Basualdo v Guzman

Basualdo v Guzman 2013 NY Slip Op 06979 Decided on October 29, 2013 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 October 29, 2013
Tom, J.P., Andrias, Saxe, Freedman, Richter, JJ.
10887 17232/05

[*1]Cecilia Basualdo, an Infant by Her Mother and Natural Guardian, Alejandra Espindola, et al., Plaintiffs-Appellants,

v

Eduvigis M. Guzman, et al., Defendants, New York City Health and Hospitals Corp. (Lincoln Hospital), Defendant-Respondent.




Fitzgerald & Fitzgerald, P.C., Yonkers (Mitchell Gittin of
counsel), for appellants.
Michael A. Cardozo, Corporation Counsel, New York (Susan P.
Greenberg of counsel), for respondent.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 11, 2012, which denied plaintiffs' motion to deem their previously served notice of claim timely, nunc pro tunc, and granted the cross motion of defendant New York City Health and Hospitals (HHC) for dismissal of the complaint, unanimously affirmed, without costs.

In this medical malpractice action in which the infant plaintiff seeks to recover for injuries allegedly caused by HHC's failure to properly monitor and screen her for exposure to lead, the court properly considered the pertinent statutory factors and exercised its discretion in denying plaintiffs' motion (General Municipal Law § 50—e[5]).

While plaintiffs' expert interpreted the Lincoln Hospital Pediatric Clinic's records to support their theory of liability, the records do not, on their face, evince that the hospital deviated from good and accepted medical practice, and thus do not provide HHC with timely actual knowledge of the underlying claim (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537, [2006]; Arauz v New York City Health & Hosps. Corp. [Lincoln Med. Ctr.], 101 AD3d 558, 559 [1st Dept 2012], lv denied __ NY3d __, 2013 NY Slip Op 85345 [2013]; Plaza v New York Health & Hosps. Corp. [Jacobi Med. Ctr.], 97 AD3d 466 [1st Dept 2012], affd 21 NY3d 983 [2013]). There is no support for plaintiffs' argument that the infant's blood lead level of 7 ug/dL at nine-months old was "ominous," as that level is considered normal (see 10 NYCRR § 67-1.1[e]). Nor is the fact that plaintiff mother denies receiving any information concerning the dangers of lead relevant to the issue of whether the records provided HHC with notice.

Plaintiff mother's ignorance of the law is not a reasonable excuse (see Plaza, 97 AD3d at 468). Moreover, no excuse was offered for the additional delay of five years between the filing
of the notice of claim and the making of the instant motion (id.). [*2]

Since, in reaching his conclusions concerning Lincoln's treatment of the infant plaintiff, plaintiffs' expert relies upon the mother's testimony, which contradicts the actual records, this is not a case that will turn mainly on records rather than witnesses' memories (cf. Leeds v Lenox Hill Hosp., 6 AD3d 232, 233 [1st Dept 2004]). Thus, plaintiffs' have failed to meet their burden on the motion of establishing a lack of substantial prejudice resulting from the delay (see Williams, 6 NY3d at 539; Cartagena v New York City Health & Hosps. Corp., 93 AD3d 187, 190, 192 [1st Dept 2012]).

We have considered plaintiffs' remaining arguments and find them unavailing.

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

ENTERED: OCTOBER 29, 2013

CLERK