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LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM FOR CONSCIOUS PAIN AND SUFFERING.

The Second Department determined a petition for leave to file a late notice of claim against the NYC Health and Hospitals Corporation for conscious pain and suffering was properly denied. The court determined the hospital was not timely put on notice of the claim simply by its possession of the decedent’s hospital records:

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Contrary to the petitioner’s contention, the respondent did not acquire actual knowledge of the essential facts constituting the claim to recover damages for conscious pain and suffering within the requisite 90-day period or a reasonable time thereafter by virtue of its possession of hospital records relating to the decedent’s death … . A medical provider’s mere possession or creation of medical records does not establish that it had “actual knowledge of a potential injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any injury on” the claimant … . Furthermore, the petitioner failed to demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the lengthy delay in filing the petition … . Even assuming that the petitioner met its initial burden to show that the late notice will not substantially prejudice the respondent, and that the respondent failed to make “a particularized evidentiary showing that [it] will be substantially prejudiced if the late notice is allowed” in response … , upon consideration of the balance of the relevant factors (see General Municipal Law § 50-e[5]), the Supreme Court providently exercised its discretion in denying leave to serve a late notice of claim with respect to the cause of action alleging conscious pain and suffering … . Matter of Rosenblatt v New York City Health & Hosps. Corp., 2017 NY Slip Op 03004. 1st Dept 4-19-17

MUNICIPAL LAW (LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM)/NOTICE OF CLAIM (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM)/NEGLIGENCE (MUNICIPAL LAW, LATE NOTICE OF CLAIM PROPERLY DENIED, POSSESSION OF DECEDENT’S HOSPITAL RECORDS NOT ENOUGH TO DEMONSTRATE HOSPITAL’S TIMELY AWARENESS OF THE POTENTIAL CLAIM)

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