Plaza v. N.Y. Health & Hospitals Corp.

• Decision Date: 17 July 2012
• Citation: 97 A.D.3d 466,949 N.Y.S.2d 25,2012 N.Y. Slip Op. 05598
• Parties: Mia PLAZA, an Infant by Her Mother and Natural Guardian, Claribel RODRIGUEZ, Plaintiff–Appellant, v. NEW YORK HEALTH AND HOSPITALS CORPORATION (JACOBI MEDICAL CENTER), Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 466

949 N.Y.S.2d 25

2012 N.Y. Slip Op. 05598

Mia PLAZA, an Infant by Her Mother and Natural Guardian, Claribel RODRIGUEZ, Plaintiff–Appellant,

v.NEW YORK HEALTH AND HOSPITALS CORPORATION (JACOBI MEDICAL CENTER), Defendant–Respondent.

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

July 17, 2012.

Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondent.

TOM, J.P., FRIEDMAN, SWEENY, MOSKOWITZ, DeGRASSE, JJ.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered March 11, 2010, which granted defendant New York Health and Hospital Corporation's (HHC) motion for summary judgment dismissing the complaint, affirmed, without costs.

We affirm dismissal of the complaint, but for reasons other than those stated by the motion court. Specifically, we find that the complaint should have been dismissed because plaintiff failed to comply with the 90–day time period specified in General Municipal Law § 50–e, which is a condition precedent to maintaining an action against HHC ( see Plummer v. New York City Health & Hosps. Corp., 98 N.Y.2d 263, 267, 746 N.Y.S.2d 647, 774 N.E.2d 712 [2002] ).

Initially, we note that plaintiff first served a notice of claim without leave of court on June 5, 2006. Plaintiff's mother began her prenatal care with defendant in late 2002, and the infant was born on July 11, 2003. Plaintiff's bill of particulars states that the acts of alleged malpractice occurred between November 27, 2002 and July 16, 2003. Therefore, the time to file a notice of claim without leave of court expired on October 16, 2003, approximately two years and eight months prior to plaintiff's attempted filing of a late notice of claim.

On April 29, 2009, defendant moved for summary judgment dismissing the complaint. That motion raised, for the first time, plaintiff's failure to file a timely notice of claim. On August 17, 2009, plaintiff filed opposition to the motion and cross-moved for an order deeming the notice of claim timely served nunc pro tunc or, in the alternative, granting leave to serve a late notice of claim.

We have repeatedly held that service of a late notice of claim without leave of court is a nullity ( see e.g. McGarty v. City of New York, 44 A.D.3d 447, 448, 843 N.Y.S.2d 287 [2007];Croce v. City of New York, 69 A.D.3d 488, 893 N.Y.S.2d 48 [2010] ). Moreover, the failure to seek a court order excusing such lateness within one year and 90 days after accrual of the claim requires dismissal of the action ( id.). Therefore, the complaint should have been dismissed on this ground alone.

Contrary to the position of the dissent, however, plaintiff has failed to meet the basic criteria that would warrant the exercise of this Court's discretion to permit her to file a late notice of claim. General Municipal Law § 50–e(5) gives a court the discretion to grant leave to serve a late notice of claim after considering “whether the public corporation or its attorneys ... acquired actual knowledge of the essential facts constituting a claim within the time specified in subdivision (1) or within a reasonable time thereafter” ( see Caminero v. New York City Health & Hosps. Corp. [Bronx Mun. Hosp. Ctr.], 21 A.D.3d 330, 332, 800 N.Y.S.2d 173 [2005] ).

“In deciding whether a notice of claim should be deemed timely served under General Municipal Law § 50–e(5), the key factors considered are ‘whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense. Moreover, the presence or absence of any one factor is not determinative’ ” (Velazquez v. City of N.Y. Health and Hosps. Corp. [Jacobi Med. Ctr.], 69 A.D.3d 441, 442, 894 N.Y.S.2d 15 [2010],lv. denied,15 N.Y.3d 711, 2010 WL 4065634 [2010] quoting Matter of Dubowy v. City of New York, 305 A.D.2d 320, 321, 759 N.Y.S.2d 325 [2003] ).

As discussed below, in applying these criteria to this case, we find that plaintiff failed to provide a reasonable excuse for the delay and to establish that HHC had actual notice of the claim.

