Matarrese v. New York City Health & Hospitals Corp.

OPINION OF THE COURT

Balletta, J.

Although the determination of whether to grant an application for leave to serve a late notice of claim is generally left to the sound discretion of the trial court (see, Matter of Kyser v New York City Hous. Auth., 178 AD2d 601; Matter of Gruber v City of New York, 156 AD2d 450), we find that under the circumstances of this case, the trial court improvidently exercised its discretion in granting the petitioner’s application. The petitioner offered no explanation for his eight-year delay in making the application, and there were no other factors present which would have overcome the prejudice suffered by the appellant as a result of the delay. The infancy of the claimant, in and of itself, does not automatically justify the serving of a late notice of claim.

In this case, it is alleged that the infant claimant sustained, inter alia, brain damage and cerebral palsy as a result of the negligence of physicians employed at the appellant’s Coney *9Island Hospital. The alleged negligence occurred at the time of the infant claimant’s birth in August 1985. Eight years later in July 1993, the petitioner, the infant claimant’s father, made an application for leave to serve a late notice of claim, asserting merely that the application was timely brought within the 10-year tolling period for infancy and that the appellant had knowledge of the facts and would not be prejudiced by virtue of the medical records in its possession.

It is well settled that in determining whether to permit service of a late notice under General Municipal Law § 50-e, a court should consider all relevant facts and circumstances, including whether an infant is involved, whether there is a reasonable excuse for the delay, whether the public corporation acquired actual knowledge of the facts constituting the claim within 90 days or a reasonable time thereafter, and whether the public corporation’s defense would be substantially prejudiced by the delay (see, Matter of D’Anjou v New York City Health & Hosps. Corp., 196 AD2d 818, 820).

When all the relevant facts and circumstances of this case are taken into consideration, it is clear that it was an improvident exercise of discretion to grant the petitioner leave to serve a late notice of claim. The petitioner failed to provide any excuse for his eight-year delay in seeking leave to serve a late notice of claim (see, Matter of Plantin v New York City Hous. Auth., 203 AD2d 579; Ribeiro v Town of N. Hempstead, 200 AD2d 730), and, although an infant is involved, the delay was manifestly unrelated to the infancy (see also, Matter of Diaz v City of New York, 211 AD2d 789; Matter of Kornell v Clarkstown Cent. School Dist., 202 AD2d 426; Kardashinsky v New York City Hous. Auth., 182 AD2d 676). To merely assert, as the dissent does, that the motion was timely because it was made within the 10-year tolling provision for infancy is insufficient. General Municipal Law § 50-e does not provide for the automatic approval of an application for leave to serve a late notice of claim simply because it was made within the applicable Statute of Limitations for commencing an action and any tolling periods. This is not a case where a petitioner has attempted to provide an excuse, no matter how feeble, for the eight-year delay. Rather, the petitioner herein never bothered to put forth any excuse whatsoever (see, Matter of Mondaca v County of Westchester, 195 AD2d 511).

Moreover, there is absolutely nothing in the record to support the dissent’s assertion that the delay "was directly attributable to the infancy”. The nature of the infant claim*10ant’s injuries would have manifested itself within a short period of time after his birth. Yet, his father waited eight years without explanation before seeking leave to serve a late notice of claim (see, Matter of Kornell v Clarkstown Cent. School Dist., supra; Matter of Andersen v Nassau County Med. Ctr., 135 AD2d 530).

While the absence of a nexus between the delay and the infancy will not automatically preclude the granting of leave to serve a late notice of claim (see, Matter of Kurz v New York City Health & Hosps. Corp., 174 AD2d 671, 672), certainly "the absence of a showing that the delay is the product of the infancy itself is a factor which militates against granting such relief’ (Matter of Gandia v New York City Hous. Auth., 173 AD2d 824; also, Kardashinsky v New York City Hous. Auth., 182 AD2d 676, supra). Moreover, "the mere fact of infancy alone is not sufficient as a matter of law to compel the granting of an application for leave to serve a late notice of claim” (Matter of Kurz v New York City Health & Hosps. Corp., supra, at 672; also, Doukas v East Meadow Union Free School Dist., 187 AD2d 552; Matter of Kyser v New York City Hous. Auth., 178 AD2d 601, supra; Matter of Salyer v Valley Cent. School Dist., 163 AD2d 782). General Municipal Law § 50-e does not grant special dispensation to a claimant merely because he or she is an infant (see, Matter of Kyser v New York City Hous. Auth., supra; Matter of Groshans v Town of Babylon, 143 AD2d 666; Caparco v Town of Brookhaven, 133 AD2d 803).

Further, the petitioner failed to demonstrate a lack of prejudice to the appellant as a result of the unexcused eight-year delay (see, Munnerlyn v City of New York, 203 AD2d 437; Matter of D'Anjou v New York City Health & Hosps. Corp., supra; Matter of Mondaca v County of Westchester, 195 AD2d 511, supra). Indeed, it is undisputed that the four physicians who treated the infant claimant at the time of his birth are no longer employed by the appellant. The two doctors who performed the caesarean section in August 1985 had left the appellant’s employ by February 1987. The doctor who examined the infant claimant immediately after birth had left the appellant’s employ in June 1986, while the emergency room doctor left in September 1989. Thus, four years had passed since the last doctor had terminated his relationship with the appellant before the petitioner sought leave to serve a late notice of claim. Moreover, contrary to the dissent’s suggestion, there is nothing in the record which would support a finding *11that these doctors were available to the appellant at the time the petitioner’s application was made. Thus, the appellant has been prejudiced by the delay (see, Lallave v City of New York, 127 AD2d 634; Baehre v County of Erie, 94 AD2d 943).

In addition, the obvious prejudice that has been suffered by the appellant as a result of the eight-year delay cannot be dismissed with a mere wave of the hand and the comment that the appellant has medical records in its possession. While it is true that in a number of cases the courts have indicated that the possession of medical records was a favorable factor toward granting leave to serve a late notice of claim, in those cases there were other factors present which also supported such relief. Thus, those cases are distinguishable from the instant case where there are no other mitigating circumstances present.

Furthermore, unlike the facts in Rechenberger v Nassau County Med. Ctr. (112 AD2d 150), relied upon by the dissent, there is nothing in the record which would suggest that the medical records contain the facts and information necessary to conduct an adequate investigation into the claim. The prejudice that would arise as a result of any inadequacies in the record would be further compounded by the prejudice arising from the fact that the four key physicians are no longer under the control of the appellant. Accordingly, the possible existence of medical records in this case does not warrant the granting of leave to serve a late notice of claim (see, Matter of D’Anjou v New York City Health & Hosps. Corp., 196 AD2d 818, supra; Matter of Aviles v New York City Health & Hosps. Corp., 172 AD2d 237; Matter of Andersen v Nassau County Med. Ctr., 135 AD2d 530, supra).

Contrary to the position taken by the dissent, this case is remarkable for its complete absence of any factors which would justify granting leave to serve a late notice of claim. To grant leave in this case would be tantamount to rubberstamping the petitioner’s application merely because an infant is involved. General Municipal Law § 50-e does not grant infants automatic leave to serve late notices and neither should the courts.