Bayo v Burnside Mews Assoc.

Bayo v Burnside Mews Assoc. 2007 NY Slip Op 09504 [45 AD3d 495] November 29, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Ansumana Bayo et al., Respondents,
v
Burnside Mews Associates, Defendant, and Kay Talya Gubbay, M.D., et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York City (Janet L. Zaleon of counsel), for appellants.

Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for respondents.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered December 27, 2005, which granted plaintiffs' motion for an order deeming the notice of claim timely served upon defendants-appellants, and denied appellants' cross motion to dismiss the complaint for failure to file a timely notice of claim, unanimously affirmed, without costs.

The court providently exercised its discretion in deeming the notice of claim timely served upon appellants (General Municipal Law § 50-e [5]). Although the stated ignorance of the law by infant plaintiff's mother is not a reasonable excuse for the failure to have served a timely notice of claim (see Harris v City of New York, 297 AD2d 473 [2002], lv denied 99 NY2d 503 [2002]), infant plaintiff should not be deprived of a remedy, where, as here, the record evidence demonstrates that appellants' possession of the medical records sufficiently constituted actual notice of the pertinent facts, and that they would not be substantially prejudiced by the delay (see De La Cruz v New York City Health & Hosps. Corp., 13 AD3d 130 [2004]). Plaintiffs submitted affirmations from a physician establishing that the medical records, on their face, evinced that appellants failed to provide infant plaintiff with preventive care against lead poisoning (compare Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]), and appellants' argument that the delay would prejudice them in defending the [*2]action because of the inability to reconstruct events and conversations is unconvincing (Moody v New York City Health & Hosps. Corp. [Renaissance Health Care Network], 29 AD3d 395 [2006]; Matter of McMillan v City of New York, 279 AD2d 280 [2001]). Concur—Lippman, P.J., Nardelli, Buckley, Gonzalez and Sweeny, JJ.