Thompson v. New York City Health and Hospitals Corp.

• Decision Date: 30 April 1991
• Citation: 172 A.D.2d 433,569 N.Y.S.2d 10
• Parties: Memorita THOMPSON, etc., Plaintiff-Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 10

569 N.Y.S.2d 10

172 A.D.2d 433

Memorita THOMPSON, etc., Plaintiff-Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Department.

April 30, 1991.

Before MURPHY, P.J., and MILONAS, ELLERIN, ROSS and RUBIN, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about August 28, 1990, which granted an application by plaintiff to serve a late notice of claim only to the extent of permitting a claim for wrongful death, unanimously affirmed, without costs.

The infant decedent, at the age of ten, died at defendant Lincoln Hospital on May 16, 1989, as a result of a spontaneous left intracerebral hemorrhage. Decedent's mother, plaintiff's administratrix, was allegedly too bereaved to contact an attorney until February 20, 1990. She was appointed administratrix on April 16, 1990, and finally moved for leave to serve a notice of claim by order to show cause dated July 30, 1990.

We agree that the application was properly granted only to the extent of permitting the claim for wrongful death, which was timely. As to the claims for loss of services and conscious pain and suffering, the conclusory assertions of plaintiff were insufficient to excuse the delay. Further, mere possession of the hospital records cannot be 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, 568 N.Y.S.2d 76).