Opinion
2014-04-10
Ethan Ebanks BROWN, etc., Plaintiff–Appellant, v. The NEW YORK CITY HEALTH & HOSPITALS CORPORATION (NORTH CENTRAL BRONX HOSPITAL), Defendant–Respondent.
Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.
Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Ronald E. Sternberg of counsel), for respondent.
FRIEDMAN, J.P., MOSKOWITZ, FREEDMAN, GISCHE, CLARK, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 9, 2012, which granted defendant hospital's motion to dismiss the complaint for failure to comply with General Municipal Law § 50–e, and denied plaintiff's cross motion for, among other things, leave to file a late notice of claim, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in denying plaintiff's cross motion and dismissing the complaint. The mother's professed ignorance of the law is not a reasonable excuse for the delay in seeking leave to file a late notice of claim ( see Basualdo v. Guzman, 110 A.D.3d 610, 610, 973 N.Y.S.2d 621 [1st Dept.2013] ). Moreover, “plaintiff's infancy carries little weight,” because there is no connection between his infancy and the untimely notice of claim ( 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];see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 537–538, 814 N.Y.S.2d 580, 847 N.E.2d 1154 [2006] ). In addition, plaintiff failed to demonstrate that the hospital's medical records alone sufficed to put the hospital on notice of the alleged malpractice ( Basualdo, 110 A.D.3d at 610, 973 N.Y.S.2d 621). Indeed, the records indicate that the infant plaintiff was delivered at and released from the hospital in a healthy condition, without apparent injury, and that he was taken to the intensive care unit as a precaution, due to the mother's fever. Given the delay and lack of notice, the court properly determined that the hospital has been deprived of the opportunity to conduct a prompt investigation of the merits of plaintiff's malpractice claims (Velazquez v. City of N.Y. Health & Hosps. Corp. [Jacobi Med. Ctr.], 69 A.D.3d 441, 442–443, 894 N.Y.S.2d 15 [1st Dept.2010],lv. denied15 N.Y.3d 711, 910 N.Y.S.2d 36, 936 N.E.2d 917 [2010] ).