Opinion
Index No. 529422/2023 Motion Seq. 001
12-20-2023
In the Matter of the Application of DENISE BERNACET, Petitioner, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, WOODHULL HOSPITAL, and BELLEVUE HOSPITAL, Respondents.
Unpublished Opinion
DECISION & ORDER
Carolyn E. Wade, J.
After oral argument, Petitioner's application for an Order granting leave to serve a late Notice of Claim and deem same timely served nunc pro tunc, NYSCEF Doc. Nos.: 1-15; 29-33; 35-36, is GRANTED as follows:
General Municipal Law ("GML") § 50-e (1)(a) provides that a Notice of Claim must be served within 90 days following the date of the incident giving rise to the claim. GML § 50-e (5) prescribes that upon an application,, the Court may, in its discretion, permit service of a late Notice of Claim.
In deciding an application, pursuant to GML § 50-e(5), the Court considers the following: whether the respondent acquired actual notice of the essential facts constituting the claim Within 90 days of its accrual or a reasonable time thereafter; whether there is substantial prejudice to the respondent in permitting the late Notice of Claim; and whether there is a reasonable excuse for the failure to serve a timely Notice of Claim (Matter of Balbuenas v. New York City Health & Hosps. Corp., 209 A.D.3d 642, 644 [2d Dept 2022]). The presence or absence of a factor is not dispositive as to granting leave to serve a late [Notice of Claim (Rodriguez v. Westchester Med. Ctr. (wmc), 196 A.D.3d 659, 660 [2d Dept 2021]).
Petitioner maintains that the Respondents committed medical malpractice by, inter alia, failing to identify a severe infection from the contaminated peripheral intravenous line site in her right aim. Petitioner alleges that her cause of action arose on October 1, 2022, which would require an application for leave to file a Notice of Claim be filed by December 30, 2023. Nevertheless, the within application to file a late Notice of Claim was timely filed on October 11, 2023, well within the one year and 90-day statute of limitations for commencing an action against the Respondents (GML § 50-i (1); Johnson v. City of New York, 302 A.D.2d 463, 462 [2d Dept 2003]).
The Court finds Petitioner l|as met her burden for leave to serve a late-Notice of Claim and deeming service timely nunc pro tunc. In support of her application, Petitioner submits her medical records and Dr. Ellen Bondar's affirmation, Who opines that the Respondents departed from the accepted standard of carp when they medically treated the Petitioner, resulting in her injuries. "Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute actual knowledge of the facts constituting the claim" (Matter of Breslin v. Nassau Health Care Corp., 153 A.D.3d 1256, 1258 [2d Dept 2017] [citation omitted]; see also Matter of Leon v. New York City Health & Hosps. Corp., 163 A.D.3d 670, 672 [2d Dept 2018]).
In opposition, Respondents, argue that upon a review of the medical records, their expert, Dr. Pollack, opined that Petitioners medical records evinced no malpractice by hospital staff. Thus, Respondents contend that they did not acquire actual knowledge of the facts underlying Petitioner's claim within ninety days of its accrual However, neither statute nor case law requires a claimant to "establish the merits of [her] cause of action at so preliminary a stage as upon service I of a notice of claim" (Matter of Benavides v. NY City Health & Hosps. Corp, 197 N.Y.S.3d 493, 494-495 [1st Dept 2023]. Upon in examination of Petitioner's submissions, Le., her medical records and expert affirmation, the Court finds that Respondents acquired actual knowledge of the facts underlying Petitioner's claim within ninety days of its accrual.
The Court further finds that Petitioner has set forth a reasonable excuse for the delay in serving the Notice of Claim, which is premised on her health issues and months of recovery following her discharge from the Respondents' hospital (Matter of Levin v. County of Westchester, 91 A.D.3d 646, 647 [2d Dept 2012]; Matter of Olsen v. County of Nassau, 14 A.D.3d 706,707 [2d Dept 2005]). However, the Court rotes that where there is a showing of actual notice and lack of substantial prejudice, lack of a reasonable excuse does not prohibit granting leave to serve a late Notice of Claim (Matter of Rivera-Guallpa v. County of Nassau, 40 A.D.3d 1001, 1002 [2d Dept 2007]; Hendershot v. Westchester Med Ctr., 8 A.D.3d 381, 382 [2d Dept 2004]).
Based upon the foregoing, the Court finds that Respondents had actual knowledge of the facts underlying the Petitioner's claim within 90 days of its accrual; there is no substantial prejudice to Respondents in permitting service of the late Notice of Claim; and that the Petitioner established a reasonable excuse foi the delay in filing.
Accordingly, the instant application to serve a late Notice of Claim and deem same timely served nunc pro tunc is GRANTED .
ORDERED that Petitioner serves a copy of this Order with Notice of Entry via NYSCEF within ten (10) days of the entry of this Order by the Clerk of the Court, it is further
ORDERED that Petitioner files a Summons and Complaint with thirty (30) business days of the date of this Order to commence an action against the Respondents.
This constitutes the Decision and Order of the Court.