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Ola v. New York City Health and Hospitals Corp.3/8/2002
This opinion is uncorrected and will not be published in the Official Reports.
Municipal Corporations--Notice of Claim--Late Notice
(*1)
DECISION & ORDER
Petitioners move pursuant to General Municipal Law §50-e, for leave to file a late (*2)Notice of Claim and for an order seeming the Notice of Claim served upon respondent on January 14, 2002 to have been properly and timely served nunc pro tunc; petitioners also move for an order directing the respondent to turn over any and all medical records in its possession relating to its care and treatment of petitioner, at a cost of .75 cents per page. Respondent New York City Health and Hospitals Corporation ("NYCHHC") opposes.
Petitioners' claim of medical malpractice is based on the right brachial plexus stretch injury the infant sustained as a result of a negligent and improper performance of her delivery on October 2, 2001; they claim that NYCHHC was negligent, careless and departed from accepted medical practice in the pre-delivery, delivery, and post- delivery care of the infant. The events leading up to the delivery and injury, including the history of the mother's treatment, are set forth more fully in the Petition and the accompanying attorney affirmation.
Briefly, petitioners claim that the mother was advised in the delivery room that the infant could not move her right arm, and that a physician advised the mother that the right arm was merely sprained and that the infant should regain full use of her arm. The mother claims that at discharge the physician releasing the infant advised her that she should bring the infant to the Pediatric Rehab Clinic within the next few days for follow up, and at the clinic was told that the infant required occupational therapy three times a week.. At no time was she told by a NYCHHC physician or at the Clinic that the condition was permanent or serious. About a month after the infant's birth, the mother received a form from the Clinic that stated the words "Erb's Palsy", and it was only at that time that she learned that the (*3)daughter's condition had a name. While she knew at that point that the condition was not improving, the mother states that due to the care of her daughter's condition, her care of her three small children and her full time job , the first time she was able to consult with an attorney about her possible claim was January 12, 2002.
The Notice of Claim was served on January 14, 2002, approximately 14 days past the 90 day time period.
Petitioners argue that the Notice of Claim should be deemed timely served because there is no prejudice to the respondent, and they have a reasonable excuse for the delay. Petitioners further argue that as NYCHHC has the records (which petitioners allege have not been turned over despite a proper request for same), NYCHHC had actual knowledge or notice of the claim.
Respondent opposes, arguing that petitioner fail to set forth an acceptable excuse for the delay, as the parents were told that the arm was sprained, and therefore knew of the injury, and that the mother's inability to find the time to consult sooner with the attorney should not permit her to benefit and yet prejudice NYCHHC. Respondent does not, however, state (much less support) this conclusory assertion of prejudice; respondent also does not address the issue of actual notice.
General Municipal Law §50-e(1)(a) requires a complainant to serve a notice of claim on a municipal entity within 90 days after the claim arises.
Pursuant to GML §50-e(5), the court in its discretion may extend the time to serve a notice of claim. An application to serve a late notice of
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