Jones v City of New York
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Jones v City of New York 2015 NY Slip Op 32376(U) November 6, 2015 Supreme Court, Bronx County Docket Number: 244222/14 Judge: Mitchell J. Danziger Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Nov 12 2015 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ------------------------------------------x ROBERT JONES, DECISION AND ORDER Plaintiff(s), Index Uo: 244222/14 - against THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF TRANSPORTATION, AND NEW YORK CITY HEALTH & HOSPITALS CORPORATION, Defendant (s) . -----------------------------------------x Petitioner reargument granted of moves this seeking Court's respondent NEW an order grantir.g order dated April YORK CITY renewal 15, HEALTH 2015, AND and which HOSPITALS CORPORATION'S (HHC) motion seeking vacatur of thi3 Court's prior order which, inter alia, granted petitioner's application leave to serve a belated notice of claim upon HHC. HHC' s motion, the Court also, for Upon granting after considering the merits of petitioner's application seeking leave to file a belated notice of claim upon HHC, denied petitioner's application. asserts that renewal of the Court's order is allow the Court to consider, inter alia, Petitioner war:~anted medical so as to evidence substantiating petitioner's incapacity following the accident and malpractice alleged, on the prior motion. which incapacity was medically unsupported Petitioner also seeks re<Lrgument of the Page 1 of 22 [* 2] FILED Nov 12 2015 Bronx County Clerk Court's order on grounds that the Court erred whfm it held that in support of his motion to file a late notice of claim upon HHC, petitioner failure. failed to establish a reasonable excuse for such Petitioner avers that such failure was not fatal to his application. Moreover, petitioner contends that the Court further erred in holding that (1) HHC had not acquired knowledge of the facts constituting his medical malpractice claim within 90 days of its accrual and; (2) that petitioner fail:d to establish the absence of any prejudice by the failure to file a timely notice of claim upon HHC. HHC opposes petitioner's motion for renewal insofar as it claims that the purportedly new medical eviden:e was readily available to petitioner and known to him upon th•' prior motion. Even if renewal is granted, HHC nevertheless contends that the evidence submitted in support of the same fails :o substantiate petitioner's incapacity during the relevant period - the 90 days subsequent to the accident alleged - and that ir. fact it calls his incapacity into question . HHC opposes reargument, averring that in holding that petitioner neither establish'd knowledge by HHC of the facts constituting the claim within 90 days of its occurrence or the absence of any prejudice to HHC by failing to file a timely notice of claim, the Court neither misapprehended the facts nor misapplied the law. Page 2 of 22 [* 3] FILED Nov 12 2015 Bronx County Clerk For the reasons that follow hereinafter, petitioner's motion is denied. The instant action is for alleged personal result of negligence and medical malpractice. injuries as a Within his notice of claim as against all other respondents except HHC, petitioner alleges that on September 5, 2013, he was caused to fall off his bicycle as a result of a potholes located upon traversed. th~ road which he As a result of the foregoing, petitioner alleges that respondents were negligent and that said negligE,nce caused his accident and the injuries that resulted therefrcm. Within his proposed notice of claim as against HHC, petitioner alleges that as result of the foregoing, Medical Center, an HHC he was medically facility, where he surgical procedures to treat his injuries. that the medical treatment he received tre~ted at Lincoln underwent several Petitioner alleges constitutes medical malpractice, which malpractice caused him further injury. On 15, April 2015, this Court denied petitioner's application seeking leave to interpose a belated notice of claim upon HHC. applicable Specifically, law, the held that while Court, after detailing the the alleged cl<:.im against HHC accrued on about September 5, 2013, petitioner did not serve his notices of claim upon HHC until September 8, 2014, almost a year later. Thus, this