Montero v. New York City Health & Hospitals Corp.

17 A.D.3d 550, 793 N.Y.S.2d 160, 2005 N.Y. App. Div. LEXIS 4138

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 18, 2005
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the defendant New York City Health & Hospitals Corporation appeals from an order of the Supreme Court, Queens County (Flug, J.), dated November 12, 2003, which granted the plaintiffs motion for leave to serve a late notice of claim against it.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the motion for leave to serve a late notice of claim. The New York City Health & Hospitals Corporation (hereinafter the HHC) was in possession of the medical records and thus had actual notice of the underlying facts of the claim (see Matter of Hendershot v Westchester Med. Ctr., 8 AD3d 381, 382 [2004]; Medley v Cichon, 305 AD2d 643 [2003]). Under the circumstances of this case, the HHC was not unduly prejudiced by the delay (see Medley v Cichon, supra). Finally, where, as here, there was actual notice and an absence of prejudice, the lack of a reasonable excuse for failing to timely serve a notice of claim will not bar the granting of leave to serve a late notice of claim (see Matter of Hendershot v Westchester Med. Ctr., supra; Medley v Cichon, supra at 645). Florio, J.P., Goldstein, Crane and Lifson, JJ., concur.