Mandia v. County of Westchester
| Decision Date | 14 June 1990 |
| Citation | 556 N.Y.S.2d 868,162 A.D.2d 217 |
| Parties | In re Application of Joseph MANDIA, et al., Petitioners-Appellants, v. COUNTY OF WESTCHESTER, et al., Respondents-Respondents. |
| Court | New York Supreme Court — Appellate Division |
G. Richman, New York City, for petitioners-appellants.
A.M. Sciretta, Brooklyn, for respondents-respondents.
Before MURPHY, P.J., and CARRO, MILONAS, ASCH and KASSAL, JJ.
Order, Supreme Court, Westchester County (Lucille Polk Buell, J.), entered on or about September 29, 1988, which denied petitioners' application to file a late notice of claim, unanimously affirmed, without costs.
The IAS court properly exercised its discretion in denying petitioners' application to file a late notice of claim on the grounds that respondent Westchester County Medical Center (the Hospital) would be prejudiced in its defense on the malpractice claim by petitioners' eight month delay in serving notice of the claim. (see General Municipal Law Sec. 50-e[1][a].
Petitioners failed to submit a medical affidavit by a physician or otherwise to substantiate their claim that the delay in service was due to physical incapacity (see Fox v. City of New York, 91 A.D.2d 624, 625, 456 N.Y.S.2d 806). Additionally, the Incident Report prepared by the Hospital's staff was devoid of any fact(s) which could be construed as providing the Hospital with actual knowledge of a potential malpractice claim (see General Municipal Law Sec. 50-e[5].
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