Court held that in order to attain the relief Page 3 of 22 [* 4] FILED Nov 12 2015 Bronx County Clerk requested, petitioner was required to establish (L) a reasonable excuse for his failure to serve a timely notice of claim; that HHC acquired constituting the actual claim knowledge within 90 of days the (2) essential it after facts or arose, a reasonable time thereafter; and (3) that the dela:r in filing the notice of claim would not substantially maintaining a defense on the merits Housing Authority 255 AD2d 41, 47 of New York, 117 AD2d 549, 550 prejudice (Jusino v HHC in New York City [1st Dept 1999] ; Gerzel v City [1st Dept 1986]; Morrison v New York City Health and Hospitals Corp., 244 AD2d 487, 487 [2d Dept 1997] ) . This Court concluded that petitioner's claim of physical incapacity as an excuse for his failure to file of claim was unsupported by medical evidence New York, 95 AD3d 744, 744 [1st Dept 2012] .i. timely notice (Ca sale v City of ["Petitioners failed to offer a reasonable excuse for not serving a tLmely notice of claim. Indeed, petitioners failed to submit any rredical evidence supporting their assertion that the injured petitioner's physical condition prevented them from timely serving a notice of claim."] ; Mandia v County of Westchester, 162 AD2 j 217, 218 [1st Dept 1990] ["Petitioners failed to submit a medic3.l affidavit by a physician or otherwise to substantiate their claim that the Page 4 of 22 [* 5] FILED Nov 12 2015 Bronx County Clerk delay in service was due to physical incapacity."]), such that his excuse was legally incognizable as a matter of law. The Court then held that the fact that HHC anj defendant THE CITY OF NEW YORK'S (the City) employees we'."e petitioner had been involved in an accident and aware t~eated that at HHC's hospital was insufficient to confer the requisite notice under the applicable case law because GML § 50-e(5) requires that a defendant acquire knowledge of the essential facts forming the basis of the negligence claim within 90 days of its occurrence, not simply knowledge that an accident/ incident c'ccurred City of New York, 256 AD2d 83, 84 19~ 1 8] [1st Dept (Kim v [Court held that knowledge that petitioner was injured when instructed by a teacher to move a large piece of plywood, was no: tantamount to "we~e notice of petitioner's claim that respondents negligent in not providing petitioner with the mechanical means to move the plywood and otherwise activities."]; in Chattergoon their v AD2d 141, 142 [1st Dept 1990] New supervision York City cf petitioner's Housing Auth., 161 ["What satisfies the statute is not knowledge of the wrong. What the statute exacts i3 notice of the claim (internal quotation marks omitted).]; Buljard at 450-451 [1st Dept 1986]) . Lastly, the Court concluded that since the ?rimary purpose of the notice of claim requirement is to permit the municipality Page 5 of 22 [* 6] FILED Nov 12 2015 Bronx County Clerk to conduct a prompt investigation of the facts and circumstances out of which a claim arose while information is ntill fresh and readily available (O'Brien v City of Syracuse, 54 NY2d 353, [1981]); Adkins v City of New York, 43 NY2d 346, 358 !50 [1977]) and that a delay is often prejudicial insofar as the passage of time often "prevent[s] an accurate reconstruction of the circumstances existing at the time the accident occurred" 205 AD2d 636, York, omitted]), it was 636 [2d Dept 1994] beyond cavil that (Vitale v City of New ~uotation [internal the nine-nonth marks delay in serving HHC with a notice of claim resulted in prejudice. Petitioner's Motion to Renew Petitioner's motion to renew is denied evidence which he urges the Court to consider, Court, is hardly new to him and could have been prior motion. Moreover, petitioner offers jnsofar as the while new to the s~bmitted no excuse failure to previously submit the same; fatal. Even under the now well accepted interests of on the for his such omi:ision generally justice standard, petitioner's new submission - affidavit3 from himself, a doctor and from a friend - fail to warrant rene~al because said affidavits would not alter the Court's prior decision. It is well settled that a motion to renew shall be based upon new facts not offered on the prior motion that would change the prior determination or shall Page 6 of 22 [* 