Gibbs v New York City Health & Hosps. Corp.

Gibbs v New York City Health & Hosps. Corp. 2012 NY Slip Op 08784 Decided on December 20, 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 December 20, 2012
Andrias, J.P., Friedman, DeGrasse, Manzanet-Daniels, Gische, JJ.
8767 21894/06

[*1]Trevor Gibbs, etc., Plaintiff-Appellant,

v

New York City Health and Hospitals Corporation, etc., et al., Defendants-Respondents.




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

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered June 16, 2010, which denied plaintiff's motion to deem his previously served notice of claim timely, nunc pro tunc, and granted defendants' cross motion for dismissal of the complaint, unanimously affirmed, without costs.

In this medical malpractice action, the motion court properly exercised its discretion in denying the infant plaintiff's motion upon consideration of the pertinent statutory factors and (General Municipal Law § 50-e[5]). The infant plaintiff's mother's excuse that she was unaware that she had a malpractice claim until she saw counsel's advertisement more than four and one half years after the infant plaintiff's birth and more than three and one half years after she became aware of his injuries, is unreasonable (see Plaza v New York Health & Hosps. Corp. [Jacobi Med. Ctr.], 97 AD3d 466, 467-468 [1st Dept 2012]). Additionally, there was no excuse for the more than three year delay from the time the notice was served until the instant motion was made.

Moreover, while plaintiff's expert interpreted the hospital records in a manner that supported his theory of liability, the records do not, on their face, evince that the hospital's acts or omissions inflicted injuries on the infant and thus, did not provide defendant hospital with timely, actual knowledge of the underlying claim (see Williams v Nassau County Med. Ctr., 6 [*2]NY3d 531, 537 [2006]; Webb v New York City Health & Hosps. Corp., 50 AD3d 265 [1st Dept 2008]).

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

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

ENTERED: DECEMBER 20, 2012

CLERK