Mandia v. County of Westchester

162 A.D.2d 217, 556 N.Y.S.2d 868, 1990 N.Y. App. Div. LEXIS 7267

Opinion

Order, Supreme Court, Westchester County (Lucille Polk Buell, J.), entered on or about September 29, 1988, which denied petitioners’ application to file a late notice of claim, unanimously affirmed, without costs.

The IAS court properly exercised its discretion in denying petitioners’ application to file a late notice of claim on the grounds that respondent Westchester County Medical Center (the Hospital) would be prejudiced in its defense on the malpractice claim by petitioners’ eight-month delay in serving notice of the claim, (see, General Municipal Law § 50-e [1] [a].)

Petitioners failed to submit a medical affidavit by a physician or otherwise to substantiate their claim that the delay in service was due to physical incapacity (see, Fox v City of New York, 91 AD2d 624, 625). Additionally, the incident report prepared by the Hospital’s staff was devoid of any fact(s) which could be construed as providing the Hospital with actual knowledge of a potential malpractice claim (see, General Municipal Law § 50-e [5]). Concur—Murphy, P. J., Carro, Milonas, Asch and Kassal, JJ.