Losavio v. Stein

98 A.D.2d 742, 469 N.Y.S.2d 447, 1983 N.Y. App. Div. LEXIS 21056

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 12, 1983
• Status: Published

Opinion

— In a medical malpractice action to recover damages for personal injuries, etc., plaintiffs appeal (1) from an order of the Supreme Court, Westchester County (Beisheim, J.), dated March 25,1983, which denied their motion, inter alia, for leave to serve a late notice of claim and (2) as limited by their brief, from so much of a further order of the same court, dated June 10, 1983, as upon reargument, adhered to the original determination. Appeal from the order dated March 25, 1983, dismissed, without costs or disbursements. That order was superseded by the order dated June 10, 1983, granting reargument. Order dated June 10, 1983, affirmed insofar as appealed from, without costs or disbursements. Plaintiffs made their application for leave to serve a late notice of claim 10 months after the plaintiff patient’s discharge from the defendant Westchester County Medical Center (discharged March 20, 1982, motion returnable Jan. 31,1983). Their motion papers in support thereof did not contain a proposed notice of claim (see General Municipal Law, § 50-e, subd 7). Following denial of their application, plaintiffs moved for reargument. However, it was only in response to defendants’ opposition to that motion that plaintiffs finally submitted a proposed notice of claim. Absent sufficient excuse for such unreasonable delay, we conclude the Special Term did not abuse its discretion in denying the application (see General Municipal Law, § 50-e, subd 5; Fox v City of New York, 91 AD2d 624; Matter of Morris v County of Suffolk, 88 AD2d 956, affd 58 NY2d 767). We have considered plaintiffs’ remaining arguments and find them to be without merit. Mollen, P. J., Weinstein, Brown and Boyers, JJ., concur.