Opinion
2012-12-20
Derek ARAUZ, an Infant by His Mother and Natural Guardian, Fralia Lino, Plaintiff–Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, etc., Defendant–Respondent.
Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondent.
Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Karen M. Griffin of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, MANZANET–DANIELS, GISCHE, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered July 15, 2010, which denied plaintiff's motion to deem his previously served notice of claim timely, nunc pro tunc, and granted defendants' cross motion for dismissal of the complaint, unanimously affirmed, without costs.
In this medical malpractice action in which the infant plaintiff seeks to recover for injuries plaintiff's mother became aware of soon after his birth, the court properly considered the pertinent statutory factors and exercised its discretion in denying the infant plaintiff's motion (General Municipal Law § 50–e[5] ). Plaintiff's mother's excuse that she was unaware that she had a malpractice claim until approximately seven years after the infant plaintiff's birth, without explanation as to how she came to this knowledge, is unreasonable ( see Plaza v. New York Health & Hosps. Corp., 97 A.D.3d 466, 949 N.Y.S.2d 25 [1st Dept. 2012] ). Additionally, there was no excuse proffered for the additional delay of two years (nine years after the birth) between the filing of the notice of claim and the time the instant motion was made.
Moreover, while plaintiff's experts interpreted the hospital records to support his theory of liability, the records do not, on their face, evince that the hospital deviated from good and accepted medical practice, and thus, do not provide defendant hospital with timely actual knowledge of the underlying claim ( see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006];Webb v. New York City Health & Hosps. Corp., 50 A.D.3d 265, 855 N.Y.S.2d 65 [1st Dept. 2008] ).
The absence of the actual fetal monitoring tapes in defendant's records does not require a different result since, as those records confirm and defendant concedes, they showed severe fetal heart rate bradycardia. Additionally, there is no evidence in the medical record that any treatment rendered could have caused plaintiff's injuries, particularly since, upon infant plaintiff's delivery, plaintiff's condition was attributed to the unfortunate presence of a true tight knot observed in the umbilical cord near the placenta. ( see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006];Rodriguez v. New York City Health & Hosps. Corp. [Jacobi Med. Ctr.], 78 A.D.3d 538, 539, 911 N.Y.S.2d 347 [1st Dept. 2010],lv. denied17 N.Y.3d 718, 2011 WL 5839654 [2011];Velazquez v. City of New York Health & Hosps. Corp., 69 A.D.3d 441, 442, 894 N.Y.S.2d 15 [1st Dept. 2010],lv. denied15 N.Y.3d 711, 2010 WL 4065634 [2010] ).
Defendant has also demonstrated prejudice resulting from the passage of time, during which, many of its key employees involved in plaintiff's care have left the employ of Lincoln, and have not responded to defendant's efforts to contact them ( see Walker v. New York City Tr. Auth., 266 A.D.2d 54, 55, 698 N.Y.S.2d 460 [1st Dept. 1999] ). Since, in reaching his conclusions concerning Lincoln's treatment of plaintiff's mother, plaintiff's expert relies upon her testimony, which contradicts the actual records, this is not a case that will turn mainly on records rather than witnesses' memories ( cf. Leeds v. Lenox Hill Hosp., 6 A.D.3d 232, 233, 775 N.Y.S.2d 260 [1st Dept. 2004] ).
We have considered plaintiff's remaining arguments and find them unavailing.