7] FILED Nov 12 2015 Bronx County Clerk demonstrate that there has been a change in the law that would change the prior determination; and . shall contain reasonable justification for the failure to present such facts on the prior motion(CPLR § 2221 [e] [2], [3]). Thus, [a]n application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the Court. Renewal should be denied where a party fails to of fer a valid excuse for not submitting the additional facts upon the original application (Foley v Roche, 68 AD2d Healthworld Corporation v. 558, 568 Gottlieb, [1st Dept 1'179] ; 12 AD3d 278, 279 see also [1st Dept 2004]; Walmart Stores, Inc. v United States Fidelity and Guaranty 11 AD3d 300, Company, 301 [1st Dept 2004]; Linde•n v Moskowitz, 294 AD2d 114, 116 [1st Dept 2002]; Basset v Banda Sangsa Co., 103 AD2d 728, 728 [1st Dept 1984]. Renewal is a rerredy to be used sparingly and granted only when there exists a valid excuse for failing to submit the newly proffered facts on the original application (Beiny v Wynyard, 132 AD2d 190, 210 [1st Dept 1987]). In fact, renewal should be denied where the party fails to offer a valid excuse for not submitting the additional facts upon the original application (Burgos v City of New York, 178 Chelsea Piers Management v [1st Dept 2002]; Page 7 of 22 294 AD2d 177, Porest Electric [* 8] FILED Nov 12 2015 Bronx County Clerk Corporation, 281 AD2d 252, 252 [1st Dept 2001]), and "the remedy [is unavailable] where a party has proceeded on one legal theory on the assumption that what has been submitted is 3ufficient, and thereafter sought to move again on a different legal argument merely because he was unsuccessful upon the origin2l application" (Foley at 568). Notwithstanding the foregoing, courts hav= nevertheless carved an exception to the general rule and a mc,tior ' to renew will be granted even when all requirements for renewal are not met (Bank One v Mui, on other grounds 38 AD3d 809, by 95 811 A.D.3d 1147 [2d Dept Center, Brookhaven Memorial Hospital Medical [2d Dept 1997]). [2d Dept 2J07], As such, abrogated 2)12]; Strong v 240 AD2d 726, motions to renew can ~e 726 granted even when the newly offered evidence was in fact known and available to the movant but never provided to the Construction Corporation of New York v City of 374, 376 [1st Dept 2003]; 192 [1st Dept 2001] ; 2003]; U.S. Mejia :ourt Ne~ Trinidad v Lantigua, v Nanni, 307 AD2d :< 870, Reinsurance Corporation v Humphreys, [1st Dept 1994] ; J.D. Structures, Inc. v ( Tishman York, 280 AD2d AD3d 163, 163 [1st Dept 871 205 AD2d 187, Wa~'.dbum, 282 AD2d 434, 436 [2d Dept 2001] ; Sorto v South Nasaau CoJTUT unity Hospital, 273 AD2d 373, 373-374 [2d Dept 2000]; Cronwctll Equities v International Links Development Corp., 255 AD2d 354, 355 [2d Dept Page 8 of 22 [* 9] FILED Nov 12 2015 Bronx County Clerk 1998]; Goyzueta v Urban Health Plan, Inc., 256 AD:2d 307, 307 [2d Dept 1998] ; Liberty Mutual Insurance Company v Allstate Insurance 237 AD2d 260, Company, 262 [2d Dept 1997]) Renewal with new evidence previously known and available to movant from precedential case law and the statute - is, - a departure thus, warranted if the interests of justice and substantial substi.ntive fairness so dictate (Trinidad at 163; Mejia at 871; Metcalfe v City of New 223 AD2d 410, 411 [1st Dept 1996]; Scott v Brickhouse, 251 York, AD2d 397, 397 [2d Dept 1998]; Stated differently, a Strong at 726; motion to Goyzueta at 307). renew can be exercise of the court's discretion, granted, even when the new evidence proffered was readily available to the moving p<.rty, all requirements necessary for in the renewal have n<)t such that been met including the failure to proffer an excuse for failing to provide previously available and known evidence with the ?revious motion if considering the new evidence changes the outcome of the Court's prior decision (Trinidad at 163; J.D. Structures, Inc. at 436) In J.D. Structures, Inc., the court granted a renewal of its prior when renewal after considering previo·1sly evidence, but which while known to the movant, on the original motion (id. at 435-436). available it did not submit The court had initially denied plaintiff's motion seeking summary judgmen: on grounds of Page 9 of 22 [* 10] FILED Nov 12 2015 Bronx County Clerk an agreement according said relief because