Clark v. Roswell Park Cancer Institute Corp.

92 A.D.3d 1273, 938 N.Y.2d 483

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 2012
• Status: Published

Opinion

Memorandum: Contrary to defendant’s contention, the Court of Claims did not abuse its discretion in granting claimant’s application for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5). “The court is vested with broad discretion to grant or deny [such an] application” (Wetzel Servs. Corp. v Town of Amherst, 207 AD2d 965 [1994]). Although claimant failed to offer a reasonable excuse for his failure to serve the notice of claim within the 90-day statutory period (see § 50-e [1] [a]), that failure “ ‘is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [defendant]’ ” (Hale v Webster Cent. School Dist., 12 AD3d 1052, 1053 [2004]; see Matter of LaMay v County of Oswego, 49 AD3d 1351, 1352 [2008], lv denied 10 NY3d 715 [2008]). Here, defendant had actual notice of the facts constituting the claim by virtue of its possession of medical records pertaining to claimant’s care and treatment while he was a patient of defendant (see Kavanaugh v Memorial Hosp. & Nursing Home of Greene County, 126 AD2d 930, 931 [1987]). The treatment provided by defendant forms the basis of the alleged malpractice, and the relevant facts are contained in defendant’s own records (see Rechenberger v Nassau County Med. Ctr., 112 AD2d 150, 152 [1985]). Finally, we conclude that defendant was not prejudiced as a result of the delay in the filing of a notice of claim. Present — Scudder, P.J., Fahey, Garni, Sconiers and Martoche, JJ. [Prior Case History: 31 Misc 3d 578.]