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In re Ma

Supreme Court of New York, Second Department

August 2, 2017

In the Matter of Shun Mao Ma, as administrator of the estate of Huan Hua Chen, deceased, respondent,
v.
New York City Health & Hospitals Corp., et al., appellants. Index No. 501036/15

          Argued Date: June 2, 2017

         D53077 C/htr

          Zachary W. Carter, Corporation Counsel, New York, NY (Pamela Seider Dolgow and Damion K. L. Stodola of counsel), for appellants.

          Morelli Law Firm PLLC, New York, NY (Jennie Shatynski and Sara A. Strickland of counsel), for respondent.

          WILLIAM F. MASTRO, J.P. MARK C. DILLON JEFFREY A. COHEN VALERIE BRATHWAITE NELSON, JJ.

          DECISION & ORDER

          MASTRO, J.

         In a proceeding, inter alia, pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim or, in effect, to deem a late notice of claim timely served nunc pro tunc, the New York City Health & Hospitals Corp. and Coney Island Hospital appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated May 11, 2015, as granted that branch of the petition which was for leave to serve a late notice of claim with respect to the claim alleging conscious pain and suffering or, in effect, to deem so much of the late notice of claim as alleged conscious pain and suffering timely served nunc pro tunc.

         ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the petition which was for leave to serve a late notice of claim with respect to the claim alleging conscious pain and suffering or, in effect, to deem so much of the late notice of claim as alleged conscious pain and suffering timely served nunc pro tunc is denied.

         On January 18, 2014, the petitioner's decedent died at the appellants' hospital in Brooklyn. Almost one year later, on January 13, 2015, the petitioner filed a notice of claim with the New York City Health & Hospitals Corp. (hereinafter the HHC) alleging conscious pain and suffering and wrongful death. By order to show cause dated March 16, 2015, the petitioner sought, inter alia, leave to serve a late notice of claim alleging conscious pain and suffering or, in effect, to deem so much of the late notice of claim as alleged conscious pain and suffering timely served nunc pro tunc. The Supreme Court granted that branch of the petition.

         Under General Municipal Law § 50-e(5), in determining whether to grant an extension of time to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must consider, in particular, whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter (see General Municipal Law § 50-e[5]; Unconsolidated Laws § 7401[2]; Wally G. v New York City Health & Hosps. Corp. [Metrop. Hosp.], 27 N.Y.3d 672, 675; Matter of Lawhorne v City of New York, 133 A.D.3d 856; Matter of Murray v Village of Malverne, 118 A.D.3d 798, 799; Matter of Felice v Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 147). Additional factors in determining whether to grant such an extension include whether the petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the delay in seeking leave to serve a late notice of claim, whether the claimant died before the time limited for service of the notice of claim, and whether the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits (see General Municipal Law § 50-e[5]; Williams v Nassau County Med. Ctr., 6 N.Y.3d 531, 535; Matter of Murray v Village of Malverne, 118 A.D.3d at 799; Matter of Sanchez v City of New York, 116 A.D.3d 703, 704).

         The evidence submitted by the petitioner failed to establish that the appellants had actual knowledge of the essential facts constituting the claim to recover damages for conscious pain and suffering within the requisite 90-day period or a reasonable time thereafter (see Williams v Nassau County Med. Ctr., 6NY3d at 538; Lyles v New York City Health & Hosps. Corp., 121 A.D.3d 648, 650; Matter of Magana v Westchester County Health Care Corp., 89 A.D.3d 851; Argueta v New York City Health & Hosps. Corp. [Coney Is. Hosp.], 74 A.D.3d 713, 713-714). Furthermore, contrary to the petitioner's contention, the notice of claim served upon the HHC nine months after the 90-day statutory period had elapsed was served too late to provide the HHC with actual knowledge of the essential facts constituting the conscious pain and suffering claim within a reasonable time after the expiration of the 90-day statutory period (see Matter of Maggio v City of New York, 137 A.D.3d 1282, 1283; Matter of Stark v West Hempstead Union Free Sch. Dist., 127 A.D.3d 765, 766; Matter of Valila v Town of Hempstead, 107 A.D.3d 813, 814).

         Moreover, the petitioner failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the subsequent delay in filing the petition (see Matter of Maggio v City of New York, 137 A.D.3d at 1283; Matter of Thill v North Shore Cent. Sch. Dist., 128 A.D.3d 976, 978; Matter of Smith v Baldwin Union Free School Dist.,63 A.D.3d 1078, 1079). Even assuming that the petitioner made an initial showing that the late notice will not substantially prejudice the appellants (see Matter of Murray v County of Suffolk, 128 A.D.3d 700, 701), and that the appellants, in response, failed to make "a particularized evidentiary showing that [they] will be substantially prejudiced if the late notice is allowed" (Matter of Newcomb v Middle Country Cent. Sch. Dist.,28 N.Y.3d 455, 467), upon consideration of the balance of the relevant factors (see General Municipal Law ยง 50-e[5]), that branch of the petition which was for leave to serve a late notice of claim with respect to the claim alleging conscious pain and suffering or, in effect, to deem so much of ...


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