Perkins v. New York City Health and Hospitals Corp.
| Decision Date | 08 November 1990 |
| Parties | William PERKINS, Petitioner-Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before CARRO, J.P., and ROSENBERGER, KASSAL, ELLERIN and WALLACH, JJ.
Order, Supreme Court, Bronx County (Lewis R. Friedman, J.), entered August 30, 1989, which upon renewal, denied plaintiff's motion for leave to file a late notice of claim nunc pro tunc, unanimously affirmed, without costs.
Plaintiff sustained a laceration on his left hand when he was assaulted on April 2, 1988 and sought medical treatment at the emergency room of Bronx Municipal Hospital Center. After his wound was sutured, plaintiff returned to the hospital on April 4th, 7th, 11th and 14th for treatment as an outpatient. Since plaintiff was still experiencing pain in his hand, he sought further treatment at the Brooklyn HIP Center and then, in November of 1988, from a hand specialist who recommended surgery. Plaintiff contends that he would not have needed the surgery which was performed on November 29, 1988, but for Bronx Municipal Hospital Center's failure to adequately diagnose and treat his injury.
On May 1, 1989, plaintiff moved to file a late notice of claim nunc pro tunc. In denying his motion with leave to renew, the Supreme Court found that plaintiff had failed to submit an affidavit of a party with actual knowledge of the circumstances in support of his motion or an affidavit by an expert as to why the condition was not discovered in time to file a notice of claim within the period allowed by statute. Plaintiff's motion to renew his application was also denied on the basis of his failure to explain his lateness in filing the notice of claim.
Plaintiff was afforded two opportunities to present a satisfactory explanation for the more than one year delay in filing a notice of claim. Since he has yet to explain his lateness, the Supreme Court properly exercised its discretion in denying his application (General Municipal Law § 50-e; Bullard v. City of New York, 118 A.D.2d 447, 499 N.Y.S.2d 880 (Kassal, J. concurring); Rodriguez v. City of New York, 86 A.D.2d 533, 446 N.Y.S.2d 50, app. dsmd., 58 N.Y.2d 899, 460 N.Y.S.2d 531, 447 N.E.2d 79). In this case, defendant's possession of the hospital records was insufficient to provide it with actual notice of the essential facts constituting the claim (Matter of Andersen v. Nassau...
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Smith v. City of N.Y.
...denial of the application (Aviles at 238), as does the wholesale failure to explain the delay (Perkins v. New York City Health and Hospitals Corp., 167 A.D.2d 150, 151 [1st Dept 1990] ). Law office failure has been deemed an unreasonable excuse for failure to timely file a notice of claim (......
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Caruso v. County of Westchester
...322; Matter of Aviles v. New York City Health and Hosps. Corp., 172 A.D.2d 237, 568 N.Y.S.2d 76; Perkins v. New York City Health and Hosps. Corp., 167 A.D.2d 150, 561 N.Y.S.2d 230; Bailey v. City of New York, 159 A.D.2d 280, 552 N.Y.S.2d 283). Under the circumstances, the petitioner's appli......
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Thompson v. New York City Health and Hospitals Corp.
...construed as providing defendants with actual knowledge of the essential facts constituting the claim. (Perkins v. New York City Health & Hosps. Corp., 167 A.D.2d 150, 561 N.Y.S.2d 230; Mandia v. County of Westchester, 162 A.D.2d 217, 556 N.Y.S.2d 868; In re Aviles v. NYCHHC, 172 A.D.2d 237......
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Aviles v. New York City Health and Hospitals Corp.
...its discretion in denying claimant's application for leave to serve a late notice of claim. Our recent decision in Matter of Perkins, 167 A.D.2d 150, 561 N.Y.S.2d 230 is dispositive of the issues now presented. In Perkins, which was similarly a malpractice case, we adhered to the propositio......