Opinion
2003-07406.
Decided June 1, 2004.
In a proceeding, in effect, for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5), the petitioner appeals from an order of the Supreme Court, Kings County (Levine, J.), dated May 28, 2003, which denied the application.
Steven R. Harris Associates, New York, N.Y. (Joseph M. Kelley, Jr., of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Ronald E. Sternberg of counsel; Glen A. Tagliamonte on the brief), for respondents.
Before: FRED T. SANTUCCI, J.P., ROBERT W. SCHMIDT, SANDRA L. TOWNES, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law and as a matter of discretion, with costs, and the application for leave to serve a late notice of claim is granted.
The infant petitioner allegedly sustained an injury known as Erb's palsy during her delivery at Coney Island Hospital (hereinafter the hospital), and she subsequently received treatment for that injury at the hospital. Nine months after her birth, her mother Neelam Akhtar, served a notice of claim on the hospital, the City of New York, and the New York City Health and Hospitals Corporation (hereinafter referred to collectively as the respondents). The petitioner subsequently brought the application at bar for an order deeming the notice of claim timely served.
The notice of claim was a nullity since it was served after expiration of the 90-day statutory period ( see General Municipal Law § 50-e[a]) without leave of the court ( see Henry v. Aguilar, 282 A.D.2d 711). The Supreme Court therefore properly considered the application as one for leave to serve a late notice of claim pursuant to General Municipal Law § 50-e(5).
The Supreme Court improvidently exercised its discretion in denying the application. In view of Akhtar's unrebutted assertion that a hospital doctor informed her after the delivery that the petitioner had suffered a "brachial plexus type of injury" and that the infant subsequently received treatment for this injury at the hospital, it is apparent that the respondents had actual notice of the facts constituting the claim within the 90-day statutory period ( see Medley v. Cichon, 305 A.D.2d 643; Matter of Staley v. Piper, 285 A.D.2d 601; Matter of Tomlinson v. New York City Health and Hosps. Corp., 190 A.D.2d 806).
Furthermore, the respondents failed to present any evidence that this relatively short delay prejudiced their ability to maintain a defense ( see Rosas v. 397 Broadway Corp., 309 A.D.2d 913; Owens v. New York City Health and Hosps. Corp., 271 A.D.2d 514; Tomlinson v. New York City Health and Hosps. Corp., supra). Under the circumstances, the petitioner's failure to provide a reasonable excuse for the delay was not fatal to her application ( see Matter of Staley v. Piper, supra).
SANTUCCI, J.P., SCHMIDT, TOWNES and MASTRO, JJ., concur.