Brunson v. New York City Health & Hospitals Corp.

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Queens County (O’Donoghue, J.), entered July 7, 2014, as denied those branches of his motion which were for leave to serve a late notice of claim or to deem the proposed notice of claim timely served nunc pro tunc, and, in effect, denied the unopposed branch of his motion which was to strike the first affirmative defense asserted by the defendant New York City Health and Hospitals Corporation, and (2) from an order of the same court entered July 31, 2014, which amended the order entered July 7, 2014, by directing the dismissal of the complaint insofar as asserted against the defendant New York City Health and Hospitals Corporation.

Ordered that the order entered July 7, 2014, is reversed insofar as appealed from, on the law and in the exercise of discretion, those branches of the plaintiff’s motion which were to deem the proposed notice of claim timely served nunc pro tunc and to strike the first affirmative defense asserted by the defendant New York City Health and Hospitals Corporation are granted, and that branch of the plaintiff’s motion which was for leave to serve a late notice of claim is denied as unnecessary; and it is further,

Ordered that the order entered July 31, 2014, is reversed, on the law and in the exercise of discretion; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff was treated in the emergency department of a

Service of a notice of claim within 90 days after accrual of the claim is a condition precedent to commencing a tort action against a municipal defendant (see McKinney’s Uncons Laws of NY § 7401 [2] [New York City Health and Hospital Corporation Act § 20 (L 1969, ch 1016, § 1, as amended)]; General Municipal Law § 50-i [1]; Scantlebury v New York City Health & Hosps. Corp., 4 NY3d 606 , 609 [2005]; Plummer v New York City Health & Hosps. Corp., 98 NY2d 263 , 267 [2002]). However, General Municipal Law § 50-e (5) permits a court to extend the time to serve a notice of claim. In determining whether to grant such an extension, the court must consider various factors, of which the “ ‘most important’ ” is “whether the pubhc corporation acquired actual notice of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter” (Matter of Whittaker v New York City Bd. of Educ., 71 AD3d 776 , 777 [2010], quoting Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138 , 147 [2008]; see General Municipal Law § 50-e [5]).

Under the circumstances of this case, in which the defendant received a late notice of claim less than one month after the expiration of the 90-day period, which it accepted and with respect to which it conducted an examination pursuant to

The plaintiff also demonstrated that the defendant was not prejudiced, since the defendant became aware of the malpractice claim less than one month after the expiration of the 90-day period, the facts from which the claim arises are preserved in the medical records, and the defendant conducted a General Municipal Law § 50-h examination (see Matter of Khan v New York City Health & Hosps. Corp., 135 AD3d 940 , 942 [2016]; Gibbs v City of New York, 22 AD3d 717 , 719 [2005]). Although the plaintiff did not have a reasonable excuse for his failure to timely serve the notice of claim, the absence of a reasonable excuse for the delay does not bar the granting of the motion for leave to serve a late notice of claim where, as here, there is actual knowledge and an absence of prejudice (see Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90 AD3d 761 , 762 [2011]; Matter of Whittaker v New York City Bd. of Educ., 71 AD3d at 778 ).

Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was to deem the proposed notice of claim timely served nunc pro tunc. Further, the unopposed branch of the plaintiff’s motion which was to strike the defendant’s first affirmative defense should have been granted on the merits, since the action was commenced within one year and 90 days of the happening of the event (see General Municipal Law § 50-i [1] [c]). Finally, since the directive in the order entered July 31, 2014, dismissing the plaintiff’s complaint insofar as asserted against the defendant was predicated upon the denial of those branches of the plaintiff’s motion which were for leave to serve a late notice of claim or to deem the proposed notice of claim timely served nunc pro tunc, that order also must be reversed.

Rivera, J.R, Austin, Sgroi and Duffy, JJ., concur.