Moody v. New York City Health & Hospitals Corp.

May 16, 2006
Versions:29 A.D.3d 395
815 N.Y.S.2d 67

Order, Supreme Court, New York County (Eileen Bransten, J.), entered September 16, 2004, which, to the extent appealed from as limited by the briefs, granted the infant plaintiff‘s motion for leave to serve a late notice of claim, unanimously affirmed, without costs.

The court did not improvidently exercise its discretion in granting permission to file a late notice of claim after considering such factors as plaintiff‘s infancy, whether there was a reasonable excuse for the delay, whether the municipal defendant acquired actual knowledge of the pertinent facts constituting the claim, and whether the delay prejudiced defendant‘s ability to defend against the claim (General Municipal Law § 50-e [5]; Ali v Bunny Realty Corp., 253 AD2d 356, 357 [1998]). Under the circumstances, defendant‘s possession of the medical records sufficiently constituted actual notice of the pertinent facts, and the claim that the delay would be prejudicial because of the inability to reconstruct events and conversations was insufficient (Matter of McMillan v City of New York, 279 AD2d 280 [2001]).

We have considered defendant‘s remaining arguments and find them without merit. Concur—Saxe, J.P., Marlow, Sullivan, Gonzalez and Malone, JJ.