plaintiff include evidence relative dispositive on the motion to the debt owed, On renewal, (id). failed to such evidence pla:lntiff tendered evidence of the debt owed averring that the faiJ ure to provide the same on the prior motion was the mistaken l:elief that motion would be decided favorably without such <!vidence the (id.). The court granted renewal despite plaintiff's fa:.lure to submit previously available evidence, grounds that an excuse which was known to plaintiff on had been proffered for the failure to submit the same and because the new evidence, warranted judgment in plaintiff's favor (id.) . Simiarly, in Trinidad, the court granted renewal when the same was premised upon the submission of a previously known and available expert affidavit despite the fact that no excuse was proffered for the failur,= to previously submit the same (id. at 163). Here, merely arguing that the new facts were previously not before the Court, urges petitioner submits three affidavits, the Court to consider on renewal. which he Said affidavits - he avers - establish - under prevailing law - that his physical and mental incapacity prevented him from timely filjng a notice of claim against HHC. The first affidavit psychiatrist, who states, is from B. Andrew Farah (Farah), in pertinent part, as follows. Page 10 of 22 a On May [* 11] FILED Nov 12 2015 Bronx County Clerk 18, 2015, and a he examined petitioner and based on that examination review hospital, of petitioner's concludes malpractice that alleged, depressive disorder. as medical a records result petitioner is of uhile the HHC' s accident afflicted As a result the same, at with and major Farc.h opines, that from the date of the instant accident and contintLing for a year thereafter, disabled, petitioner said physically was disability preventing activities of daily living. him and psychiatrically from conducting his Farah further opines that petitioner was unable, due to a lack of the mental and emot.lonal capacity, to seek out an attorney for purposes of legal representation for a year after the instant accident. The second affidavit is from Jalal Bailey (Bailey), who states, in pertinent part as follows. Bailey resides in the same home to as petitioner, and subsequent petitic·ner' s assumed responsibility for petitioner's care. release from HHC' s hospital, with petitioner. accident Sir.ce petitioner's Bailey has spent se,,en hours a day As a result, Bailey asserts tha: he has had to provide petitioner with assistance in performing nearly all of his daily activities. depressed, has low Bailey further states tha: petitioner is energy, low motivation, crying spells. Page 11 of 22 an•i has frequent [* 12] FILED Nov 12 2015 Bronx County Clerk Petitioner also submits an affidavit, whereir. he states, pertinent part, as follows. in For the first two months following his discharge from HHC's hospital in September 2Cl3, because of his injuries, he seldom left his home; only leaving his bed for medical appointments currently, leaving assistance. and his physical home was therapy. very Thereafter, diffic11lt, and requiring As a result, petitioner states that h2 rarely leaves his home and does so only to visit his mother and his doctors. Based on the foregoing renewal is unwarranted for several reasons. First, contrary to petitioner's assert ion, the facts offered are not new and were clearly available to him on the prior motion. It is well settled that an application for leave to be renew must based upon additional material facts which existed at the time the prior motion was made, bu: were not then known to the party seeking leave to renew, made known to the court (Foley at 568; and, see therefore, a.