Opinion
2013-05-14
In re Hakim QUICK, Jr., an infant by his mother and natural guardian, Theresa Wilson, Petitioner–Respondent, v. The NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Respondent–Appellant.
Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for appellant. Duffy & Duffy, Uniondale (James N. LiCalzi of counsel), for respondent.
Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for appellant. Duffy & Duffy, Uniondale (James N. LiCalzi of counsel), for respondent.
FRIEDMAN, J.P., RICHTER, FEINMAN, GISCHE, CLARK, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered April 25, 2011, which granted the petition for leave to serve a late notice of claim and deemed the notice of claim timely served nunc pro tunc, unanimously affirmed, without costs.
Supreme Court considered all of the relevant factors and providently exercised its discretion in granting the petition ( seeGeneral Municipal Law § 50–e[5] ). Petitioner's claim, which is premised upon faulty prenatal care, accrued when he was born on May 9, 2003 ( see LaBello v. Albany Med. Ctr. Hosp., 85 N.Y.2d 701, 704, 628 N.Y.S.2d 40, 651 N.E.2d 908 [1995] ) and, as an infant, he was entitled to have the statute of limitations tolled for 10 years (CPLR 208; see Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256, 263, 434 N.Y.S.2d 138, 414 N.E.2d 639 [1980];Contreras v. KBM Realty Corp., 66 A.D.3d 627, 628–629, 887 N.Y.S.2d 172 [2d Dept. 2009], lv. denied14 N.Y.3d 701, 2010 WL 456895 [2010] ). Accordingly, the petition, filed on or about September 28, 2010, was timely.
Petitioner also demonstrated that respondent had “actual knowledge of the essential facts constituting the claim” (General Municipal Law § 50–e(5), because it is undisputed that his mother was exclusively treated by respondent, that she was never seen or treated at any other clinic or hospital during her pregnancy, and that, at all times, respondent was in possession of her prenatal care medical records ( see Bayo v. Burnside Mews Assoc., 45 A.D.3d 495, 846 N.Y.S.2d 57 [1st Dept. 2007] ). This also shows that the delay would not substantially prejudice respondent ( see Bowser v. New York Health & Hosps. Corp., 93 A.D.3d 608, 942 N.Y.S.2d 44 [1st Dept. 2012] ). Lastly, the alleged extraordinary care that petitioner has required, which is amply supported by the record, coupled with his infancy, is a reasonable excuse for the delay ( cf. Matter of Nieves v. New York Health & Hosps. Corp., 34 A.D.3d 336, 337, 825 N.Y.S.2d 40 [1st Dept. 2006] ).
We have considered respondent's remaining contentions and find them unavailing.