Velazquez v. City of New York Health and Hospitals Corporation (Jacobi Medcal Center)

• Decision Date: 12 January 2010
• Docket Number: 16376/07,1427N.
• Parties: ZACHARY VELAZQUEZ, an Infant, by His Mother and Natural Guardian, EVELYN SEGARRA, et al., Respondents, v. CITY OF NEW YORK HEALTH AND HOSPITALS CORPORATION (JACOBI MEDICAL CENTER), Appellant.
• Court: New York Supreme Court — Appellate Division

69 A.D.3d 441

894 N.Y.S.2d 15

2010 NY Slip Op 195

ZACHARY VELAZQUEZ, an Infant, by His Mother and Natural Guardian, EVELYN SEGARRA, et al., Respondents, v. CITY OF NEW YORK HEALTH AND HOSPITALS CORPORATION (JACOBI MEDICAL CENTER), Appellant.

1427N.

16376/07

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

Decided January 12, 2010.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered March 26, 2008, which granted plaintiffs' motion for

an order deeming their notice of claim timely served, unanimously reversed, on the law, and the facts, and in the exercise of discretion, without costs, and the motion denied.

The infant plaintiff was born at Jacobi Medical Center in March 1998, weighing only one pound, nine ounces. He remained in the neonatal intensive care unit until his discharge on July 6, 1998. By the age of four, he was diagnosed with spastic cerebral palsy and asthma. A notice of claim dated October 11, 2006 notified defendant of plaintiffs' claims for negligence, medical malpractice and failure to obtain informed consent in connection with the infant's neonatal care and alleged that injury was sustained as the result of birth trauma. The instant motion dated August 30, 2007 seeks an order deeming the notice of claim served to be timely or, in the alternative, granting leave to serve a late notice of claim.

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" (Matter of Dubowy v City of New York, 305 AD2d 320, 321 [2003] [citations omitted]). The failure to set forth a reasonable excuse is not, by itself, fatal to the application (see Matter of Ansong v City of New York, 308 AD2d 333, 334 [2003]).

While analysis of the medical record will be required to assess the propriety of the treatment rendered by defendant, plaintiffs have failed to demonstrate that the record alone suffices to put defendant on notice of the alleged malpractice (cf. Rechenberger v Nassau County Med. Ctr., 112 AD2d 150, 153 [1985]). That the infant experienced complications due to premature birth does not serve to alert defendant that, years later, he would develop cerebral palsy and other conditions now alleged to be the result of negligence in his perinatal care and treatment. "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 NY3d 531, 537 [2006]; see also ...