Turner v. Roswell Park Cancer Inst. Corp.

• Citation: 214 A.D.3d 1376,185 N.Y.S.3d 445
• Docket Number: 952,CA 21-01651
• Decision Date: 17 March 2023
• Parties: Ann Marie TURNER, Claimant-Appellant-Respondent, v. ROSWELL PARK CANCER INSTITUTE CORPORATION, Defendant-Respondent-Appellant, et al., Defendant. (Claim No. 136410.)
• Court: New York Supreme Court — Appellate Division

214 A.D.3d 1376
185 N.Y.S.3d 445

Ann Marie TURNER, Claimant-Appellant-Respondent,
v.
ROSWELL PARK CANCER INSTITUTE CORPORATION, Defendant-Respondent-Appellant, et al., Defendant.

(Claim No. 136410.)

952
CA 21-01651

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

Entered: March 17, 2023

KEVIN T. STOCKER, TONAWANDA, FOR CLAIMANT-APPELLANT-RESPONDENT.

CONNORS LLP, BUFFALO (SETH A. HISER OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.

PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.

MEMORANDUM AND ORDER

214 A.D.3d 1376

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In February 2020, claimant underwent a thyroidectomy procedure at defendant Roswell Park Cancer Institute Corporation (Roswell Park) to remove a cancerous tumor from her thyroid. During the procedure, the doctor performing the surgery severed claimant's recurrent laryngeal nerve while attempting to dissect the tumor, which had become stuck to the nerve. Although the doctor attempted to repair the nerve during the surgery, the damage to the nerve was ultimately determined to be permanent, which manifested in a host of symptoms presented by claimant, including, inter alia,

214 A.D.3d 1377

trouble eating, shortness of breath, and difficulty raising her voice. In May 2021, claimant sought leave, pursuant to

185 N.Y.S.3d 448

General Municipal Law § 50-e (5), to serve a late notice of claim alleging, inter alia, that the injuries sustained as a result of the severed nerve were the result of medical malpractice and that she lacked informed consent with respect to the thyroidectomy procedure. Claimant appeals from that part of an order that denied her application for leave to serve a late notice of claim on Roswell Park with respect to the lack of informed consent cause of action. Roswell Park cross-appeals from that part of the same order granting claimant's application for leave to serve a late notice of claim on Roswell Park with respect to the medical malpractice cause of action. We affirm.

"Pursuant to General Municipal Law § 50-e (1) (a), a party seeking to sue a public corporation ... must serve a notice of claim on the prospective defendant ‘within ninety days after the claim arises’ " ( Matter of Newcomb v. Middle Country Cent. Sch. Dist. , 28 N.Y.3d 455, 460, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016], rearg denied 29 N.Y.3d 963, 51 N.Y.S.3d 496, 73 N.E.3d 853 [2017] ). " General Municipal Law § 50-e (5) permits a court, in its discretion, to [grant leave] extend[ing] the time for a [claimant] to serve a notice of claim" ( id. at 460-461, 45 N.Y.S.3d 895, 68 N.E.3d 714 ; see Matter of Dusch v. Erie County Med. Ctr. , 184 A.D.3d 1168, 1169, 125 N.Y.S.3d 511 [4th Dept. 2020] ). "The decision whether to grant such leave ‘compels consideration of all relevant facts and circumstances,’ including the ‘nonexhaustive list of factors’ in section 50-e (5)" ( Dalton v. Akron Cent. Schools , 107 A.D.3d 1517, 1518, 966 N.Y.S.2d 787 [4th Dept. 2013], affd 22 N.Y.3d 1000, 979 N.Y.S.2d 559, 2 N.E.3d 928 [2013], quoting Williams v. Nassau County Med. Ctr. , 6 N.Y.3d 531, 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ). " ‘It is well settled that key factors for the court to consider in determining an application for leave to serve a late notice of claim are whether the claimant has demonstrated a reasonable excuse for the delay, whether the [public corporation] acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and whether the delay would substantially prejudice the [public corporation] in maintaining a defense on the merits’ " ( Matter of Turlington v. Brockport Cent. Sch. Dist. , 143 A.D.3d 1247, 1248, 39 N.Y.S.3d 338 [4th Dept. 2016] ). " ‘[T]he presence or absence of any one of the numerous relevant factors the court must consider is not determinative’ ..., and ‘[t]he court is vested with broad discretion to grant or deny the application’ " ( Dalton , 107 A.D.3d at 1518, 966 N.Y.S.2d 787 ). "Absent a clear abuse of the court's broad discretion, the determination of an application for leave to serve a late notice of claim will not be disturbed" ( id. [internal quotation marks omitted]).

As a preliminary...