~so not Healthworld Corporation at 279; Walmart Stores, Inc. at 301 [1st Dept 2004]; Linden at 116; Basset at 728). denied party where a fails to Even then, offer a rer.ewal should be valid excuse for not submitting the additional facts upon the origin'l.l application, meaning an explanation for ignorance with existence of the materials proffered on renewal Here, respect to the (Foley at 568). the affidavits proffered on renewal - particularly Farah Page 12 of 22 [* 13] FILED Nov 12 2015 Bronx County Clerk and Bailey's and his - merely establish petitioner's medical purported discharged from inability HHC's to leave hospital. his These home are condition after hardly he new was facts insofar as petitioner was aware of his medical ccndition on the prior motion and prior motion. to establish could have submitted medical that Bailey could have Accordingly, on the Similarly, to the extent that the affidavits seek petitioner was confined facts were obviously known to him. submitted :mpport his attested affidavit to h.Ls home, these Certainly, he was aware that the on to same, the and prior this, mot:.on could have as well. the facts submitted were not unknowr. to petitioner and his motion is denied for this reason alone Second, the instant motion is denied insofar as petitioner offers no excuse whatsoever for his failure to previously apprise :he Court about the facts upon which renewal is based. Lastly, while motions to renew can be granted even when the newly offered evidence was in fact movant to but never provided the known and a,;ailable court ( Tishin<tn to the Construction Corporation of New York at 376; Trinidad at 163; Mejia at 871; U.S. 192; Reinsurance Corporation at J.D. Structures, Inc. at 436; Sorto at 373-374; Cronwall Equities at 355; Goyzueta at 307; Liberty Mutual Insurance Company at 262) , such exception warrants renewal only when the interest of Page 13 of justice 22 so warrant, meaning [* 14] FILED Nov 12 2015 Bronx County Clerk that considering the new evidence changes the court's prior decision (Trinidad at 163; J.D. 436) . Here, evidence renewal that incapacity in is sought petitioner's during the year to have view outcome of Strw~tures, the :ourt establishe:; following his the Inc. at consider his medical accident. Such incapacity, petitioner avers, preventing him from :imely filing a notice of claim. Thus, whereas this Court previously held that petitioner's excuse for failing to file a timely 11otice of claim was unreasonable in that the excuse was medical and unsubstantiated, petitioner now seeks to have the Court consider Farah's affidavit, averring that same incapacity for the relevant period. establish=s medical Petitioner a::gues that this evidence requires the Court to reverse its prior issue. his ~olding on this This contention is without merit. While it is true that when the reason for the failure to timely file a notice of claim is physical ir.capacity, such incapacity must be corroborated by medical eviden:e establishing the same (Casale at 744; Mandia at 218), it is also well settled that whether the excuse proffered is reasonable is within the court's discretion and court a is free reasonableness based on the record as a whole Sarti v City of New York, [Petitioner's 268 AD2d 285, application for leave Page 14 of to 22 285 file to determine Casale at 744; llst Dept a late 2000] notice of [* 15] FILED Nov 12 2015 Bronx County Clerk claim denied when her reason for the failure to ti·nely file was a lacked of knowledge of her son's Courl: death. rejected her excuse insofar as "nowhere [did] petitioner actually describe her attempts to investigate."]) petitioner's renewal. new To Here, it is the conflict created by affidavits be sure, which while dooms he submits establishing that petitioner was unable, mental and emotional capacity, to application Far~h's due to a seek purposes of legal representation for a accident, his out an for affidavit lack of the attorney year after the for instant the foregoing is belied by petitioner' n own affidavit wherein he states that despite his injuries, after he left the hospital, he left his home to visit his doctors and for physical therapy. Accordingly, here, petitioner's reasonable excuse for failing to file a timely notice of claim is physLcal and mental incapacity, the same purportedly preventing him f~om leaving his home, and, thus, preventing him from retaining counsel. However, the record evinces that petitioner was not tota:.ly confined to his home and thus, could have retained counsel during the 90 days following his accident. new evidence, Accordingly, even with the purportedly petitioner's excuse is nevertheless unreasonable, warranting adherence to the Court's prior decision on this issue and, therefore not warranting renewal justice. Page 15 of 22 in the interests of [* 16] FILED Nov 12 2015 Bronx County Clerk Petitioner's Motion to Reargue Petitioner's motion to reargue is hereby der.ied insofar as it is