Opinion
2011-12-27
In the Matter of Briseida Felipe HERNANDEZ, etc., appellant, v. COUNTY OF SUFFOLK, et al., respondents.
Rappaport Glass Greene & Levine, Hauppauge, N.Y. (Matthew Zullo of counsel), for appellant. Christine Malafi, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for respondents.
Rappaport Glass Greene & Levine, Hauppauge, N.Y. (Matthew Zullo of counsel), for appellant. Christine Malafi, County Attorney, Hauppauge, N.Y. (Christopher A. Jeffreys of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50–e (5) for leave to serve a late notice of claim, the petitioner appeals from (1) an order of the Supreme Court, Suffolk County (Cohen, J.), dated November 10, 2010, which denied the petition, and (2) an order of the same court dated March 22, 2011, which denied their motion for leave to reargue the petition.
ORDERED that the appeal from the order dated March 22, 2011, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated November 10, 2010, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the respondents.
The Supreme Court did not improvidently exercise its discretion in denying the petition for leave to serve a late notice of claim for the alleged medical malpractice. The mere fact that the respondents were in possession of the infant's medical records did not, without more, establish that the respondents had actual knowledge of a potential injury. “Where, as here, there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim” ( Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154; see Arias v. New York City Health & Hosps. Corp. [ Kings County Hosp. Ctr.], 50 A.D.3d 830, 832, 855 N.Y.S.2d 265; Bucknor v. New York City Health & Hosps. Corp. [ Queens Hosp. Ctr.], 44 A.D.3d 811, 844 N.Y.S.2d 100). Furthermore, the petitioner failed to present a satisfactory excuse for the delay in seeking leave to serve a late notice of claim ( see Bucknor v. New York City Health & Hosps. Corp. [ Queens Hosp. Ctr.], 44 A.D.3d 811, 844 N.Y.S.2d 100; Matter of Pico v. City of New York, 8 A.D.3d 287, 288, 777 N.Y.S.2d 697; Matter of Lodati v. City of New York, 303 A.D.2d 406, 407, 755 N.Y.S.2d 853). Finally, the petitioner failed to demonstrate that the respondents had not been prejudiced by the delay ( see Casias v. City of New York, 39 A.D.3d 681, 833 N.Y.S.2d 662).