Matter of Hernandez v County of Suffolk

Matter of Matter of Hernandez v County of Suffolk 2011 NY Slip Op 09643 Decided on December 27, 2011 Appellate Division, Second 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 27, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
DANIEL D. ANGIOLILLO
ARIEL E. BELEN
PLUMMER E. LOTT
SHERI S. ROMAN, JJ.
2010-11929
2011-03649
(Index No. 31524/10)

[*1]In the Matter of Briseida Felipe Hernandez, etc., appellant,

v

County of Suffolk, et al., respondents.




Rappaport Glass Greene & Levine, Hauppauge, N.Y.
(Matthew Zullo of counsel), for appellant.
Christine Malafi, County Attorney, Hauppauge, N.Y.
(Christopher A. Jeffreys of counsel), for
respondents.


DECISION & ORDER

In a proceeding pursuant to General Muncipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioner appeals from (1) an order of the Supreme Court, Suffolk County (Cohen, J.), dated November 10, 2010, which denied the petition, and (2) an order of the same court dated March 22, 2011, which denied their motion for leave to reargue the petition.

ORDERED that the appeal from the order dated March 22, 2011, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated November 10, 2010, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

The Supreme Court did not improvidently exercise its discretion in denying the petition for leave to serve a late notice of claim for the alleged medical malpractice. The mere fact that the respondents were in possession of the infant's medical records did not, without more, establish that the respondents had actual knowledge of a potential injury. "Where, as here, there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 537; see Arias v New York City Health & Hosps. Corp. [Kings County Hosp. Ctr.], 50 AD3d 830, 832; Bucknor v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811). Furthermore, the petitioner failed to present a satisfactory excuse for the delay in seeking leave to serve a late notice of claim (see Bucknor v New York City Health & Hosps. Corp. [Queens Hosp. Ctr.], 44 AD3d 811; Matter of Pico v City of New York, 8 AD3d 287, 288; Matter of Lodati v City of New York, 303 AD2d 406, 407). Finally, the petitioner failed to demonstrate that the respondents had not been prejudiced by the delay (see Casias v City [*2]of New York, 39 AD3d 681).
SKELOS, J.P., ANGIOLILLO, BELEN, LOTT and ROMAN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court