Askew v. Horton Memorial Hospital

266 A.D.2d 248, 698 N.Y.S.2d 506, 1999 N.Y. App. Div. LEXIS 11306

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1999
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the plaintiff appeals (1) from so much of an order of the Supreme Court, Orange County (Murphy, J.), dated June 16, 1998, as denied her motion for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5), and (2), as limited by her brief, from so much of an order of the same court, dated October 2, 1998, as, upon reargument, adhered to the original determination.

Ordered that the appeal from the order dated June 16, 1998, is dismissed, as that order was superseded by the order dated October 2, 1998, made upon reargument; and it is further,

Ordered that the order dated October 2, 1998, is affirmed insofar as appealed from; and it is further,

Ordered that the respondent is awarded one bill of costs.

The Supreme Court did not improvidently exercise its discretion in denying the plaintiffs motion for leave to serve a late notice of claim. The plaintiff failed to demonstrate a reasonable excuse for the delay. Further, the respondent did not acquire actual knowledge of the essential facts constituting the claim within 90 days or a reasonable time thereafter and would be substantially prejudiced in maintaining a defense (see, Matter of Sverdlin v City of New York, 229 AD2d 544; Matter of Morehead v Westchester County, 222 AD2d 507). O’Brien, J. P., Santucci, Thompson and Altman, JJ., concur.