Bryant v. New York City Health & Hospitals Corp.

50 A.D.3d 265, 855 N.Y.S.2d 65

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 1, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Karen S. Smith, J.), entered July 24, 2007, which denied petitioner’s application for leave to file a late notice of claim, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in denying the application, where the delay in seeking leave to file a late notice of claim is not reasonably explained by petitioner’s allegation that medical personnel at respondent hospital assured her that infant petitioner would outgrow his health problems, and that the complications stemmed from his prematurity, where petitioner failed to file a notice of claim for over two years after seeking a new medical opinion. Although the lack of a reasonable excuse for the delay is not fatal by itself (see Harris v City of New York, 297 AD2d 473, 473-474 [2002], lv denied 99 NY2d 503 [2002]), petitioner has also failed to sufficiently demonstrate that respondent had actual notice of the pertinent facts underlying the claim within 90 days after the claim arose, or a reasonable time thereafter. The subject medical records alone, on their face, do not evince that respondent, by its acts or omissions, inflicted injuries on infant petitioner (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; see also Matter of Nieves v New York Health & Hosps. Corp., 34 AD3d 336 [2006]). Concur—Lippman, EJ., Tom, Williams and Acosta, JJ.