Opinion
2011-12-15
Shamarie YOUNG, etc., et al., Plaintiffs–Respondents, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, etc., Defendant–Appellant,St. Luke's–Roosevelt Hospital Center, Defendant.
Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for appellant. Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for respondents.
Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for appellant. Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for respondents.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered December 13, 2010, which granted defendant-appellant's motion to renew and reargue plaintiffs' motion for, among other things, leave to file a late notice of claim to the extent of clarifying that it had previously granted the motion solely to the infant plaintiff, unanimously affirmed, without costs. Appeals from orders, same court and Justice, entered January 11, 2010 and February 8, 2010, unanimously dismissed, without costs, as superseded by the appeal from the order entered December 13, 2010.
The motion court providently exercised its discretion in granting the motion (General Municipal Law § 50–e[5] ). Defendant's possession of medical records, including a sonogram stating that the infant plaintiff's mother had severely low amniotic fluid and that intrauterine growth restriction to the fetal plaintiff should be ruled out, established actual notice of the essential facts constituting the claim within the statutory 90–day period ( see Greene v New York City Health & Hosps. Corp., 35 A.D.3d 206, 207, 826 N.Y.S.2d 38 [2006] ). Defendant's claim that the memories of its employees are no longer at their “most fresh” does not evidence substantial prejudice attributable to the delay ( see Bayo v. Burnside Mews Assoc., 45 A.D.3d 495, 846 N.Y.S.2d 57 [2007] ). Under the circumstances, the absence of a reasonable excuse for the delay is not fatal ( see Greene, 35 A.D.3d at 207, 826 N.Y.S.2d 38; Matter of Dubowy v. City of New York, 305 A.D.2d 320, 321, 759 N.Y.S.2d 325 [2003] ).
We have considered defendant's remaining arguments and find them unavailing.