Opinion
Submitted March 1, 2000.
April 13, 2000.
In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the defendants New York City Health and Hospitals Corporation, Franz Margono s/h/a "John" Margono, Claudette Jones s/h/a C.E. Jones, and Bente Hoegsberg s/h/a "John" Hoegsberg appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated September 24, 1998, which granted that branch of the plaintiff's motion which was to deem his notice of claim to be timely served and denied their cross motion to dismiss the complaint.
Michael D. Hess, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Fay Ng of counsel), for appellants.
Kramer, Dillof, Tessel, Duffy Moore, New York, N.Y. (Matthew Gaier and Norman Bard of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., DANIEL W. JOY, WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN, JJ. DECISION ORDER
ORDERED that the order is affirmed, with costs.
Under the circumstances of this case, the Supreme Court providently exercised its discretion in deeming the plaintiff's notice of claim timely served. The application was made within the appropriate period of limitation, as tolled by the plaintiff's infancy (see, Matter of Makris v. Westchester County, 208 A.D.2d 843 ). In addition, no undue prejudice was caused by the delay since the New York City Health and Hospitals Corporation was in possession of the plaintiff's medical records as of the time of the alleged malpractice and thus had actual notice of the claim and its underlying facts (see, Matter of Tomlinson v. New York City Health and Hospitals Corp., 190 A.D.2d 806, 806-807 ).