Matarrese v. New York City Health and Hospitals Corp.

• Decision Date: 20 November 1995
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Thomas MATARRESE, etc., Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Appellant.

Page 837

633 N.Y.S.2d 837

215 A.D.2d 7

In the Matter of Thomas MATARRESE, etc., Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Appellant.

Supreme Court, Appellate Division,

Second Department.

Nov. 20, 1995.

[215 A.D.2d 8] Paul A. Crotty, Corporation Counsel, New York City (Francis Caputo, Elizabeth Natrella, and Elizabeth Dvorkin, of counsel), for appellant.

John Anthony Bonina & Associates, P.C., Brooklyn (Sandra D. Janin, of counsel), for respondent.

Before SULLIVAN, J.P., and BALLETTA, ROSENBLATT and MILLER, JJ.

BALLETTA, Justice.

Although the determination of whether to grant an application for leave to serve a late notice of claim is generally left to the sound discretion of the trial court (see, Matter of Kyser v. New York City Hous. Auth., 178 A.D.2d 601, 577 N.Y.S.2d 487; Matter of Gruber v. City of New York, 156 A.D.2d 450, 548 N.Y.S.2d 911), we find that under the circumstances of this case, the trial court improvidently exercised its discretion in granting the petitioner's application. The petitioner offered no explanation for his eight-year delay in making the application, and there were no other factors present which would have overcome the prejudice suffered by the appellant as a result of the delay. The infancy of the claimant, in and of itself, does not automatically justify the serving of a late notice of claim.

In this case, it is alleged that the infant claimant sustained, inter alia, brain damage and cerebral palsy as a result of the negligence of physicians employed at the appellant's Coney Island Hospital. The alleged negligence occurred at the time of the infant claimant's birth in August 1985. Eight years later in July 1993, the petitioner, the infant claimant's father, made an application for leave to serve a late notice of claim, asserting merely that the application was timely brought within the 10-year tolling period for infancy and that the appellant had knowledge of the facts and would not be prejudiced by It is well settled that in determining whether to permit service of a late notice under General Municipal Law § 50-e, a court should consider all relevant facts 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 would be substantially prejudiced by the delay (see, Matter of D'Anjou v. New York City Health & Hosps. Corp., 196 A.D.2d 818, 820, 601 N.Y.S.2d 944).

virtue of the medical records in its possession.

When all the relevant facts and circumstances of this case are taken into consideration, it is clear that it was an improvident exercise of discretion to grant the petitioner leave to serve a late notice of claim. The petitioner failed to provide any excuse for his eight-year delay in seeking leave to serve a late notice of claim (see, Matter of Plantin v. New York City Hous. Auth., 203 A.D.2d 579, 611 N.Y.S.2d 28; Ribeiro v. Town of N. Hempstead, 200 A.D.2d 730, 607 N.Y.S.2d 108), and, although an infant is involved, the delay was manifestly unrelated to the infancy (see also, Matter of Diaz v. City of New York, 211 A.D.2d 789, 622 N.Y.S.2d 102; Matter of Kornell v. Clarkstown Cent. School Dist., 202 A.D.2d 426, 612 N.Y.S.2d 867; Kardashinsky v. New York City Hous. Auth., 182 A.D.2d 676, 581 N.Y.S.2d 692). To merely assert, as the dissent does, that the motion was timely because it was made within the 10-year tolling provision for infancy is insufficient. General Municipal Law § 50-e does not provide for the automatic approval of an application for leave to serve a late notice of claim simply because it was made within the applicable Statute of Limitations for commencing an action and any tolling periods. This is not a case where a petitioner has attempted to provide an excuse, no matter how feeble, for the eight-year delay. Rather, the petitioner herein never bothered to put forth any excuse whatsoever (see, Matter of Mondaca v. County of Westchester, 195 A.D.2d 511, 600 N.Y.S.2d 260).

Moreover, there is absolutely nothing in the record to support the dissent's assertion that the delay "was directly attributable to the infancy". The nature of the infant claimant's injuries would have manifested itself within a short period of time after his birth. Yet, his father waited eight years without explanation before seeking leave to serve a late notice of claim (see, Kornell v. Clarkstown Cent. School Dist., supra; Matter of Andersen v. Nassau County Med. Center, 135 A.D.2d 530, 521 N.Y.S.2d 755).

