Opinion
February 6, 1995
Appeal from the Supreme Court, Westchester County (Donovan, J.).
Ordered that the appeal from the order entered August 31, 1993, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order entered June 9, 1993, is reversed, on the law, without costs or disbursements, the application is denied, and the proceeding is dismissed.
It is well settled that an application for leave to serve a late notice of claim is addressed to the sound discretion of the trial court upon consideration of the factors set forth in General Municipal Law § 50-e (5) (see, Matter of Perry v. City of New York, 133 A.D.2d 692). The infancy of the petitioner, standing alone, does not compel the granting of an application for leave to serve a late notice of claim (see, Matter of Kurz v. New York City Health Hosps. Corp., 174 A.D.2d 671). Rather, the focus is on whether the petitioner has a reasonable excuse for the delay in failing to file a timely notice of claim and whether the respondent was prejudiced as a result thereof (see, Matter of Charles v. New York City Health Hosps. Corp., 166 A.D.2d 526).
In the instant case, the petitioner's excuse for the delay was insufficient (see, Matter of D'Anjou v. New York City Health Hosps. Corp., 196 A.D.2d 818). The petitioner's mother's conclusory assertions that she only recently learned of a possible nexus between the petitioner's lung condition and the surgery performed to correct a congenital cardiopulmonary defect is unpersuasive. Moreover, the absence of a nexus between the delay and the petitioner's disability is another factor which, although not dispositive (see, Matter of Kurz v. New York City Health Hosps. Corp., supra, 174 A.D.2d, at 671), militates against granting leave to serve a late notice of claim (see, Matter of D'Anjou v. New York City Health Hosps. Corp., supra; Matter of Gandia v. New York City Hous. Auth., 173 A.D.2d 824). Furthermore, the respondent has demonstrated that it has been prejudiced by the delay. The notice of claim provided only vague, conclusory allegations of negligence and malpractice, and accordingly, the petitioner's medical records were insufficient to provide actual notice of the nature of the petitioner's claim (see, Matter of D'Anjou v. New York City Health Hosps. Corp., supra, at 820-821; cf., Matter of Kurz v. New York City Health Hosps. Corp., supra, at 673). The appellant was thus deprived of the opportunity to undertake a prompt investigation. Finally, given the appellant's persuasive and unrefuted evidence that the petitioner's alleged current condition was not caused by any malpractice on its part, the petitioner's failure to submit a medical affidavit provides another reason to deny the application (see, Matter of Andersen v. Nassau County Med. Ctr., 135 A.D.2d 530; cf., Jenkins v. County of Westchester, 133 A.D.2d 808). Mangano, P.J., Sullivan, Balletta and Miller, JJ., concur.