Strobel v. County of Lewis

147 A.D.2d 948, 537 N.Y.S.2d 707, 1989 N.Y. App. Div. LEXIS 1320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1989
• Status: Published

Opinion

— Order insofar as appealed from unanimously reversed on the law without costs and claimants’ motion granted. Memorandum: The court improvidently exercised its discretion in denying claimants’ application to extend the time to serve a notice of claim on their own behalf pursuant to General Municipal Law § 50-e (5). The hospital had actual notice of the facts constituting the claim by virtue of its possession of medical records pertaining to Mrs. Strobel’s care and treatment at the hospital (see, Kavanaugh v Memorial Hosp. & Nursing Home, 126 AD2d 930, 931). The operative facts of the treatment rendered by the hospital form the basis of its alleged negligence and would be contained in its own record (see, Rechenberger v Nassau County Med. Center, 112 AD2d 150, 152). The hospital has not shown any prejudice as a result of the delay and, given its actual notice, it is unlikely that any prejudice could be established (see, Matter of Beary v City of Rye, 44 NY2d 398, 412-413; Kavanaugh v Memorial Hosp. & Nursing Home, supra, at 931-932; Rechenberger v Nassau County Med. Center, supra). In our view, the reasons given by claimants for the delay in filing the notice of claim are sufficient on this record. (Appeal from order of Supreme Court, Lewis County, Lynch, J. — late notice of claim.) Present — Callahan, J. P., Doerr, Pine, Balio and Davis, JJ.