Young v New York City Health & Hosps. Corp.

Young v New York City Health & Hosps. Corp. 2011 NY Slip Op 09020 Decided on December 15, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 15, 2011
Saxe, J.P., Sweeny, Acosta, DeGrasse, Abdus-Salaam, JJ. 6349N- 6350N-
6350NA 24749/05

[*1]Shamarie Young, etc., et al., Plaintiffs-Respondents,

v

New York City Health and Hospitals Corporation, etc., Defendant-Appellant, St. Luke's-Roosevelt Hospital Center, Defendant.




Michael A. Cardozo, Corporation Counsel, New York
(Mordecai Newman of counsel), for appellant.
Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of
counsel), for respondents.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered December 13, 2010, which granted defendant-appellant's motion to renew and reargue plaintiffs' motion for, among other things, leave to file a late notice of claim to the extent of clarifying that it had previously granted the motion solely to the infant plaintiff, unanimously affirmed, without costs. Appeals from orders, same court and Justice, entered January 11, 2010 and February 8, 2010, unanimously dismissed, without costs, as superseded by the appeal from the order entered December 13, 2010.

The motion court providently exercised its discretion in granting the motion (General Municipal Law § 50-e[5]). Defendant's possession of medical records, including a sonogram stating that the infant plaintiff's mother had severely low amniotic fluid and that intrauterine growth restriction to the fetal plaintiff should be ruled out, established actual notice of the essential facts constituting the claim within the statutory 90-day period (see Greene v New York City Health & Hosps. Corp., 35 AD3d 206, 207 [2006]). Defendant's claim that the memories of its employees are no longer at their "most fresh" does not evidence substantial prejudice attributable to the delay (see Bayo v Burnside Mews Assoc., 45 AD3d 495 [2007]). Under the circumstances, the absence of a reasonable excuse for the delay is not fatal (see Greene, 35 AD3d [*2]at 207; Matter of Dubowy v City of New York, 305 AD2d 320, 321 [2003]).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 15, 2011

CLERK