Opinion
February 11, 1999
Appeal from the Supreme Court (Ceresia, Jr., J.).
Petitioner was born in April 1993. From the time of petitioner's birth until August 1994, respondent was her primary healthcare provider. It appears that petitioner visited respondent's pediatric clinic approximately 33 times during that period. At a July 13, 1994 visit, respondent's examining physician noted that petitioner may be developmentally delayed; soon thereafter, petitioner began to suffer from tremors. In early August 1994, an MRI performed at Albany Medical Center in Albany County revealed a massive hydrocephalus. Following surgery performed on August 12, 1994, petitioner returned to respondent for her final visit on August 22, 1994. A further brain MRI performed in February 1995 disclosed a mass in petitioner's brain and a massive chronic subdural hematoma. Petitioner then underwent a series of surgical procedures that kept her hospitalized until March 1995. Diagnosed as having a brain tumor requiring further surgery, petitioner continued to undergo physical therapy approximately twice weekly.
In September 1996, petitioner's mother first sought legal advice concerning a possible medical malpractice action against respondent. Petitioner's lawyers promptly ordered medical records, which were received in December 1996. The records were forwarded to a consulting pediatric neurologist in February 1997; in August 1997 that physician rendered an opinion that respondent had, among other things, committed malpractice in failing to timely diagnose petitioner's hydrocephalus. By order to show cause dated August 14, 1997, petitioner made application pursuant General Municipal Law § 50-e (5) for leave to file a late notice of claim. Supreme Court granted the application and respondent appeals. Because we conclude that Supreme Court acted within its discretion in granting petitioner's application, we affirm.
Initially, we reject the contentions that respondent did not acquire knowledge of the essential facts constituting the claim within a reasonable period of time and that respondent was substantially prejudiced by petitioner's latex notice. As properly concluded by Supreme Court, respondent's status as petitioner's primary healthcare provider and its possession of all relevant medical records through the time of the August 1994 surgery provided it with essentially contemporaneous knowledge of the facts underlying the claim (see, Matter of Moore v. Albany County Dept. of Health, 198 A.D.2d 691, 692; Matter of Charles v. New York City Health Hosps. Corp., 166 A.D.2d 526, 528; Matter of Strevell v. South Colonie Cent. School Dist., 144 A.D.2d 733, 734; Rechenberger v. Nassau County Med. Ctr., 112 A.D.2d 150, 152). The fact that respondent may have been unaware of petitioner's subsequently formed intent to pursue a malpractice claim is not determinative. Nor are we persuaded by the claim of prejudice predicated on the fact that respondent's clinic closed in June 1997, prior to the filing of a notice of claim. Respondent will surely experience no undue difficulty in locating the licensed physicians and other medical professionals who worked at the clinic during the relevant time period, and such difficulty would not in any event provide an adequate basis for a finding of prejudice (see, Matter of Meredithe C. v. Carmel Cent. School Dist., 192 A.D.2d 952, 953; Matter of Kurz v. New York City Health Hosps. Corp., 174 A.D.2d 671, 673).
Further, striking an equitable balance between respondent's need for prompt notification of the claim against it and petitioner's interest in just compensation (see, Matter of Mondaca v. County of Westchester, 195 A.D.2d 511, 512; Matter of Ferrer v. City of New York, 172 A.D.2d 240, 241), we conclude that the excuse offered for the delay, although by no means compelling, was sufficient to permit Supreme Court's exercise of discretion in favor of petitioner. During a substantial portion of the time that elapsed prior to petitioner's motion, her mother (a single parent) was understandably consumed with petitioner's serious medical problems and physical difficulties and her need to provide a living for herself and her family. We also agree with petitioner's contention that, although it was not legally necessary that the application for leave to file a late notice of claim be accompanied by a CPLR 3012-a affidavit of merit, absent a medical opinion; that respondent's own records documented clinical signs that petitioner was developing hydrocephalus, petitioner would have been unable to establish that respondent acquired knowledge of the essential facts constituting the claim within a reasonable period of time following accrual of the cause of action. Finally, we note that petitioner was not required to establish that the delay was a product of her infancy (see, Matter of Meredithe C. v. Carmel Cent. School Dist., supra, at 953).
Respondent's additional contentions have been considered and found to be unavailing.
Mikoll, J. P., Crew III, Yesawich Jr. and Peters, JJ., concur.
Ordered that the order is affirmed, with costs.