Opinion
No. 2007-09379.
December 2, 2008.
In an action, inter alia, to recover damages for medical malpractice, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Spinola, J.), entered June 20, 2007, as denied that branch of its motion which was to dismiss the complaint for failure to serve a timely notice of claim, and granted that branch of the plaintiff's cross motion which was for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e (5).
Lorna B. Goodman, County Attorney, Mineola, N.Y. (Karen Hutson of counsel), for appellant.
Fitzgerald Fitzgerald, P.C., Yonkers, N.Y. (John E. Fitzgerald, John M. Daly, Eugene S. R. Pagano, and Mitchell Gittin of counsel), for respondent.
Before: Mastro, J.P., Rivera, Fisher and Eng, JJ. concur.
Ordered that the order is affirmed insofar as appealed from, with costs.
In exercising its discretion in determining whether to permit late service of a notice of claim, a court must consider all relevant circumstances, including whether (1) the claimant is an infant, (2) the movant has demonstrated a reasonable excuse for the failure to serve a timely notice of claim, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits ( see General Municipal Law § 50-e; Matter of Leeds v Port Washington Union Free School Dist., 55 AD3d 734; Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135; Arias v New York City Health Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 831). The presence or absence of any one factor, including the absence of a reasonable excuse, is not necessarily fatal ( see Matter of Leeds v Port Washington Union Free School Dist., 55 AD3d 734; Matter of Chambers v Nassau County Health Care Corp., 50 AD3d 1134, 1135).
Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in granting that branch of the plaintiff's cross motion which was for leave to serve a late notice of claim.