Opinion
2012-02-7
Kristian CLASE, an Infant by Her Mother and Natural Guardian Ariselda LOPEZ, Plaintiff–Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (North Central Bronx Hospital), et al., Defendants–Respondents.
Fitzgerald & Fitzgerald, P.C., Yonkers (Mitchell L. Gittin of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
Fitzgerald & Fitzgerald, P.C., Yonkers (Mitchell L. Gittin of counsel), for appellant. Michael A. Cardozo, Corporation Counsel, New York (Julie Steiner of counsel), for respondents.
MAZZARELLI, J.P., ANDRIAS, DeGRASSE, RICHTER, ABDUS–SALAAM JJ.
Judgment, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered May 6, 2010, dismissing the complaint, and bringing up for review an order, same court and Justice, entered January 25, 2010, which denied plaintiff's motion to deem the notice of claim timely filed nunc pro tunc, and granted defendants' cross motion to dismiss the complaint pursuant to General Municipal Law § 50–e, unanimously affirmed, without costs.
Supreme Court properly considered the relevant statutory factors ( see General Municipal Law § 50–e[5] ) and providently exercised its discretion in denying plaintiff's motion. Plaintiff's infancy did weigh in his favor ( see Lisandro v. New York City Health and Hosps. Corp. [Metropolitan Hosp. Ctr.], 50 A.D.3d 304, 855 N.Y.S.2d 74 [2008], lv. denied 10 N.Y.3d 715, 862 N.Y.S.2d 335, 892 N.E.2d 401 [2008] ), but denial was warranted under the totality of the factors.
Plaintiff's reliance upon the medical records to show that defendants “acquired actual knowledge of the essential facts constituting the claim within [90 days from when the claim accrued] or within a reasonable time thereafter” is unavailing (General Municipal Law § 50–e[5] ). The records do not, on their face, give any indication of the infant's brain injuries nor malpractice on defendants' part causing the same ( 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]; Perez v. New York City Health & Hosps. Corp., 81 A.D.3d 448, 915 N.Y.S.2d 562 [2011] ).
We have considered plaintiff's remaining contentions and find them unavailing.