Tuesday, September 23, 2014

Denial of a motion to file a late notice of claim.

Practice point:  The Appellate Division affirmed the denial of the motion and the dismissal of this medical malpractice action in which the infant plaintiff sought to recover for injuries he suffered after being born at 27 weeks' gestation. The Appellate Division found that the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff's motion, pursuant to General Municipal Law § 50-e[5].

The Appellate Division found that the infant plaintiff's mother's excuses that she was unfamiliar with the requirement that she file a notice of claim, and that she was unaware that her son's injuries were caused by defendant's malpractice, are not reasonable. Nor is her attorney's assertion that he waited to make the motion until nearly four years after filing the untimely notice of claim because he needed to receive the medical records from the defendant.

In addition, the medical records demonstrate that the infant plaintiff's condition and prognosis are consistent with his premature birth, and do not suggest any injury attributable to the hospital staff's malpractice. Plaintiff failed to demonstrate that the medical records put defendant on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia, or that he would
subsequently develop other deficits, delays, and disorders.

Student note: As to the relevance of the plaintiff's infancy, the Appellate Division said that it "carries little weight" as there is not connection between that infancy and the delay in moving for leave to file.

Case:  Wally G. v. New York City Health & Hosps. Corp. (Metropolitan Hospital), NY Slip Op 06241 (1st Dept. 2014)

Here is the decision.

Tomorrow's issue: Documentary evidence in support of a CPLR 3211(a)(1) motion.