Randolph v. Westchester Med. Ctr.

• Court: New York Supreme Court — Appellate Division
• Citation: Randolph v. Westchester Med. Ctr., 2014 NY Slip Op 7999, 996 N.Y.S.2d 703, 122 A.D.3d 822 (N.Y. App. Div. 2014)
• Decision Date: 19 November 2014
• Docket Number: 2011-09785
• Parties: David RANDOLPH, appellant, v. WESTCHESTER MEDICAL CENTER, respondent.

122 A.D.3d 822

996 N.Y.S.2d 703

2014 N.Y. Slip Op. 07999

David RANDOLPH, appellant

v.WESTCHESTER MEDICAL CENTER, respondent.

2011-09785

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

Nov. 19, 2014.

David Randolph, White Plains, N.Y., for appellant pro se.

Wilson, Bave, Conboy, Cozza & Couzens, P.C., White Plains, N.Y. (Claudine L. Weis of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

Opinion

In an action to recover damages for dental malpractice and lack of informed consent, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Walker, J.), entered July 1, 2011, as denied that branch of his motion which was, in effect, for leave to serve a late notice of claim.

ORDERED that the order is affirmed insofar as appealed from, with costs.

“In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider whether (1) the public corporation or its attorney or insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the claimant made an excusable error concerning the identity of the public corporation against which the claim should be asserted, (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim (see General Municipal Law § 50–e [5 ] ), and (4) the delay would substantially prejudice the public corporation in its defense on the merits” (Platt v. New York City Health & Hosps. Corp., 105 A.D.3d 1026, 1027, 964 N.Y.S.2d 223 ; see Nurena v. Westchester County, 120 A.D.3d 781, 781, 992 N.Y.S.2d 86 ; Matter of Mitchell v. Town of Greenburgh, 96 A.D.3d 852, 852, 946 N.Y.S.2d 220 ). “While the presence or the absence of any one of the factors is not necessarily determinative, whether the municipality had actual knowledge of the essential facts constituting the claim is of great importance” (Matter of Iacone v. Town of Hempstead, 82 A.D.3d 888, 888–889, 918 N.Y.S.2d 202 [citations omitted]; see Matter of Gonzalez v. City of New York, 60 A.D.3d 1058, 1059, 876 N.Y.S.2d 139 ; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147, 851 N.Y.S.2d 218 ). The determination to grant leave to serve a late notice of claim lies within the sound discretion of the Supreme Court (see Hasmath v. Cameb, 5 A.D.3d 438, 439, 773 N.Y.S.2d 121 ).

Here, in support of his motion, the plaintiff failed to proffer a reasonable excuse for his failure to serve a timely notice of claim. “[A] claima...