Matter of Jadusingh v. New York City Health & Hosps. Corp.Matter of Jadusingh v. New York City Health & Hosps. Corp.
Wingate, Russotti, Shapiro & Hаlperin, LLP, New York, NY (Kathleen P. Kettles, Philip Russotti, and Veronica K. Sewnarine оf counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York, NY (Scott Shorr and Ingrid R. Gustafson of counsel), for respondent.
DECISION & ORDER
In a proceeding pursuant to
ORDERED that the order is affirmed, with costs.
On August 25, 2012, the petitioner gave birth, pre-term, to a child by cesarean section at Kings County Hospital Center (hеreinafter the hospital). The child was admitted to the neonatal intensivе care unit, from which he was discharged on September 3, 2012, in stable condition. Several months later, the child was diagnosed at a different hospital with developmental delays. In October 2013, the child was diagnosed with
“In determining a motion fоr leave to serve a late notice of claim or to deem a late notice of claim timely served nunc pro tunc, the court must cоnsider all relevant circumstances, including whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable timе thereafter, (2) the claimant was an infant at the time the claim arosе and, if so, whether there was a nexus between the claimant‘s infancy and the delay in service of a notice of claim, (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the subsequent delay in seeking leave to servе a late notice of claim, and (4) the public corporation wаs substantially prejudiced by the delay in its ability to maintain its defense on the merits” (Lyles v New York City Health & Hosps. Corp., 121 AD3d 648, 649; see
Here, the evidence submitted in support of the petition failed to establish that HHC acquired actual knowledge of the essential facts constituting the claim within 90 days after thе claim arose or a reasonable time thereafter by virtue of the hospital records relating to the child‘s delivery and follow-up carе (see Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d at 676-677; Williams v Nassau County Med. Ctr., 6 NY3d at 537; Matter of Smith v Westchester County Health Care Corp., 165 AD3d 1150; Plaza v New York Health & Hosps. Corp. [Jacobi Med. Ctr.], 97 AD3d 466, 468-469, affd 21 NY3d 983). Moreover, the petitioner failed to satisfy her initial burden of showing that HHC would not be substantially prejudiced in maintaining a defense on the
The petitioner also did not demonstrate a reasonable excuse for the failure to timely serve a notice of claim and the delay in seeking leave to deem the late notice of claim timely served nunc pro tunc (see Lyles v New York City Health & Hosps. Corp., 121 AD3d at 649; Plaza v New York Health & Hosps. Corp. [Jacobi Med. Ctr.], 97 AD3d at 468; Matter of Rios v Westchester County Healthcare Corp., 32 AD3d 540, 541). Accordingly, we agree with the Supreme Court‘s determination to deny the petition.
CHAMBERS, J.P., SGROI, BARROS and IANNACCI, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court