Opinion
2012-04-24
In the Matter of Lizzette RAMOS–ELIZARES, et al., respondents, v. WESTCHESTER COUNTY HEALTHCARE CORPORATION, appellant.
Martin Clearwater & Bell, LLP, New York, N.Y. (Arjay G. Yao and Sean F.X. Dugan of counsel), for appellant. Rosenberg, Minc, Falkoff & Wolff, LLP, New York, N.Y. (Sharon Elmaleh–Schoenman of counsel), for respondents.
Martin Clearwater & Bell, LLP, New York, N.Y. (Arjay G. Yao and Sean F.X. Dugan of counsel), for appellant. Rosenberg, Minc, Falkoff & Wolff, LLP, New York, N.Y. (Sharon Elmaleh–Schoenman of counsel), for respondents.
In a proceeding pursuant to General Municipal Law § 50–e (5) for leave to serve a late notice of claim, Westchester County Healthcare Corporation appeals from an order of the Supreme Court, Westchester County (Liebowitz, J.), entered October 14, 2011, which granted the petition.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the petition is denied.
In exercising its discretion to grant leave to serve a late notice of claim, a court must consider various factors, including whether (1) the petitioners have demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter, and (3) the delay would substantially prejudice the public corporation in maintaining its defense on the merits ( see General Municipal Law § 50–e[5]; Public Authorities Law § 3316 [1]; Matter of Magana v. Westchester County Health Care Corp., 89 A.D.3d 851, 932 N.Y.S.2d 363; Matter of Barnes v. New York City Health & Hosps. Corp., 69 A.D.3d 934, 893 N.Y.S.2d 613; Matter of Chambers v. Nassau County Health Care Corp., 50 A.D.3d 1134, 1135, 857 N.Y.S.2d 222).
Here, the evidence submitted by the petitioners did not establish that the appellant had actual knowledge of the essential facts constituting the claim within the requisite 90–day period or a reasonable time thereafter. Merely having or creating hospital records, without more, does not establish actual knowledge of a potential claim where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on the petitioner attributable to malpractice ( see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154; Contreras v. 357 Dean St. Corp., 77 A.D.3d 604, 606, 908 N.Y.S.2d 734; Argueta v. New York City Health & Hosps. Corp. [ Coney Is. Hosp.], 74 A.D.3d 713, 714, 905 N.Y.S.2d 611; Contreras v. KBM Realty Corp., 66 A.D.3d 627, 630, 887 N.Y.S.2d 172; Matter of Ali v. New York City Health & Hosps. Corp., 61 A.D.3d 860, 861, 877 N.Y.S.2d 221). Here, the petitioners failed to establish that the alleged malpractice was apparent from an independent review of the medical records ( cf. Matter of Godoy v. Nassau Health Care Corp., 49 A.D.3d 541, 542, 855 N.Y.S.2d 168; Cifuentes v. New York City Health & Hosps. Corp., 43 A.D.3d 385, 386, 840 N.Y.S.2d 433). The petitioners also failed to establish that the six-month delay after the expiration of the 90–day period would not substantially prejudice the appellant's ability to investigate the claim and maintain a defense on the merits ( see Matter of Liebman v. New York City Dept. of Educ., 69 A.D.3d 633, 893 N.Y.S.2d 141; Matter of Riccio v. Town of Eastchester, 65 A.D.3d 591, 592, 883 N.Y.S.2d 714; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 152, 851 N.Y.S.2d 218; Matter of del Carmen v. Brentwood Union Free School Dist., 7 A.D.3d 620, 621, 777 N.Y.S.2d 152; Matter of Lorseille v. New York City Hous. Auth., 295 A.D.2d 612, 744 N.Y.S.2d 880). Accordingly, the petition should have been denied.