Opinion
Decided May 6, 2008.
APPEALS, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered July 5, 2007. The Appellate Division (1) affirmed a judgment of the Supreme Court, New York County (Eileen Bransten, J.; op 2006 NY Slip Op 30197[U]), which had granted plaintiffs' motion for leave to serve a late notice of claim and deemed the notice of claim served, and (2) affirmed an order of that court (Eileen Bransten, J.; op 2006 NY Slip Op 30198[U]), which had granted plaintiffs' motion for leave to voluntarily discontinue the action, without prejudice to renewal before January 1, 2008, and dismissed the complaint without prejudice. The following question was certified by the Appellate Division: "Was the order of the Supreme Court, as affirmed by this Court, properly made?"
Plaintiffs commenced this negligence action against defendant hospital based upon its alleged failure to monitor and screen the lead levels in the infant plaintiff's blood during routine pediatric checkups.
The Appellate Division concluded that the motion court, in allowing plaintiff's to serve a late notice of claim, properly considered the infancy, the potential unfair and unjust deprivation of the infant's day in court due to the mother's ignorance of the law, defendant's actual knowledge of the facts constituting the claim, and the absence of prejudice to defendant; and that the motion court providently exercised its discretion in dismissing the complaint without prejudice to renewal before January 1, 2008, when the infant would be eight years old, given that defendant failed to show prejudice and record evidence revealed that the elevated blood lead levels were known to cause brain injury, but that the full extent of the injury could not be evaluated until the child was seven years old.
Pearson v New York City Health Hosps. Corp. ( Harlem Hosp. Ctr.), 43 AD3d 92, affirmed.
Michael A. Cardozo, Corporation Counsel, New York City ( Drake A. Colley of counsel), for New York City Health and Hospitals Corporation, appellant.
Leakey Johnson, P.C., New York City ( Peter James Johnson, Jr., of counsel), for Neville Morgan and another, appellants.
Law Offices of Fitzgerald Fitzgerald, P.C., Yonkers ( John M. Daly of counsel), for respondent.
Before: Chief Judge KAYE and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
On these facts, the courts below acted within their discretion in granting plaintiff's motion for permission to serve a late notice of claim ( see General Municipal Law § 50-e; Williams v Nassau County Med. Ctr., 6 NY3d 531, 538). Similarly, the courts below did not abuse their discretion by granting plaintiff's motion to discontinue the action without prejudice to renewal when the full extent of plaintiff's injuries are ascertainable ( see CPLR 3217).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.