Matter of Nieves v. New York Health and Hospitals Corporation

• Decision Date: 21 November 2006
• Docket Number: 8568.,8569N.
• Parties: In the Matter of LUZ NIEVES et al., Respondents, v. NEW YORK HEALTH AND HOSPITALS CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 336

825 N.Y.S.2d 40

2006 NY Slip Op 08647

In the Matter of LUZ NIEVES et al., Respondents, v. NEW YORK HEALTH AND HOSPITALS CORPORATION, Appellant.

8568.

8569N.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided November 21, 2006.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 27, 2005, which granted petitioners' motion

for leave to file a late notice of claim, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion denied. Appeal from order, same court and Justice, entered August 9, 2005, which, to the extent appealed from as limited by the briefs, denied respondent's motion for leave to renew petitioners' prior motion, unanimously dismissed, without costs, as academic.

The intent underlying the notice of claim requirement embodied in General Municipal Law § 50-e is to protect the municipality from unfounded claims and to ensure that it has an adequate opportunity to timely explore the merits of the claim while the facts are still "fresh" (Adkins v City of New York, 43 NY2d 346, 350 [1977]; Torres v New York City Hous. Auth., 261 AD2d 273, 274 [1999], lv denied 93 NY2d 816 [1999]). General Municipal Law § 50-e (5) bestows upon the court the discretion to either grant or deny leave to serve a late notice of claim, within certain parameters (Matter of Porcaro v City of New York, 20 AD3d 357, 358 [2005]; Matter of Dubowy v City of New York, 305 AD2d 320, 321 [2003]), and some of the key factors to be considered by the court when exercising its discretion are: whether the petitioner has demonstrated a reasonable excuse for failing to file the notice of claim within the statutory time frame; whether the public corporation acquired actual notice of the essential facts within 90 days after the claim arose or a reasonable time thereafter; and whether the delay would substantially prejudice the municipality in defending on the merits (Powell v City of New York, 32 AD3d 227, 228 [2006]; Matter of Lodati v City of New York, 303 AD2d 406, 407 [2003]). Moreover, the presence or absence of any one factor is not determinative (Matter of Semyonova v New York City Hous. Auth., 15 AD3d 181, 182 [2005]; Matter of Dubowy v City of New York, 305 AD2d at 321), and the fact that a claimant is an infant does not, by itself, compel the granting of leave to file a late notice of claim (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537-538 [2006]; Matter of Dumancela v New York City Health & Hosps. Corp., 32 AD3d 515, 516 [2006]).

In the matter at bar, petitioner failed to establish that her delay of approximately one year in seeking leave to serve a late notice of claim was the product of her daughter's infancy, or of the need to provide her with extraordinary care (id.; Berg v Town of Oyster Bay, 300 AD2d 330 [2002]).

Further, with regard to petitioners' claim that respondent acquired actual knowledge of the facts within 90 days, or a reasonable time thereafter, based upon its possession of the relevant medical records, the Court of Appeals has recently stated that:

"Merely having or creating hospital 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 during the birth process.

"The relevant inquiry is whether the hospital had actual knowledge of the facts—as opposed to the legal theory— underlying the claim. Where, as here, there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim" (Williams v Nassau County Med. Ctr., 6 NY3d at 537 [emphasis added]; see also...