Kelley v. N.Y. City Health and Hospitals Corp.

• Decision Date: 07 September 2010
• Citation: 907 N.Y.S.2d 11,76 A.D.3d 824
• Parties: In re Robert KELLEY, Petitioner-Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 11

76 A.D.3d 824

In re Robert KELLEY, Petitioner-Respondent,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent-Appellant.

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

Sept. 7, 2010.

Michael A. Cardozo, Corporation Counsel, New York (Julian L. Kalkstein of counsel), for appellant.

Zucker & Bennett, P.C., Brooklyn (Gary A. Zucker of counsel), for respondent.

FRIEDMAN, J.P., CATTERSON, McGUIRE, ACOSTA, RENWICK, JJ.

Order, Supreme Court, New York County (Douglas E. McKeon, J.), entered May 6, 2009, which granted a petition for leave to serve a late notice of claim, unanimously reversed, on the law and the facts, without costs, the petition denied, and the proceeding dismissed.

The issue on this appeal is whether Supreme Court properly granted petitioner's application for leave to serve on respondent New York City Health and Hospitals Corporation a notice of claim after the statutory 90 days had expired. In determining an application for leave to serve a late notice of claim (General Municipal Law § 50-e[5] ), "the court must consider relevant factors and circumstances, including whether an infant is involved, whether there is a reasonable excuse for the delay, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days or a reasonable time thereafter, and whether the public corporation's defense on the merits would be substantially prejudiced by the delay" ( Seymour v. New York City Health & Hosps. Corp., 21 A.D.3d 1025, 1026, 801 N.Y.S.2d 370 [2005] ). Not a single one of the relevant factors weighs in petitioner's favor.

Petitioner, who was then 29 years old, was seen at Harlem Hospital in the early morning hours of December 1, 2007, after being punched in the left eye. The hospital record indicates that he had swelling and bruising from above his left eye extending down to his cheek. CAT scans were taken of petitioner's head and maxillofacial bones. The hospital records indicate that there were "soft tissue swelling/hematoma" and no fractures and that "[t]he extraocular muscles, the optic nerve/sheath complexes and remaining intraconal and extraconal fat and soft tissue structures appear unremarkable." Petitioner was released later that day after being directed to return if he experienced headaches, vomiting, trouble seeing or fever. The records further indicate that petitioner was directed to see his primary care physician within 5 days.

Petitioner did not return to the hospital and did not comply with this instruction tosee his primary care physician within 5 days. Rather, even though he alleges that "[d]uring the ensuing months [his] vision continued to deteriorate," he did not seek any further medical treatment for more than one year. On December 24, 2008, while visiting his mother in California, petitioner consulted with a doctor who petitioner asserts, advised him that he had "a severe retinal detachment in [his] left eye." Thereafter, upon returning to New York, petitioner asserts that he consulted with a retinal specialist on January 7,2009 and was advised "that as a result of the failure to promptly treat the injury ... following the ... assault, [he] developed a severe retinal detachment that has caused permanent diminution of vision in [his] left eye and may result in total blindness in the eye."

On or about February 12, 2009, more than 14 months after petitioner was seen at Harlem Hospital, petitioner sought leave to serve a late notice of claim. In the petition, he asserts that although there was swelling and tenderness in the area in and around his left eye, "there was no examination or evaluation by an ophthalmologist," an ophthalmology consult was not requested, and he was not given a referral to an ophthalmologist. Petitioner then asserts that "an evaluation by an ophthalmologist should have been performed," and "that as a result of the failure to promptly treat the injury ... [he] developed a severe retinal detachment that has caused permanent diminution of vision ... [which] may result in total blindness in the eye." Petitioner makes no effort to support these assertions with an affidavit from a physician. Nonetheless, he contends that he should be permitted to serve a late notice of claim because respondent "is in possession of the relevant medical records" and he "had no knowledge until recently that his retina had been injured."

In the first place, petitioner is an adult and was an adult at the time of the incident. Second, he clearly failed to provide a reasonable excuse for the delay of approximately 11 months in seeking to serve a notice of claim. While he alleges that his failure to see a specialist was due to respondent's failure to provide a proper diagnosis or referral, he does not deny that he was advised to return to the hospital if he suffered any difficulty with his vision and to see his primary care physician in five days. Additionally, he admits that his vision began to deteriorate in the "ensuing months" but fails to provide any details regarding when he first experienced difficulty with his vision. If all the deterioration occurred in February or March of 2008, petitioner's delay would be manifestly inexcusable. But for all that can be gleaned from petitioner's motion, that well may be the case. Of course, moreover, the burden is on petitioner ( Matter of Lauray v. City of New York, 62 A.D.3d 467, 878 N.Y.S.2d 65). Furthermore, petitioner also failed to provide any details regarding why he neglected to follow the advice given to him by the hospital staff.

Petitioner maintains that the fact that he waited more than a year to seek treatment is only relevant to the issue of comparative fault. To the contrary, it is clearly relevant to the issue of whether he provided a reasonable excuse. In the absence of anyinformation regarding when the deterioration began and why he did not seek treatment despite the deterioration, petitioner has offered no excuse, let alone a reasonable one, for his delay in seeking leave to serve a notice of claim.

Petitioner relies on respondent's possession of the medical records in asserting that it had actual knowledge of the facts constituting the claim. As the Court of Appeals has stressed, however, "[m]erelyhaving or creating medical 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 plaintiff ' " ( Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] [emphasis added]; see also Delgado v. City of New York, 39 A.D.3d 387, 833 N.Y.S.2d 509 [2007]; Matter of Nieves v. New York Health & Hosps. Corp., 34 A.D.3d 336, 338, 825 N.Y.S.2d 40 [2006] ).

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