Opinion
July 12, 1993
Appeal from the Supreme Court, Kings County (Levine, J.).
Ordered that the judgment is modified, on the law, by deleting the provision thereof which granted that branch of the application which was on behalf of the petitioners Carolyn West and Richard West, individually, and substituting therefor a provision denying that branch of the application; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
We find that the court did not improvidently exercise its discretion in granting the infant petitioner Taryn West leave to serve a late notice of claim. The infant allegedly received negligent treatment by hospital personnel during her delivery at Kings County Hospital, causing her to sustain cerebral palsy. Nearly five years after her birth, her parents, the petitioners Carolyn and Richard West, commenced this proceeding for permission to serve a late notice of claim against the appellants New York City Health and Hospitals Corporation and the hospital pursuant to General Municipal Law § 50-e (5).
Contrary to the appellants' contention, the absence of an affidavit from the petitioners establishing that the delay was a product of the child's infancy is not fatal to their application, as infancy is only one consideration, and the decision to grant or deny an extension under General Municipal Law § 50-e (5) is purely a discretionary one (see, Cohen v. Pearl Riv. Union Free School Dist., 51 N.Y.2d 256; Matter of Kurz v. New York City Health Hosps. Corp., 174 A.D.2d 671). The appellants had actual knowledge of the essential facts constituting the claim of malpractice within 90 days of the alleged malpractice, as they provided prenatal care to the mother, delivered the infant, and provided treatment in a neurology clinic for over a year after the infant's birth. Moreover, the appellants failed to show that they were prejudiced by the delay (see, Matter of Banegas-Nobles v. New York City Health Hosps. Corp., 184 A.D.2d 379; Matter of Kurz v. New York City Health Hosps. Corp., supra; Matter of Charles v. New York City Health Hosps. Corp., 166 A.D.2d 526; Matter of Quiroz v. City of New York, 154 A.D.2d 315). Under the circumstances of this case, the petitioners were not required to provide a medical affidavit of merit (see, Matter of Sloan v County of Westchester, 175 A.D.2d 838; Matter of Charles v. New York City Health Hosps. Corp., supra).
As the petitioners concede in their brief, the court erred in granting the parents leave to serve a late notice of claim with respect to their derivative claims, as that branch of the application was made after the expiration of the Statute of Limitations and was therefore untimely with respect to them as a matter of law (see, Matter of Adams v. City of New York, 180 A.D.2d 629; Possenti v. Sears Roebuck Co., 148 A.D.2d 687; Lewis v. New York City Tr. Auth., 100 A.D.2d 896). We have therefore modified the judgment accordingly. Bracken, J.P., Balletta, O'Brien and Copertino, JJ., concur.