Opinion
April 28, 1992
Appeal from the Supreme Court, New York County (Martin Schoenfeld, J.).
We agree with the IAS court that defendants should be estopped from asserting the Statute of Limitations or the untimeliness of the March 12, 1990 supplemental notice of claim for wrongful death and conscious pain and suffering based upon medical malpractice because of their active concealment of plaintiff's mother's death, and their failure to reasonably and diligently inquire or ascertain the whereabouts of the decedent's relatives prior to releasing the body for a funeral to the city mortuary, although a next of kin was listed (Simcuski v Saeli, 44 N.Y.2d 442, 448; Cassidy v County of Nassau, 84 A.D.2d 742).
Nor did the IAS court err in granting plaintiff leave to serve an amended complaint setting forth more fully her allegations of fraud and concealment, where the record reveals that defendants clearly had actual knowledge of the facts underlying those claims and were therefore not substantially prejudiced by the delay in serving the notice of claim (Dodd v Warren, 110 A.D.2d 807; General Municipal Law § 50-e). We have reviewed the defendants' remaining claims and find them to be without merit.
Concur — Murphy, P.J., Ellerin, Wallach, Asch and Rubin, JJ.