 N.Y.S.2d 579 [4th Dept. 1974] ).

Preliminarily, we note that "the failure of claimant to offer a reasonable excuse for [his] delay in serving a notice of claim ... is not necessarily ‘fatal to the application’ " ( Matter of Lindstrom v. Board of Educ. of Jamestown City School Dist. , 24 A.D.3d 1303, 1304, 805 N.Y.S.2d 908 [4th Dept. 2005] ).

As a further preliminary matter, we reject the contention of respondents and the dissent that it is inappropriate under the circumstances of this case to consider the medical records submitted by claimant for the first time in his reply papers. In

184 A.D.3d 1170

general, " ‘[t]he function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds [or evidence] for the motion [or application]’ " ( Matter of Kennelly v. Mobius Realty Holdings LLC , 33 A.D.3d 380, 381, 822 N.Y.S.2d 264 [1st Dept. 2006] ). "This rule, however, is not inflexible, and a court, in the exercise of its discretion, may consider a claim or evidence offered for the first time in reply where the offering party's adversaries responded to the newly presented claim or evidence" ( id. at 381-382, 822 N.Y.S.2d 264 ; see Bayly v. Broomfield , 93 A.D.3d 909, 910-911, 939 N.Y.S.2d 634 [3d Dept. 2012] ).

Here, as claimant correctly contends, although he submitted the medical records for the first time in his reply papers, the record establishes that respondents "had ample opportunity to respond to [that submission] during oral argument on the [application] before [the court]" ( Bayly , 93 A.D.3d at 910, 939 N.Y.S.2d 634 ). Indeed, respondents' counsel argued at length that the medical records were insufficient to establish that respondents had actual knowledge of the essential facts constituting the claim and declined to request permission to submit a surreply despite the repeated suggestion by claimant's counsel that the court could afford respondents such relief if they considered their ability to respond to be inadequate. Thus, under the circumstances of this case, "respondent[s] suffered no prejudice as a result of [claimant's] belated evidentiary submission," and we exercise our discretion to consider it ( Kennelly , 33 A.D.3d at 382, 822 N.Y.S.2d 264 ).

Upon consideration of the medical records, we agree with claimant that respondents had actual knowledge of the essential facts constituting the claim during his hospitalization. The actual knowledge requirement of General Municipal Law § 50-e (5) "contemplates ‘actual knowledge of the essential facts constituting the claim,’ not knowledge of a specific legal theory" ( Williams , 6 N.Y.3d at 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; see Wally G. v. New York City Health & Hosps. Corp. [Metro. Hosp.] , 27 N.Y.3d 672, 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067 [2016], rearg denied 28 N.Y.3d 905, 45 N.Y.S.3d 373, 68 N.E.3d 102 [2016] ). "A medical provider's mere possession or creation of medical records does not ipso facto establish that it had ‘actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury’ " ( Wally G. , 27 N.Y.3d at 677, 37...