Matter of Meacham v New York City Health & Hosps. Corp.

Matter of Meacham v New York City Health & Hosps. Corp. 2010 NY Slip Op 07608 [77 AD3d 570] October 26, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 15, 2010

In the Matter of Barbara Meacham, Appellant,
v
New York City Health & Hospitals Corporation, Respondent.

—[*1] Pollack, Pollack, Isaac & De Cicco, New York (Brian J. Isaac of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Drake A. Colley of counsel), for respondent.

Order, Supreme Court, New York County (Douglas E. McKeon, J.), entered November 2, 2009, which, upon reargument, adhered to a prior order and judgment (one paper), same court (Sheila Abdus-Salaam, J.), entered April 14, 2009, unanimously reversed, on the law and the facts, without costs, and petitioner's application for leave to serve a late notice of claim granted. Appeal from the April 14, 2009 order and judgment, which denied petitioner's application and dismissed the proceeding, unanimously dismissed, without costs, as academic.

The lack of a reasonable excuse for failing to serve a timely notice of claim is not determinative (General Municipal Law § 50-e [5]; see e.g. Pearson v New York City Health & Hosps. Corp. [Harlem Hosp. Ctr.], 43 AD3d 92 [2007], affd 10 NY3d 852 [2008]; Bertone Commissioning v City of New York, 27 AD3d 222, 224 [2006]). In any event, the delay here was short: petitioner moved less than a month after the statutory deadline for serving a wrongful death claim expired.

General Municipal Law § 50-e (5) requires the court to consider, "in particular, whether the public corporation or its attorney . . . acquired actual knowledge of the essential facts constituting the claim within [the statutory deadline] or within a reasonable time thereafter." As early as June 2008, petitioner had tried to serve a notice of claim for pain and suffering; the facts giving rise to that claim were the same as those giving rise to the instant wrongful death claim (see Ramos v New York City Tr. Auth., 60 AD3d 517, 520 [2009]). Furthermore, as early as November 2008, petitioner had served a doctor's affidavit stating that the hospital records, on their face, evinced departures from the standard of care (see Lisandro v New York City Health & Hosps. Corp. [Metropolitan Hosp.], 50 AD3d 304 [2008], lv denied 10 NY3d 715 [2008]; see also Talavera v New York City Health & Hosps. Corp., 48 AD3d 276, 277 [2008]). Concur—Andrias, J.P., Nardelli, Moskowitz, DeGrasse and RomÁn, JJ.