Matter of Castro

[*1] Matter of Castro 2009 NY Slip Op 50574(U) [23 Misc 3d 1104(A)] Decided on March 18, 2009 Supreme Court, Queens County Flug, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 18, 2009
Supreme Court, Queens County

IN THE MATTER OF THE APPLICATION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM ON BEHALF OF Jose C. Castro BY HIS WIFE AND PROPOSED GUARDIAN MARIA DE LOS ANGELES M. CASTRO a/k/a ANGELINA M. CASTRO and MARIA DE LOS ANGELES M. CASTRO a/k/a ANGELINA M. CASTRO individually.



26559 2008

Phyllis Orlikoff Flug, J.

Upon the foregoing papers it is ordered that the motion is determined as follows:

Petitioner Jose C. Castro was brought, unconscious, to the emergency room of the Elmhurst Hospital Center on August 30, 2007, having fallen down a flight of stairs. CAT scans indicated intracranial bleeding, but no surgery was performed. On September 14, 2007, he was transferred, still comatose, to a chronic care facility, where he remains. Castro woke from his coma in October, 2007. In their supporting papers, the Castros submitted an affidavit of a medical expert in which the expert avers that Mr. Castro has been physically and mentally incapacitated since his treatment at the hospital, and that the hospital's failure to surgically intervene to relieve cranial pressure constituted malpractice.

Respondent New York City Health & Hospitals Corporation (HHC) does not oppose the motion on the merits. However, it requests either that relief be held in abeyance pending appointment of a guardian for Mr. Castro or that the motion be denied without prejudice to renewal upon such appointment.

Turning first to respondent's opposing papers, HHC did not apply for appointment of a guardian ad litem in accordance with CPLR 1202 (see Trippe v Trippe, 35 AD2d 944 [1970]; Bochina v Schlau, 125 Misc 2d 682 [1984]). Furthermore, no prejudice accrues either to respondent or Mr. Castro by commencement of suit prior to [*2]appointment of a guardian (see generally Tudorov v Collazo, 215 AD2d 750 [1995]). The court notes that in the absence of a judicial declaration of incompetence made in accordance with the statutory processes provided therefore, Mr. Castro may sue in his own name (see Sengstack v Sengstack, 4 NY2d 502 [1958]; Bryant v Riddle, 259 AD2d 399 [1999]; Mitsinicos v New Rochelle Nursing Home, 258 AD2d 630 [1999]).

As a condition precedent to suit against a public corporation, General Municipal Law § 50-e(1) requires that a notice of claim be filed within 90 days after the claim arises. Pursuant to General Municipal Law § 50-e(5), a court may extend such 90 day period, but not beyond the statute of limitations for bringing such suit. The section directs the court, in exercising its discretion, to consider, "in particular, whether the public corporation ... acquired actual knowledge of the essential facts constituting the claim" within the 90 days or within a reasonable time thereafter. It is also directed to consider "all other relevant facts and circumstances" including, among other things, whether the claimant was an infant, or mentally or physically incapacitated, and whether the delay would substantially prejudice the public corporation in maintaining its defense on the merits.

Although "merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on plaintiff" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]); see also Matter of Haeg v County of Suffolk, 30 AD3d 519 [2006]), HHC's failure to object to service of the late notice demonstrates that it will not be substantially prejudiced in defense of the malpractice action. Moreover, considering what appears to be Mr. Castro's traumatic injuries, and the physical and emotional drain upon his family in dealing with, and attending to, his substantially altered physical and mental status, the delay in bringing suit is both reasonable and understandable (see Matter of Ramirez v County of Nassau, 13 AD3d 456 [2004]; Matter of Staley v Piper, 285 AD2d 601 [2001]).

Accordingly, petitioners' motion for leave to serve a late notice of claim is granted. The late notice of claim which was served by petitioners on November 13, 2008 in the form annexed as Exhibit 1 to their moving papers is deemed timely upon service of this order with notice of entry.

Dated: March 18, 2009J.S.C.