untimely. establish that Moreover, petitioner nevertheless fails to in denying his application for le3.ve to serve a late notice of claim upon HHC the Court misapprehionded the facts and/ or misapplied the law. In fact, assertion, failed to petitioner warranting the contrary t:o petitioner' s establish any of the leave requested as promulgated by GML elements § 50-e (5) and the relevant case law. CPLR § 2221 (d) (1), prescribes the reargument of a prior decision on the merits and states that such motion shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion. Accordingly, [a] motion for reargument, addressed tc the discretion of the Court, is designec to afford a party an opportunity tc establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principal of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very question< previously decided (Foley Fosdick v Roche, v Town 68 AD2d 558, of Hemstead, 567 126 NY Page 16 of [1st 651, 22 Dept 1579]; 652 ['..891] see also, Vaughn v [* 17] FILED Nov 12 2015 Bronx County Clerk Veolia Transp., Inc., 117 AD3d 939, 939 [2d Dept 2014]). because reargument is not a vehicle by which a Thus, can get a ~arty second bite at the same apple, a motion for reargunent preludes a litigant from advancing new arguments or taking new positions which were not previously raised in the original m~tion (Foley at 567) A motion to reargue, must be made within 30 days after service of a copy of the underlying order with notice of entry (CPLR § 222l[d] [3]; Perez v Davis, 8 AD3d 1086, 1087 [4th Dept 2004]; Pearson v Goard, 290 AD2d 910, 910 [3rd Dept 2002]) Here, the instant motion must be denied as u:~timely. To be sure, HHC served a copy of this Court's prior order dated April 15, 2015, with Notice of Entry upon petitioner on April 27, 2015. However, the instant motion was not served upon all parties until July 6, 2015, more than 60 days after petioner 11as served with this Court's order. "A motion is an application for an order. A motion on notice is made when a notice of the motLon or an order Thus, a rrotion is deemed to show cause is served" (CPLR made when it is served, and not when it is filed Casale, Inc., 44 AD3d 572, 573 38 AD3d 287, 288 § 2211) (Aqeel v Tony [1st Dept 2007]; Gazes v Bennett, [1st Dept 2007]) . Here, then, v;here reargument must be sought within 30 days of service of the underlying order with notice of entry (CPLR § 2221 [d] [3]; Page 17 of 22 Perez at 1087; Pearson [* 18] FILED Nov 12 2015 Bronx County Clerk at 910), the Contrary to instant motion is petitioner's untimely and, assertion, while Court did issue an order on May 20, at 2015, m11st be h:.s denied. behest, the clarifying its prior order, it is clear that the order from which rearg1ment is sought is the order issued in April. This is because the Court's most recent order was in no way substantive. Notwithstanding the foregoing, be denied neither on the merits misapprehended because the reargument wo-1ld nonetheless it facts is nor clear ·:hat the Court misapplied the law. Saliently, petitioner avers that the Court erred in denying his application to file a belated notice of claim upon HHC because held - at least in petitioner's view - that petitioner's failure to establish a reasonable excuse for the failure to timely file a notice of claim was dispositive. This is clearly a misreading of the Court's decision since the Court found that petitioner failed to establish any of the elements required for allowing the belated filing of a notice of claim. Court agrees, purposes of as it must, leave to purposes of In fact, the with petitioner's cont=ntion that for file element as prescribed by GML a late notice of claim, no single § 50-e (5), is by itse,lf dispositive, least of all a reasonable excuse for the failure t.o timely file a notice of claim (Cicio v City of New York, Dept 1983] ["In a series of cases, Page 18 of 98 A)3d 38, 39 [1st this court has emphatically 22 [* 19] FILED Nov 12 2015 Bronx County Clerk rejected such arguments, holding that the statutor:r amendments to subdivision 5 of section 50-e of the General MunicLpal Law are to be liberally construed and that the absence excuse is not necessarily fatal. Rather, all of an acceptable factors are relev,~nt to be considered, including the prejudice to the and m~nicipality whether it obtained actual