The claims for damages in this case arose in the alleged medical malpractice committed by the medical practitioners of a Health and Hospitals Corporation (HHC). Plaintiff first served a notice of claim without leave of court on June 5, 2006. Plaintiff’s mother began her prenatal care with defendant (HHC) in late 2002, and the infant was born on July 11, 2003. Plaintiff’s bill of particulars states that the acts of alleged malpractice occurred between November 27, 2002 and July 16, 2003. Therefore, the time to file a notice of claim without leave of court expired on October 16, 2003, approximately two years and eight months prior to plaintiff’s attempted filing of a late notice of claim.
On April 29, 2009, defendant moved for summary judgment dismissing the complaint. That motion raised, for the first time, plaintiff’s failure to file a timely notice of claim. On August 17, 2009, plaintiff filed opposition to the motion and cross-moved or an order deeming the notice of claim timely served or, in the alternative, granting leave to serve a late notice of claim.
We have repeatedly held that service of a late notice of claim without leave of court is a nullity. Moreover, the failure to seek a court order excusing such lateness within one year and 90 days after accrual of the claim requires dismissal of the action. Therefore, the complaint should have been dismissed on this ground alone.
A Bronx County Personal Injury Attorney said that, plaintiff has failed to meet the basic criteria that would warrant the exercise of this Court’s discretion to permit her to file a late notice of claim. General Municipal Law § 50–e(5) gives a court the discretion to grant leave to serve a late notice of claim after considering whether the public corporation or its attorneys acquired actual knowledge of the essential facts constituting a claim within the time specified or within a reasonable time thereafter.
Another Bronx County Personal Injury Lawyer argued that, in deciding whether a notice of claim should be deemed timely served under General Municipal Law § 50–e(5), the key factors considered are whether the movant demonstrated a reasonable excuse for the failure to serve the notice of claim within the statutory time frame, whether the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in its defense. Moreover, the presence or absence of any one factor is not determinative.
Applying these criteria to this case, we find that plaintiff failed to provide a reasonable excuse for the delay and to establish that HHC had actual notice of the claim.
A Bronx County Injury Attorney said that, the statute is remedial in nature and should be liberally construed, such construction should not be taken as carte blanche to file a late notice of claim years after the incident which gave rise to the claim occurred. Such an interpretation would frustrate the purpose of the statute which is to protect the municipality from unfounded claims and ensure that it has an adequate opportunity to explore the claim’s merits while information is still readily available.
Here, plaintiff failed to offer a reasonable excuse for the delay in moving for leave to serve a late notice of claim. The record shows that the delay is attributable to the fact that plaintiff’s mother, while on notice of the infant’s condition, lacked an understanding of the legal basis for the claim, and that she retained her current counsel in July 2005, almost two years after the infant’s birth. However, ignorance of the law is not a reasonable excuse. Significantly, it must be noted that counsel waited almost a year after being retained to file a notice of claim, albeit without leave of the court.
A Bronx County Injury Lawyer said that, actual knowledge of the essential facts is an important factor in determining whether to grant an extension and should be accorded great weight. Contrary to the plaintiff’s argument, plaintiff failed to demonstrate that defendant acquired actual notice of the facts constituting the claim from the medical record, as the record alone did not put defendant on notice of alleged malpractice that might years later give rise to another condition.
Despite plaintiff’s experts’ attempts to read into the records issues that developed beyond the time frame set forth in plaintiff’s bill of particulars, the records do not, on their face, demonstrate a failure to provide proper prenatal and labor care, or that defendant departed from good and accepted medical practice during delivery. Merely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any birth injury on plaintiff during the birth process.
In applying all the factors which must be considered in determining whether permitting service of a late notice of claim would be a provident exercise of discretion, we conclude that plaintiff failed to meet the overall requirements and the complaint must therefore be dismissed.
If you think your child suffers from injury/damage due to the misconduct or negligence of the persons responsible for his/her birth, contact a Bronx County Personal Injury Lawyer at Stephen Bilkis & Associates.
With the assistance of A Bronx County Personal Injury Attorney, you will have a better standing in recovering damages. Do not waste time, guard your right, and call us without delay.