Torres v New York City Health & Hosps. Corp.

Torres v New York City Health & Hosps. Corp. 2012 NY Slip Op 08451 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.
8766 16105/07

[*1]Oscar Torres, etc., Plaintiff-Appellant,

v

New York City Health and Hospitals Corporation (Lincoln Hospital), Defendant-Respondent.




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

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 5, 2010, which denied plaintiff's motion to deem his previously served notice of claim timely, nunc pro tunc, and granted defendant's cross motion for dismissal of the complaint, unanimously affirmed, without costs.

In this action for medical malpractice, the infant plaintiff seeks to recover for injuries he suffered after being born extremely premature, at 25-weeks gestation, weighing only one pound and nine ounces. The motion court properly exercised its discretion in denying plaintiff's motion upon consideration of the pertinent statutory factors (General Municipal Law § 50-e[5]). The infant plaintiff's mother's excuse that she was unaware that she had a malpractice claim until more than six years after plaintiff's birth 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 proffered for the additional delay of more than three years (almost 10 years after the birth), between the filing of the notice of claim and the time the instant motion was made.

Further, since the infant plaintiff's condition and prognosis are consistent with his prematurity, the hospital records do not suggest any injury attributable to malpractice (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; Rodriguez v New York City Health & Hosps. Corp. [Jacobi Med. Ctr.], 78 AD3d 538, 539 [1st Dept 2010], lv denied 17 NY3d 718 [2011]; Velazquez v City of New York Health & Hosps. Corp., 69 AD3d 441, 442 [1st Dept 2010], lv denied 15 NY3d 711 [2010]).

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 11, 2012

CLERK