knowledge within the 911-day statutory period or shortly thereafter."] ; 35 AD3d 619, 620 Suffolk, Here, however, see also Rusj1 v County of [2d Dept 2006]). not only did the Court find ·:hat petitioner failed to establish a reasonable excuse for the failure to timely file a notice of claim, but it also held that he failed to establish that HHC acquired notice of the facts CJnstituting the claim within 90 days of the alleged malpra,:tice or soon thereafter and that HHC was not prejudiced by the delay in filing a timely notice of claim. Notably, petitioner argues that the Court erred in holding that HHC did not acquire knowledge of the facts constituting his medical malpractice claim despite the fact that HHC' s alleged New York York don't hospital provided the (22 AD3d 717 avail him. to the He then cites cases like 1iibbs v City of malpractice. (189 AD2d 632 treatment givi :i.g rise [2d Dept 2005]) [1st Dept Unlike, 1993]), Gibbs and Ayala v which are and Ayala, Page 19 of 22 inapposite and where claims were premised on motor vehicle accidents City of New because those the Court's [* 20] FILED Nov 12 2015 Bronx County Clerk held that the municipal defendants acquired actua.l knowledge of the facts underlying the claims because its :mployees involved in the accidents alleged (Gibbs at 719 I were "In this case, HHC acquired timely actual notice of the underlying facts of the claim because the driver and attendants of :he ambulance, employees of Coler-Goldwater Hospital, an HHC facility, performed the acts complained of. Furthermore, the progresn record of the hospital plaintiff's injured contained when the the driver of the allegation ambulance that she was b::aked and the wheelchair in which she was seated moved forward. Thus, HHC was also aware that the plaintiff was claiming that the ambulance driver and its attendants were at fault in the ha::>pening of this accident" (internal citations omitted) . ] ; Jcyala at 633 ["Respondent HHC had actual knowledge of the ev1mts concerning the claim because the HHC ambulance driver performed the acts complained of. HHC was on notice of surrounding the collision because the driver, first-hand knowledge of them. Moreover, the circumstances it:i employee, had the polic: report of the incident reads in part that "Driver of Vehicle :: stated he had the green light when above ambulance had struck him". The police officer's notations reveal that there was an al:.egation by Mr. Ayala that he was properly proceeding through a green light when the ambulance struck him. Thus, Page 20 of HHC 22 was also aware that [* 21] FILED Nov 12 2015 Bronx County Clerk petitioner Ayala was assigning fault to the ambul;mce driver. In addition, HHC does not deny that it was aware of the underlying facts from its omitted).]), Williams v own here, accident reports" (inte::nal citations where the allegation is medic<1l malpractice, Nassau County Med. Ctr. [6 NY3d s:11 [2006] ["We disagree with plaintiff's suggestion that because defendants have medical records, they necessarily have actual kr.owledge of the facts constituting the claim. Merely having or cr:ating 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 plaintiff during the birth process."] ) any controls. injury on Accordingly, that petitioner received medical treatment at HHC's hospital and records were requisite created knowledge evincing upon HHC. the same does not To hold confer otherwise, would, the as posited by HHC turn the law on its head and obviate the need for a notice of claim requirement in medical malpractice cases. Based on the foregoing - that HHC had no k:10wledge of the facts constituting the serve a claim until petitioner Eought belated notice of claim against it, leave to scme nine months The Court. also properly after the events alleged transpired. held that petitioner failed demonstrate the absence of prejudice. Page 21 of 22 [* 22] FILED Nov 12 2015 Bronx County Clerk Thus, it is clear that the Court neither misapprehend the facts nor misapplied the law. It is hereby ORDERED that HHC serve a copy of this Order with Notice of Entry upon all parties within thirty days (30) her=of. This constitutes this Court's decision and Orjer. Dated : ~°l/ 1 iFf, 2015 Bronx, New York MITCHELL J. DP<NZIGER, J.S.C. Page 22 of 22
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