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Plaintiffs File Notice of Claim Too Late According to New York Appellate Court


This case involves the infant Zachary Velazquez, who is represented by his natural guardian and mother, Evelyn Segarra. They are the respondents of the case. The appellant in the case is the Jacobi Medical Center part of the City of New York Health and Hospitals Corporation. The case is being heard in the First Department of the New York Supreme Court, Appellate Division.

Previous Case

The original case was heard in the Supreme Court located in Bronx County. The judge in the case was Douglas E. McKeon, J. Judge McKeon granted the plaintiff’s motion for order that deemed their notice of claim was timely served, was reversed unanimously, and the facts were within the law and were discreet. The motion by the defendants was denied.

Case History

This case involves Zachary Velazquez, who was born weighing 1 lb 9 oz in March of 1998 at the Jacobi Medical Center. Zachary was in the neonatal intensive care unit at the medical center until the sixth of July in 1998. A New York Injury Lawyer said when Zachary was four he had been diagnosed with asthma and spastic cerebral palsy.

In October of 2006, a notice of claim was issued to the defendant notifying them of claims of medical malpractice, negligence, and failure to obtain informed consent for the neonatal care that was given at the time of Zachary’s birth. The respondents claim that the injury sustained by their son was a direct result from birth trauma.

An instant motion dated the 30th of August, 2007, seeks an order that states the notice of claim was made in a timely fashion or grants the leave to serve a late notice of claim.

Case Discussion

There are several factors that must be considered when determining whether a notice of claim is deemed timely. A Queens Personal Injury Lawyer said the key factor is whether or not the movants have provided a reasonable excuse for not serving the notice of claim within the time frame that is provided. Additionally, it must be shown whether or not the municipality received adequate notice of the essential facts in regard to the case within 90 days after the claim was made or within a reasonable amount of time. However, the presence or absence of either of these factors is not determinative in the case. This means that not providing a reasonable excuse is not fatal to the application.

The medical records of this case are required in order to properly assess the treatment that was given by the defendant. This record does not demonstrate enough evidence for the alleged malpractice suit. The complications of a premature birth do not alert the defendant that the infant would develop cerebral palsy years later. A Nassau County Personal Injury Lawyer said there is no evidence to show that any injury was inflicted on the infant during his care at the medical center. For this reason, not filing a timely notice has deprived the defendant of being able to conduct an investigation into the matter.

There are no excuses provided by the plaintiffs as to why they waited eight and a half years to make the claim. The plaintiffs have also not provided a reason for the additional year delay for seeking the file of late notice.

Court Decision

The Court finds that there was no evidence that the defendant should have been alerted about the malpractice claim and there was no reason for the considerable delay. The Court rules that the Supreme Court acted correctly in the previous case.

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