De La Cruz v. New York City Health & Hospitals Corp.

13 A.D.3d 130, 786 N.Y.S.2d 52, 2004 N.Y. App. Div. LEXIS 15027

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 9, 2004
• Status: Published

Opinion

Order, Supreme Court, New York County (Eileen Bransten, J.), entered on or about August 5, 2004, which, in an action for medical malpractice involving prenatal, labor and delivery services rendered by defendant hospital to plaintiff infant’s mother, insofar as appealed from, granted plaintiffs motion to deem her notice of claim timely served, unanimously affirmed, without costs.

Plaintiff should not be penalized for her mother’s six-year delay in seeking legal counsel and the ensuing four-year delay of her attorney in seeking what is, in effect, leave to serve a late notice of claim, where defendant has been in possession of plaintiffs medical records since the time of the alleged acts of malpractice, and does not show how it has been prejudiced by these delays (see Matter of McMillan v City of New York, 279 AD2d 280 [2001]). We note that plaintiffs attorney was retained in June 2000, some six years after plaintiffs birth; plaintiffs attorney served a late notice of claim without court leave in July 2000; a General Municipal Law § 50-h hearing was conducted in December 2000; the instant action was commenced in March 2002; defendant answered in April 2002; a note of issue was filed in December 2003; disclosure was conducted after the filing of the note of issue; and the instant motion was made in June 2004, just prior to the expiration of the statute of limitations. Concur—Nardelli, J.P., Mazzarelli, Sullivan, Friedman and Gonzalez, JJ.