Clase v New York City Health & Hosps. Corp.

Clase v New York City Health & Hosps. Corp. 2012 NY Slip Op 00831 Decided on February 7, 2012 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 February 7, 2012
Mazzarelli, J.P., Andrias, DeGrasse, Richter, Abdus-Salaam JJ.
6729 21539/06

[*1]Kristian Clase, an Infant by Her Mother and Natural Guardian Ariselda Lopez, Plaintiff-Appellant,

v

New York City Health and Hospitals Corporation (North Central Bronx Hospital), et al., Defendants-Respondents.




Fitzgerald & Fitzgerald, P.C., Yonkers (Mitchell L. Gittin of
counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Julie
Steiner of counsel), for respondents.

Judgment, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered May 6, 2010, dismissing the complaint, and bringing up for review an order, same court and Justice, entered January 25, 2010, which denied plaintiff's motion to deem the notice of claim timely filed nunc pro tunc, and granted defendants' cross motion to dismiss the complaint pursuant to General Municipal Law § 50-e, unanimously affirmed, without costs.

Supreme Court properly considered the relevant statutory factors (see General Municipal Law § 50-e [5]) and providently exercised its discretion in denying plaintiff's motion. Plaintiff's infancy did weigh in his favor (see Lisandro v New York City Health and Hosps. Corp. [Metropolitan Hosp. Ctr.], 50 AD3d 304 [2008], lv denied 10 NY3d 715 [2008]), but denial was warranted under the totality of the factors.

Plaintiff's reliance upon the medical records to show that defendants "acquired actual knowledge of the essential facts constituting the claim within [90 days from when the claim accrued] or within a reasonable time thereafter" is unavailing (General Municipal Law § 50-e [5]). The records do not, on their face, give any indication of the infant's brain injuries nor malpractice on defendants' part causing the same (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; Perez v New York City Health & Hosps. Corp., 81 AD3d 448 [2011]).

We have considered plaintiff's remaining contentions and find them unavailing.

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

ENTERED: FEBRUARY 7, 2012 [*2]

CLERK