Opinion
6166N Index 21857/14
03-29-2018
In re Rosa Gertrudis Diaz HEREDIA, etc., Petitioner–Respondent, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Respondent–Appellant.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for appellant. Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Zachary W. Carter, Corporation Counsel, New York (Diana Lawless of counsel), for appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.
Sweeny, J.P., Renwick, Manzanet–Daniels, Kahn, Kern, JJ.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered April 12, 2016, which granted petitioners' application for leave to file a late notice of claim, unanimously affirmed, without costs.
The court providently exercised its discretion in granting the application for leave to file a late notice of claim ( General Municipal Law § 50–e [5 ] ). Petitioner, who is now claimant's guardian ad litem, set forth a reasonable excuse for the failure to serve a timely notice of claim, since claimant was in a coma and, when she awoke, had severe brain injury stemming from the alleged malpractice provided at respondent HHC's facility, Jacobi Medical Center (see Matter of Hubbard v. County of Madison, 71 A.D.3d 1313, 1315, 897 N.Y.S.2d 538 [3rd Dept. 2010] ).
Petitioner also submitted the affirmation of a physician who opined that Jacobi had actual knowledge of the pertinent facts constituting the claimed malpractice, through its medical records (see Bowser v. New York Health & Hosps. Corp., 93 A.D.3d 608, 942 N.Y.S.2d 44 [1st Dept. 2012] ). However, in opposition, HHC submitted the affirmation of a physician who opined that the records did not demonstrate malpractice at all, and argued that "mere assertions that a different course of treatment could have been followed do not address whether HHC had actual knowledge of the essential facts necessary to properly defend itself in the underlying action" ( Wally G. v. New York City Health & Hosps. Corp. [Metro. Hosp.], 27 N.Y.3d 672, 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067 [2016] ). Regardless of whether HHC had actual notice of the claim within 90 days of its accrual, its possession of the relevant medical records belies HHC's contention that it would be substantially prejudiced by the delay (see Bowser at 608, 942 N.Y.S.2d 44 ).