Rosario v. New York City Health & Hospitals Corp.

Rosario v New York City Health & Hosps. Corp. (2014 NY Slip Op 05603)

Rosario v New York City Health & Hosps. Corp.

2014 NY Slip Op 05603

Decided on July 31, 2014

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 31, 2014
Gonzalez, P.J., Tom, Friedman, Andrias, Saxe, JJ.

15185/05

[*1]11933N Madeline Annie Rosario, etc., et al., Plaintiffs-Respondents, —

v

New York City Health & Hospitals Corporation, etc., Defendant-Appellant.

Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for appellant.

Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for respondents.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered August 27, 2012, which granted plaintiffs' motion for leave to file a late notice of claim as to the infant plaintiff alone, and denied defendant's cross motion to dismiss the complaint, unanimously affirmed, without costs.

Upon consideration of the factors relevant to deciding a motion for leave to file a late notice of claim, we find that the court properly granted plaintiff's motion (see Matter of Dubowy v City of New York, 305 AD2d 320 [1st Dept 2003]; General Municipal Law § 50-e[5]). Plaintiffs' failure to demonstrate a reasonable excuse for their delay is not alone fatal to their motion (id.). Plaintiffs' expert affidavits show that, from the medical records, defendant had actual knowledge of the facts underlying plaintiffs' theory of a departure from the accepted standard of pediatric care with regard to the diagnosis and treatment of the mother's placental infection and her fetal distress and subsequent self-extubation, and defendant's experts failed to refute this showing (see Alvarez v New York City Health & Hosps. Corp. [North Cent. Bronx Hosp.], 101 AD3d 464 [1st Dept 2012]). In contrast to Torres v New York City Health & Hosps. Corp. [Lincoln Hosp.], 101 AD3d 463, 463 [1st Dept 2012], lv denied 21 NY3d 860 [2013]), relied on by defendant, where "the hospital records [did] not suggest any injury attributable to malpractice," plaintiffs' experts explained how defendant's failures caused additional injuries to the already compromised infant, who was born at 26 weeks' gestation.

Defendant is not substantially prejudiced by the delay since the operative facts of the claim are contained in the records,

and the case will turn primarily on those records, rather than on witnesses' memories (see e.g. Leeds v Lenox Hill Hosp., 6 AD3d 232 [1st Dept 2004]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 31, 2014

CLERK