From Casetext: Smarter Legal Research

Moore v. Albany County Department of Health

Appellate Division of the Supreme Court of New York, Third Department
Nov 18, 1993
198 A.D.2d 691 (N.Y. App. Div. 1993)

Opinion

November 18, 1993

Appeal from the Supreme Court, Albany County (Travers, J.).


Petitioner contends that her infant son was injured as a result of medical malpractice committed by respondents in their failure to treat petitioner for a streptococcus infection while under their care for prenatal treatment, which infection was communicated in utero to the infant and caused him to be born with serious physical disabilities. Supreme Court granted petitioner's motion to file a late notice of claim based on infancy, respondents' knowledge of petitioner's medical history and on the fact that notice of the birth complications which resulted in the death of one of the twins was given to respondents within five days of the birth, the service of a late notice of claim in a reasonable time after a medical opinion was secured supporting a cause of action for malpractice and the absence of prejudice to respondents.

Respondents urge that Supreme Court abused its discretion in granting petitioner's application in that nothing in the prenatal history they had, nor the premature delivery of twins and the death of one, nor in the information that petitioner gave respondents on the occasion of a postnatal visit in January 1991 when she informed respondents that she had complications with delivery and that she had contracted streptococcus, indicated that they needed to make a further inquiry into the matter and that they are now prejudiced by the grant of the application to file a late notice.

Supreme Court has broad discretion in determining applications for leave to file a late notice of claim (General Municipal Law § 50-e; see, Matter of Kressner v Town of Malta, 169 A.D.2d 927, 928). The discretion of Supreme Court will generally be upheld absent a demonstrated abuse of discretion. We find no abuse here. The possession of the pertinent medical records was sufficient to give respondents notice of essential medical facts constituting the claim. The facts of the treatment at respondents' facility form the basis of its alleged negligence. Respondents have failed to show prejudice to them as a result of the delay (see, Matter of Quiroz v City of New York, 154 A.D.2d 315; Kavanaugh v Memorial Hosp. Nursing Home, 126 A.D.2d 930, 931).

Weiss, P.J., Yesawich Jr. and Crew III, JJ., concur. Ordered that the order is affirmed, with costs.


Summaries of

Moore v. Albany County Department of Health

Appellate Division of the Supreme Court of New York, Third Department
Nov 18, 1993
198 A.D.2d 691 (N.Y. App. Div. 1993)
Case details for

Moore v. Albany County Department of Health

Case Details

Full title:In the Matter of ANGELA MOORE, as Parent and Natural Guardian of AHKMEL J…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 18, 1993

Citations

198 A.D.2d 691 (N.Y. App. Div. 1993)
603 N.Y.S.2d 355

Citing Cases

Matter of Reiter v. City of Oneida

Our review of the remaining factors reveals no abuse of discretion on the part of Supreme Court in denying…

Matter of McLaughlin v. County of Albany

Initially, we reject the contentions that respondent did not acquire knowledge of the essential facts…