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

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.