Opinion
6234N Index 25537/15E
04-05-2018
Cynthia HARRIS, Plaintiff–Respondent, v. The NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant–Appellant, Reginald Denis, M.D., et al., Defendants.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for appellant. Lisa M. Comeau, Garden City, for respondent.
Zachary W. Carter, Corporation Counsel, New York (Emma Grunberg of counsel), for appellant.
Lisa M. Comeau, Garden City, for respondent.
Acosta, P.J., Tom, Oing, Moulton, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered December 16, 2016, which granted plaintiff's motion for leave to file an untimely notice of claim, unanimously affirmed, without costs.
This appeal involves a claim against defendant New York City Health and Hospitals Corporation (HHC) for medical malpractice allegedly committed by the individually named defendants during their employment as physicians at Lincoln Medical and Mental Health Center (Lincoln Hospital) in providing plaintiff with medical treatment on or about July 22, 2014 by failing to diagnose that she had a brain tumor.
The Supreme Court providently exercised its discretion in granting plaintiff leave to file a late notice of claim upon HHC (see General Municipal Law § 50–e[5] ). Plaintiff's expert affidavit establishes that HHC obtained actual knowledge of the facts underlying plaintiff's theory of a departure from the accepted standard of care with regard to the diagnosis and treatment of her brain tumor and the existence of a causally related injury (see Alvarez v. New York City Health & Hosps. Corp. [North Cent. Bronx Hosp.], 101 A.D.3d 464, 955 N.Y.S.2d 330 [1st Dept. 2012] ). Although HHC does not deny it has the July 2014 MRI film in its possession, it failed to produce it or submit a medical expert's affidavit rebutting the opinion of plaintiff's medical expert that the MRI establishes that Lincoln Hospital's staff failed to diagnose the mass on plaintiff's brain even though it was visible at the time she received medical treatment at Lincoln Hospital, because the head imaging studies conducted by nonparty New York Radiology Partners on May 7, 2014 and April 27, 2015, respectively, show the tumor (see Perez v. New York City Health & Hosps. Corp., 81 A.D.3d 448, 448–449, 915 N.Y.S.2d 562 [1st Dept. 2011] ).Contrary to HHC's contention, plaintiff has demonstrated a reasonable excuse for the delay, because the record shows that her tumor was not diagnosed until April 27, 2015, and that she required two surgeries to treat it (see Matter of Kellel B. v. New York City Health & Hosps. Corp. , 122 A.D.3d 495, 496, 997 N.Y.S.2d 50 [1st Dept. 2014] ). Even if this Court were to find that plaintiff failed to set forth a reasonable excuse for the delay, the lack of a reasonable excuse is not, standing alone, sufficient to deny her leave application because the record shows that HHC received timely actual notice of the essential facts underlying plaintiff's medical malpractice claim (see Renelique v. New York City Hous. Auth., 72 A.D.3d 595, 596, 899 N.Y.S.2d 232 [1st Dept. 2010] ).
In addition, HHC will not be prejudiced by allowing plaintiff to file a late notice of claim pertaining to the alleged failure to timely diagnose her brain tumor because her medical records presumably reflect the course of treatment and the facts relevant to her claims (see Uzcha v. New York City Health & Hosps. Corp., 288 A.D.2d 48, 732 N.Y.S.2d 399 [1st Dept. 2001] ). Lastly, HHC's contention that it has been prejudiced because Jarome Kalil Lazaga, M.D., is no longer employed by the Lincoln Hospital, does not remember plaintiff and is now living in California is unavailing, because he is a named defendant who is represented by HHC's counsel and there is no indication in the record that he or any other witness are actually unavailable (see Caminero v. New York City Health & Hosps. Corp. [Bronx Mun. Hosp. Ctr.], 21 A.D.3d 330, 333, 800 N.Y.S.2d 173 [1st Dept. 2005] ).