Rodriguez v. City of New York

Citation86 A.D.2d 533,446 N.Y.S.2d 50
PartiesAngel RODRIGUEZ et al., Plaintiffs-Appellants, v. CITY OF NEW YORK, et al., Defendants-Respondents.
Decision Date14 January 1982
CourtNew York Supreme Court Appellate Division

H. M. Grubel, Freeport, for plaintiffs-appellants.

Carol Polis, New York City, for defendants-respondents.

Before MURPHY, P. J., and BIRNS, SULLIVAN, LUPIANO and BLOOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County, entered April 29, 1981, denying plaintiff's motion for leave to file a late notice of claim, affirmed, without costs.

The chronology of events is fairly stated in the dissent. However, in order to obtain leave to serve a late notice of claim under GML § 50-e(5), a party must give a satisfactory explanation for his delay. (Pierce v. New York City Housing Authority, 43 A.D.2d 842, 351 N.Y.S.2d 171.) Assuming that the plaintiff did have some "contact" with the hospital in February of 1980, he fails to give any explanation as to why he waited until February of 1981 before seeking to make a claim. While the plaintiff maintains that the injury to his ankle was very serious, he does not even state that any medical attention was sought during that one-year period. Upon the superficial affidavit submitted by the plaintiff, this Court is left to speculate as to exactly what the plaintiff did and to whom he spoke during that period of delay. The plaintiff's silence on this point is totally unsatisfactory.

Moreover, there is no indication in this record to demonstrate that defendants' agents made any statement that discouraged plaintiff from filing a timely notice of claim and bringing a timely action.

Likewise, there is no evidence in the record to conclude that the defendants have not been necessarily prejudiced in their investigation of this case from the plaintiff's unexplained delay of one year in seeking to make claim.

All concur except BIRNS, J., who dissents in a memorandum as follows:

I would reverse and grant plaintiffs' motion for leave to file a belated notice of claim.

Plaintiffs seek to pursue a claim based on the following alleged facts:

On May 17, 1979, Angel Rodriguez ("plaintiff") was admitted to Bronx Municipal Hospital Center for treatment of a fractured ankle. By virtue of the negligent care rendered at the hospital, it is claimed the fracture did not heal properly. He was released from the hospital on May 30, 1979 and thereafter was treated as an outpatient. Plaintiff was readmitted to the hospital on October 3, 1979 for additional treatment to the ankle, including surgery scheduled for the next day. However, such surgery was cancelled. Plaintiff was merely told he needed physical therapy and he would be contacted by the hospital to set up an appointment. In the absence of any further communication from the hospital, plaintiff initiated an effort to schedule an appointment for physical therapy. He was repeatedly told to wait for the hospital to get in touch with him. With the assistance of a patient advocate, plaintiff finally scheduled an appointment for physical therapy at the hospital on November 27, 1979, which he attended. A further session was arranged but cancelled by the hospital. Plaintiff again sought outpatient treatment at the hospital but was rebuffed each time with the message that the hospital would call him in. Plaintiff's last communication with the hospital was in January or February, 1980. His expectation of treatment by the hospital may well have extended beyond this time as respondents never acted to discharge him from their care.

Plaintiff, who does not understand or speak English with facility, and who was partially disabled due to the...

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