Opinion
2012-12-11
Oscar TORRES, etc., Plaintiff–Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (LINCOLN HOSPITAL), Defendant–Respondent.
Fitzgerald & Fitzgerald, P.C., Yonkers (John E. Fitzgerald of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondent.
Fitzgerald & Fitzgerald, P.C., Yonkers (John E. Fitzgerald of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondent.
ANDRIAS, J.P., FRIEDMAN, DeGRASSE, MANZANET–DANIELS, GISCHE, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 5, 2010, which denied plaintiff's motion to deem his previously served notice of claim timely, nunc pro tunc, and granted defendant's cross motion for dismissal of the complaint, unanimously affirmed, without costs.
In this action for medical malpractice, the infant plaintiff seeks to recover for injuries he suffered after being born extremely premature, at 25–weeks gestation, weighing only one pound and nine ounces. The motion court properly exercised its discretion in denying plaintiff's motion upon consideration of the pertinent statutory factors (General Municipal Law § 50–e[5] ). The infant plaintiff's mother's excuse that she was unaware that she had a malpractice claim until more than six years after plaintiff's birth is unreasonable ( see Plaza v. New York Health & Hosps. Corp. [Jacobi Med. Ctr.], 97 A.D.3d 466, 467–468, 949 N.Y.S.2d 25 [1st Dept.2012] ). Additionally, there was no excuse proffered for the additional delay of more than three years (almost 10 years after the birth), between the filing of the notice of claim and the time the instant motion was made.
Further, since the infant plaintiff's condition and prognosis are consistent with his prematurity, the hospital records do not suggest any injury 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 [2006];Rodriguez v. New York City Health & Hosps. Corp. [Jacobi Med. Ctr.], 78 A.D.3d 538, 539, 911 N.Y.S.2d 347 [1st Dept.2010],lv. denied17 N.Y.3d 718, 2011 WL 5839654 [2011];Velazquez v. City of New York Health & Hosps. Corp., 69 A.D.3d 441, 442, 894 N.Y.S.2d 15 [1st Dept.2010],lv. denied15 N.Y.3d 711, 2010 WL 4065634 [2010] ).
We have considered plaintiff's remaining arguments and find them unavailing.