Alvarez v New York City Health & Hosps. Corp.

Alvarez v New York City Health & Hosps. Corp. 2012 NY Slip Op 08452 Decided on December 11, 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 11, 2012
Andrias, J.P., Friedman, DeGrasse, Manzanet-Daniels, Gische, JJ.
8768 22046/06

[*1]Cristin Alvarez, etc., Plaintiff-Appellant,

v

New York City Health and Hospitals Corporation (North Central Bronx Hospital), Defendant-Respondent.




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

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered April 14, 2010, which denied plaintiff's motion to deem her previously served notice of claim timely, nunc pro tunc, and granted defendant's cross motion for dismissal of the complaint, unanimously reversed, on the law and the facts, without costs, plaintiff's motion granted, and defendant's cross motion denied.

In this action for medical malpractice, the infant plaintiff who was born at defendant hospital in October 2004 and was found to be suffering from abnormally low glucose levels shortly after her birth, alleges, inter alia, that defendant committed malpractice by failing to perform an emergency Cesarean section and in its diagnosis and treatment of plaintiff's hypoglycemia, resulting in neurological injuries. Plaintiff served defendant with a notice of claim on June 5, 2006 but did not move to deem the notice timely until February 8, 2009.

In support of her motion, plaintiff submitted a pediatrician's affirmation which established that defendant had actual knowledge of the facts underlying her theory of a departure from the accepted standard of pediatric care with regard to the diagnosis and treatment of plaintiff's hypoglycemia and the existence of a causally related injury, which opinions are not refuted by any pediatric defense expert (see Perez v New York City Health & Hosps. Corp., 81 AD3d 448 [1st Dept 2011]).

Plaintiff also established the lack of substantial prejudice resulting from the delay as the hospital records, which evidence an investigation in the cause of the infant's condition, provide "an extensive paper trail' and preserve all of the essential facts relating to this claim" (Matter of Quiroz v City of New York, 154 AD2d 315, 316 [1st Dept 1989]; see also Young v New York City Health & Hosps. Corp., 90 AD3d 517, 518 [1st Dept 2011]). The claim that hospital personnel have left defendant's employ does not evidence substantial prejudice "absent a showing that the doctors are actually unavailable" (Greene v New York City Health & Hosps. Corp., 35 AD3d [*2]206, 207 [2006]). In addition, the absence of a reasonable excuse is not determinative (see Perez, 81 AD3d at 448; Matter of Dubowy v City of New York, 305 AD2d 320, 321 [2003]).

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

ENTERED: DECEMBER 11, 2012

CLERK