Bayo v. Burnside Mews Associates

Nov 29, 2007
Versions:45 A.D.3d 495
846 N.Y.S.2d 57

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered December 27, 2005, which granted plaintiffs’ motion for an order deeming the notice of claim timely served upon defendants-appellants, and denied appellants’ cross motion to dismiss the complaint for failure to file a timely notice of claim, unanimously affirmed, without costs.

The court providently exercised its discretion in deeming the notice of claim timely served upon appellants (General Municipal Law § 50-e [5]). Although the stated ignorance of the law by infant plaintiff‘s mother is not a reasonable excuse for the failure to have served a timely notice of claim (see Harris v City of New York, 297 AD2d 473 [2002], lv denied 99 NY2d 503 [2002]), infant plaintiff should not be deprived of a remedy, where, as here, the record evidence demonstrates that appellants’ possession of the medical records sufficiently constituted actual notice of the pertinent facts, and that they would not be substantially prejudiced by the delay (see De La Cruz v New York City Health & Hosps. Corp., 13 AD3d 130 [2004]). Plaintiffs submitted affirmations from a physician establishing that the medical records, on their face, evinced that appellants failed to provide infant plaintiff with preventive care against lead poisoning (compare Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]), and appellants’ argument that the delay would prejudice them in defending the action because of the inability to reconstruct events and conversations is unconvincing (Moody v New York City Health & Hosps. Corp. [Renaissance Health Care Network], 29 AD3d 395 [2006]; Matter of McMillan v City of New York, 279 AD2d 280 [2001]).

Concur—Lippman, P.J., Nardelli, Buckley, Gonzalez and Sweeny, JJ.