Dunne v. Grello

180 A.D.2d 662

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 10, 1992
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the defendants Ann M. Ward, M.D., and the Martin Luther King, Jr. Community Health Center appeal from an order of the Supreme Court, Suffolk County (Gerard, J.), entered May 23, 1990, which, upon renewal and reargument, granted the plaintiff’s motion for leave to serve a late notice of claim and denied the defendants’ cross motion to dismiss the complaint.

Ordered that the order is affirmed, with costs.

" 'The rationale for requiring one who sues a public corporation to file a notice of claim within 90 days, is far less cogent and realistic in a medical malpractice case than in one for traditional negligence’ ” (Di Notte v County of Westchester, 115 AD2d 585, 586, quoting Dickey v County of Nassau, 65 AD2d 780, 781). Inasmuch as the defendants in this case had actual knowledge of the essential facts constituting the subject claim by virtue of their exclusive possession of the pertinent medical records, they were not in any way prejudiced by the plaintiff’s delay in serving a notice of claim (Di Notte v County of Westchester, 115 AD2d 585, supra). Mangano, P. J., Sullivan, O’Brien and Ritter, JJ., concur.