Hernandez v. County of Suffolk

90 A.D.3d 1049, 934 N.Y.2d 863

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2011
• Status: Published

Opinion

The Supreme Court did not improvidently exercise its discretion in denying the petition for leave to serve a late notice of claim for the alleged medical malpractice. The mere fact that the respondents were in possession of the infant’s medical records did not, without more, establish that the respondents had actual knowledge of a potential injury. “Where, as here, there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim” (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; see Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832 [2008]; Bucknor v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811 [2007]). Furthermore, the petitioner failed to present a satisfactory excuse for the delay in seeking leave to serve a late notice of claim (see Bucknor v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811 [2007]; Matter of Pico v City of New York, 8 AD3d 287, 288 [2004]; Matter of Lodati v City of New York, 303 AD2d 406, 407 [2003]). Finally, the petitioner failed to demonstrate that the respondents had not been prejudiced by the delay (see Casias v City of New York, 39 AD3d 681 [2007]). Skelos, J.E, Angiolillo, Belen, Lott and Roman, JJ., concur.