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Pierre-Louis v. New York City Health and Hospitals Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 6, 2010

JAMAL FRANTZ PIERRE-LOUIS, ETC., ET AL., PETITIONERS-RESPONDENTS,
v.
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, RESPONDENT-APPELLANT.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or about October 10, 2008, which, in an action alleging medical malpractice, granted petitioners' motion for leave to file a late notice of claim, unanimously reversed, on the law and the facts, without costs, and the motion denied.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Mazzarelli, Nardelli, Acosta, Renwick, JJ.

20351/08

Petitioners failed to demonstrate that respondent had actual notice of the facts constituting the claim and would not be prejudiced by the delay (see Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]). Respondent's mere possession of medical records does not demonstrate that it has actual knowledge of the essential facts constituting the claim, as the medical records, on their face, indicate that infant petitioner underwent a routine circumcision without complications, and do not evince any malpractice (id. at 537; see Webb v New York City Health & Hosps. Corp., 50 AD3d 265 [2008]). Petitioners also failed to offer a reasonable excuse for the delay of more than one year in seeking leave to file a late notice of claim. Petitioner mother did not state when she became aware of the alleged malpractice, nor is there any indication that the delay was a result of the infancy (see Matter of Nieves v New York Health & Hosps. Corp., 34 AD3d 336, 337 [2006]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100406

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