Motion for Leave to File Late Notice of Claim Properly Denied—Injuries to Infant Plaintiff Consistent with Premature Birth

The First Department, over an extensive dissent, determined Supreme Court properly denied a motion for leave to file a late notice of claim in a medical malpractice action which alleged injuries to an infant born prematurely:

In this action for medical malpractice, in which the infant plaintiff seeks to recover for injuries he suffered after being born at 27 weeks’ gestation, the motion court considered the pertinent statutory factors and properly exercised its discretion in denying plaintiff’s motion (General Municipal Law § 50-e[5]). 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 Health and Hospital Corporation’s (HHC) malpractice, are not reasonable. Nor is her attorney’s assertion that he waited to make the motion until approximately three years and ten months after filing the untimely notice of claim because he needed to receive the medical records from HHC … .

Further, 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 … . Moreover, plaintiff failed to demonstrate that the medical records put HHC 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 … . Wally G v New York City Health & Hosps Corp, 2014 NY Slip Op 06241, 1st Dept 9-18-14