While we agree with the dissent that the statute is remedial in nature and should be liberally construed ( Camacho v. City of New York, 187 A.D.2d 262, 263, 589 N.Y.S.2d 421 [1992] ), such construction should not be taken as carte blanche to file a late notice of claim years after the incident which gave rise to the claim occurred. Such an interpretation would frustrate the purpose of the statute which is to protect the municipality from unfounded claims and ensure that it has an adequate opportunity to explore the claim's merits while information is still readily available (Matter of Porcaro v. City of New York, 20 A.D.3d 357, 357–358, 799 N.Y.S.2d 450 [2005] ).

Reasonable Excuse

As the dissent acknowledges, plaintiff failed to offer a reasonable excuse for the delay in moving for leave to serve a late notice of claim. The record shows that the delay is attributable to the fact that plaintiff's mother, while on notice of the infant's condition, lacked an understanding of the legal basis for the claim, and that she retained her current counsel in July 2005, almost two years after the infant's birth. However, ignorance of the law is not a reasonable excuse ( see Rodriguez v. New York City Health and Hosps. Corp. [Jacobi Med. Ctr.], 78 A.D.3d 538, 538–39, 911 N.Y.S.2d 347 [2010],lv. denied17 N.Y.3d 718, 2011 WL 5839654 [2011];Harris v. City of New York, 297 A.D.2d 473, 473, 747 N.Y.S.2d 4 [2002],lv. denied99 N.Y.2d 503, 753 N.Y.S.2d 806, 783 N.E.2d 896 [2002] ). Significantly, it must be noted that counsel waited almost a year after being retained to file a notice of claim, albeit without leave of the court. Although, as the dissent points out, this factor, standing alone, does not require denial of the cross motion, it does not stand in plaintiff's favor.

Actual Knowledge of the Essential Facts

Actual knowledge of the essential facts is an important factor in determining whether to grant an extension and should be accorded great weight (Kaur v. New York City Health & Hosps. Corp., 82 A.D.3d 891, 892, 918 N.Y.S.2d 545 [2011] ).

Contrary to the dissent's argument, plaintiff failed to demonstrate that defendant acquired actual notice of the facts constituting the claim from the medical record, as “the record alone did not put defendant on notice of alleged malpractice that might years later give rise to another condition” ( Velazquez, 69 A.D.3d at 442, 894 N.Y.S.2d 15;Rodriguez, 78 A.D.3d at 539, 911 N.Y.S.2d 347).

Here, although plaintiff's experts seize on entries discussing “fetal distress” and view the delivery and the natal intensive care unit records with the hindsight of later developed medical conditions, they fail to address the simple fact that, from all appearances, the infant was a well baby post-delivery. Her Apgar scores were 8 at one minute, and 9 at five minutes, with a perfect score being 10, and a normal range of 8–10. While the infant did experience respiratory distress when her oxygen saturation level decreased to 85%, after staff administered oxygen, the levels improved in short order to 92% and, afterwards to 100%. Moreover, the fetal heart rate fluctuations were not so dramatic as to give an indication that something was amiss. While in natal ICU to rule out sepsis, the infant was described as “alert, responsive, normal muscle tone, Moro reflex symmetric, strong suck, strong cry” and the chart noted that “respiratory distress subsided.” At discharge, the infant was again described as alert and responsive, strong grasp and demonstrated no apparent issues. In fact, during well-baby checkups in July and September 2003, the baby was doing well and meeting developmental milestones. The records from those visits noted a genetic issue that was corrected and was unrelated to her later problems.

Simply put, despite plaintiff's experts' attempts to read into the records issues that developed beyond the time frame set forth in plaintiff's bill of particulars, the records do not, on their face, demonstrate a failure to provide proper prenatal and labor care, or that defendant departed from good and accepted medical practice during delivery ( see Perez v. New York City Health & Hosps. Corp., 81 A.D.3d 448, 915 N.Y.S.2d 562 [2011];Matter of Kelley v. New York City Health & Hosps. Corp., 76 A.D.3d 824, 828, 907 N.Y.S.2d 11 [2010] ).

“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.” ( Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ).

Although the dissent argues that Williams is distinguishable from the present case, its facts are quite similar. There, plaintiff claimed his epilepsy and developmental difficulties were the result of malpractice committed by doctors and staff during his birth in September 1993 ( id. at 535–536, 814 N.Y.S.2d 580, 847 N.E.2d 1154). Ten years later, on September 5, 2003, plaintiff's counsel sent defendants a notice of claim ( id. at 536, 814 N.Y.S.2d 580, 847 N.E.2d 1154). There, as here, there were difficulties encountered during the delivery. The Apgar scores of the infants in both cases were identical ( see id.). The experts in both cases claimed that the records, on their face, gave the defendants actual notice of the essential facts constituting malpractice. Also of note is the fact that subsequent medical examinations did not reveal any abnormalities until years after the incidents giving rise to the...