Matter of Rosenblatt v. New York City Health & Hosps. Corp.Matter of Rosenblatt v. New York City Health & Hosps. Corp.
Ordered that the order is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof denying that branch of the petition which was for leave to amend the notice of claim to substitute the public administrator as the party claimant and dismissing the proceeding with respect to that issue, and substituting therefor a provision granting that branch of the petition; as so modified, the order is affirmed, without costs or disbursements.
On October 16, 2013, the petitioner‘s decedent died at the respondent‘s hospital in Kings County. Almost one year later, on October 15, 2014, the petitioner, who was then the proposed public administrator of the decedent‘s estate, served a notice of claim on the respondent alleging conscious pain and suffering and wrongful death. On November 7, 2014, the petitioner was appointed as administrator of the decedent‘s estate. By notice of petition dated December 18, 2014, the petitioner sought leave to serve a late notice of claim or to deem the late notice of claim timely served nunc pro tunc, and to amend the notice of claim to substitute the petitioner, in her capacity as the appointed public administrator of the decedent‘s estate, as the party claimant. The Supreme Court denied the petition and dismissed the proceeding.
It is undisputed that the October 15, 2014, notice of claim was timely with respect to the wrongful death claim, as it was served within 90 days of the appointment of the public administrator of the decedent‘s estate (see
Furthermore, the Supreme Court providently exercised its discretion in denying that branch of the petition which was for leave to serve a late notice of claim with respect to the claim alleging conscious pain and suffering or to deem so much of the late notice of claim as alleged conscious pain and suffering timely served nunc pro tunc. Under
Contrary to the petitioner‘s contention, the respondent did not acquire actual knowledge of the essential facts constituting the claim to recover damages for conscious pain and suffering within the requisite 90-day period or a reasonable time thereafter by virtue of its possession of hospital records relating to the decedent‘s death (see Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d at 677; Williams v Nassau County Med. Ctr., 6 NY3d at 537). A medical provider‘s mere possession or creation of medical records does not establish that it had “actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on” the claimant (Wally G. v New York City Health & Hosps. Corp. [Metro. Hosp.], 27 NY3d at 677 [internal quotation marks omitted], citing Williams v Nassau County Med. Ctr., 6 NY3d at 537; see Hudson v Patel, 146 AD3d 758 [2017];
However, the Supreme Court improvidently exercised its discretion in denying that branch of the petition which was for leave to amend the October 15, 2014, notice of claim to substitute the appointed public administrator as the party claimant. The respondent was timely notified of the wrongful death claim which the public administrator sought to assert, since the petition was made within 90 days of the appointment of the public administrator, the wrongful death claim was based upon the same facts set forth in the October 15, 2014, notice of claim served by the proposed public administrator, and there was no prejudice to the respondent (see
Rivera, J.P., Roman, Miller and Duffy, JJ., concur.