Rodriguez v. New York City Health & Hospitals Corp.

270 A.D.2d 110, 704 N.Y.S.2d 253, 2000 N.Y. App. Div. LEXIS 2845

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 16, 2000
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 2, 1998, which, in an action for medical malpractice, insofar as appealed from, granted infant plaintiffs motion to deem her notice of claim timely filed, unanimously affirmed, without costs.

Defendants, who made a record of plaintiff’s medical condition during her hospital stay from July 13 to September 3, 1991, have known all along the essential facts constituting plaintiffs claim, namely, that she was suffering from herpes encephalitis that was not treated with an anti-viral agent until July 31, 1991, and that she suffered severe brain damage between July 13 and July 31, 1991. Such knowledge, along with plaintiffs infancy, justified relief excusing the late service of a notice of claim (see, Spaulding v New York City Health & Hosps. Corp., 210 AD2d 128; Matter of Tomlinson v New York City Health & Hosps. Corp., 190 AD2d 806; cf., Henry v City of New York, 94 NY2d 275). Concur — Sullivan, P. J., Rosenberger, Mazzarelli, Buckley and Friedman, JJ.