Majority
p. 217In the Matter of Joseph Mandia et al., Appellants, v County of Westchester et al., Respondents.
Order, Supreme Court, Westchester County (Lucille Polk Buell, J.), entered on or about September 29, 1988, which denied petitioners’ application to file a late notice of claim, unanimously affirmed, without costs.
p. 218
The IAS court properly exercised its discretion in denying petitioners’ application to file a late notice of claim on the grounds that respondent Westchester County Medical Center (the Hospital) would be prejudiced in its defense on the malpractice claim by petitioners’ eight-month delay in serving notice of the claim, (see, General Municipal Law § 50-e [1] [a].)
Petitioners failed to submit a medical affidavit by a physician or otherwise to substantiate their claim that the delay in service was due to physical incapacity (see, Fox v City of New York, 91 AD2d 624 , 625). Additionally, the incident report prepared by the Hospital’s staff was devoid of any fact(s) which could be construed as providing the Hospital with actual knowledge of a potential malpractice claim (see, General Municipal Law § 50-e [5]). Concur—Murphy, P. J., Carro, Milonas, Asch and Kassal, JJ.
Cases cited
- Fox v. City of New York 91 AD2d 624 at 625 p. 218