Lisandro v. New York City Health & Hospitals Corp.

Appellate Division of the Supreme Court of New York

Lisandro v. New York City Health & Hospitals Corp.

50 A.D.3d 304, 855 N.Y.S.2d 74

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 3, 2008

StatusPublished

Cited by10 cases

This text of 50 A.D.3d 304 (Lisandro v. New York City Health & Hospitals Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lisandro v. New York City Health & Hospitals Corp., 50 A.D.3d 304, 855 N.Y.S.2d 74 (N.Y. Ct. App. 2008).

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Opinion

Order, Supreme Court, New York County (Charles J. Tejada, J.), entered October 7, 2005, which, insofar as appealed from as limited by the briefs, granted infant plaintiffs motion to file a late notice of claim, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in allowing the infant plaintiff to file a late notice of claim (General Municipal Law § 50-e [5]). The lack of a causative nexus between the delay and plaintiffs infancy is not fatal by itself (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 538 [2006]). Here, the record establishes that defendant hospital’s possession of the available medical records constituted actual notice of the pertinent facts, and plaintiff submitted affirmations from physicians establishing that the available medical records, on their face, evinced that defendants failed to provide the infant plaintiff with proper care (see Bayo v Burnside Mews Assoc., 45 AD3d 495 [2007]). Furthermore, defendants’ claim that the delay would be prejudicial because of the inability to locate witnesses was insufficient (see Moody v New York City Health & Hosps. Corp. [Renaissance Health Care Network], 29 AD3d 395 [2006]).

[305]*305At this juncture, we need not consider the implications of defendant hospital’s destruction or loss of a portion of the pertinent medical records. Concur—Lippman, EJ., Tom, Buckley and Moskowitz, JJ.

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Order, Supreme Court, New York County (Charles J. Tejada, J.), entered October 7, 2005, which, insofar as appealed from as limited by the briefs, granted infant plaintiffs motion to file a late notice of claim, unanimously affirmed, without costs.

The court exercised its discretion in a provident manner in allowing the infant plaintiff to file a late notice of claim (General Municipal Law § 50-e [5]). The lack of a causative nexus between the delay and plaintiffs infancy is not fatal by itself (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 538 [2006]). Here, the record establishes that defendant hospital’s possession of the available medical records constituted actual notice of the pertinent facts, and plaintiff submitted affirmations from physicians establishing that the available medical records, on their face, evinced that defendants failed to provide the infant plaintiff with proper care (see Bayo v Burnside Mews Assoc., 45 AD3d 495 [2007]). Furthermore, defendants’ claim that the delay would be prejudicial because of the inability to locate witnesses was insufficient (see Moody v New York City Health & Hosps. Corp. [Renaissance Health Care Network], 29 AD3d 395 [2006]).

[305]*305At this juncture, we need not consider the implications of defendant hospital’s destruction or loss of a portion of the pertinent medical records. Concur—Lippman, EJ., Tom, Buckley and Moskowitz, JJ.

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Bluebook (online)

50 A.D.3d 304, 855 N.Y.S.2d 74, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lisandro-v-new-york-city-health-hospitals-corp-nyappdiv-2008.

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