Wendal v. Memorial Hospital of Greene County

127 A.D.2d 592, 511 N.Y.S.2d 649, 1987 N.Y. App. Div. LEXIS 43060

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 2, 1987
• Status: Published

Opinion

In a wrongful death action, the defendant Memorial Hospital of Greene County appeals from an order of the Supreme Court, Suffolk County (Luciano, J.), dated July 26, 1985, which denied its motion to dismiss the plaintiff’s complaint as against it for failure to serve a notice of claim pursuant to General Municipal Law § 50-e and which granted the plaintiff’s application for leave to file a late notice of claim.

Ordered that the order is affirmed, without costs or disbursements.

Special Term, in a proper exercise of discretion, permitted the plaintiff to file a late notice of claim pursuant to General Municipal Law § 50-e (5). The application was made within one year and 90 days of the accrual of the action (see, General Municipal Law § 50-i).

The failure of the plaintiff’s attorney to discover the correct status of the defendant at some earlier point in the proceedings should not act as a bar to the plaintiff’s suit. As soon as the error was discovered, the plaintiff’s attorney acted promptly. The defendant does not claim substantial prejudice, nor can it, for the event underlying the claim is documented by the defendant’s own records. Niehoff, J. P., Rubin, Lawrence and Sullivan, JJ., concur.