While the absence of a nexus between the delay and the infancy will not automatically preclude the granting of leave to serve a late notice of claim (see, Matter of Kurz v. New York City Health & Hosps. Corp., 174 A.D.2d 671, 672, 571 N.Y.S.2d 533), certainly "the absence of a showing that the delay is the product of the infancy itself is a factor which militates against granting such relief" (see, Matter of Gandia v. New York City Hous. Auth., 173 A.D.2d 824, 571 N.Y.S.2d 52; also, Kardashinsky v. New York City Hous. Auth., 182 A.D.2d 676, 581 N.Y.S.2d 692, supra ). Moreover, "the mere fact of infancy alone is not sufficient as a matter of law to compel the granting of an application for leave to serve a late notice of claim" (see, Matter of Kurz v. New York City Health & Hosps. Corp., supra at 672, 571 N.Y.S.2d 533; also, Doukas v. East Meadow Union Free School Dist., 187 A.D.2d 552, 590 N.Y.S.2d 226; Matter of Kyser v. New York City Hous. Auth., 178 A.D.2d 601, 577 N.Y.S.2d 487, supra; Matter of Salyer v. Valley Cent. School Dist., 163 A.D.2d 782, 558 N.Y.S.2d 746). General Municipal Law § 50-e does not grant special dispensation to a claimant merely because he or she is an infant (see, Matter of Kyser v. New York City Hous. Auth., supra; Matter of Groshans v. Town of Babylon, 143 A.D.2d 666, 533 N.Y.S.2d 18; Caparco v. Town of Brookhaven, 133 A.D.2d 803, 520 N.Y.S.2d 185).

Further, the petitioner failed to demonstrate a lack of prejudice to the appellant as a result of the unexcused eight-year delay (see, Munnerlyn v. City of New York, 203 A.D.2d 437, 610 N.Y.S.2d 322; Matter of D'Anjou v. New York City Health & Hosps. Corp., supra; Matter of Mondaca v. County In addition, the obvious prejudice that has been suffered by the appellant as a result of the eight-year delay cannot be dismissed with a mere wave of the hand and the comment that the appellant has medical records in its possession. While it is true that in a number of cases the courts have indicated that the possession of medical records was a favorable factor toward granting leave to serve a late notice of claim, in those cases there were other factors present which also supported such relief. Thus, those cases are distinguishable from the instant case where there are no other mitigating circumstances present.

                of Westchester, 195 A.D.2d 511, 600 N.Y.S.2d 260 supra ).   Indeed, it is undisputed that the four physicians who treated the infant claimant at the time of his birth are no longer employed by the appellant.  The two doctors who performed the caesarean section in August 1985 had left the appellant's employ by February 1987.  The doctor who examined the infant claimant immediately after birth had left the appellant's employ in June 1986, while the emergency room doctor left in September 1989.  Thus, four years had passed since the last doctor had terminated his relationship with the appellant before the petitioner sought leave to serve a late notice of claim.  Moreover, contrary to the dissent's suggestion, there is nothing in the record which would support a finding [215 A.D.2d 11] that these doctors were available to the appellant at the time the petitioner's application was made.  Thus, the appellant has been prejudiced by the delay (see, Lallave v. City of New York, 127 A.D.2d 634, 511 N.Y.S.2d 869;  Baehre v. County of Erie, 94 A.D.2d 943, 464 N.Y.S.2d 69)
                

Furthermore, unlike the facts in Rechenberger v. Nassau County Med. Center, 112 A.D.2d 150, 490 N.Y.S.2d 838, relied upon by the dissent, there is nothing in the record which would suggest that the medical records contain the facts and information necessary to conduct an adequate investigation into the claim. The prejudice that would arise as a result of any inadequacies in the record would be further compounded by the prejudice arising from the fact that the four key physicians are no longer under the control of the appellant. Accordingly, the possible existence of medical records in this case does not warrant the granting of leave to serve a late notice of claim (see, D'Anjou v. New York City Health & Hosps. Corp., 196 A.D.2d 818, 601 N.Y.S.2d 944, supra; Matter of Aviles v. New York City Health & Hosps. Corp., 172 A.D.2d 237, 568 N.Y.S.2d 76; Andersen v. Nassau County Med. Center, 135 A.D.2d 530, 521 N.Y.S.2d 755, supra ).

Contrary to the position taken by the dissent, this case is remarkable for its complete absence of any factors which would justify granting leave to serve a late notice of claim. To grant leave in this case would be tantamount to rubberstamping the petitioner's application merely because an infant is involved. General Municipal Law § 50-e does not grant infants automatic leave to serve late notices and neither should the courts.

SULLIVAN, J.P., and ROSENBLATT, J., concur.

MILLER, Justice, dissenting:

I do not agree with the conclusion of the majority that the Supreme Court erred in granting leave to serve a late notice of claim. Rather, I find that the Supreme Court providently exercised its discretion in granting the application, as the petitioner demonstrated that the appellant, the New York City Health and Hospitals Corporation (hereinafter HHC), was not prejudiced by the delay, and that it had acquired actual notice of the facts pertaining to the...