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LEAVE TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department determined plaintiff (Kelly) should not have been allowed to file a late notice of claim in this sidewalk slip and fall case. No reasonable explanation was offered and defendant housing authority did not have timely notice of the substance of the claim:

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… Kelly failed to provide a reasonable excuse for his failure to serve a timely notice of claim upon NYCHA [New York City Housing Authority]. Kelly’s excuse, that he first discovered the identity of the owner of the subject walkway at the General Municipal Law § 50-h hearing, arose from a lack of due diligence in investigating the matter, which is an unacceptable excuse … . Even if Kelly made an excusable error in identifying the public corporation upon which he was required to serve a notice of claim, he failed to proffer any explanation for the additional seven-month delay between the time that he discovered the error and the filing of his application for leave to serve a late notice of claim … .

Furthermore, NYCHA did not acquire timely, actual knowledge of the essential facts constituting Kelly’s claim. Although the City was served with a notice of claim within 90 days after the accident and conducted a General Municipal Law § 50-h hearing about 5½ months after the accident, notice to the City cannot be imputed to NYCHA … . Moreover, the notice of claim, served together with the application upon NYCHA almost 10 months after the 90-day statutory period had elapsed, was served too late to provide NYCHA with actual knowledge of the essential facts constituting the claim within a reasonable time after the expiration of the 90-day statutory period … .

Finally, Kelly presented no “evidence or plausible argument” that his delay in serving a notice of claim upon NYCHA did not substantially prejudice NYCHA in defending on the merits … . Kelly v City of New York, 2017 NY Slip Op 06640, Second Dept 9-27-17

 

NEGLIGENCE (MUNICIPAL LAW, PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM,  PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (MUNICIPAL LAW, PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SIDEWALKS (SLIP AND FALL, MUNICIPAL LAW, PERMISSION TO FILE A LATE NOTICE OF CLAIM IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the petition seeking leave to file a late notice of claim should have been denied. Although the school was aware of the student’s injury, it was not timely made aware of the negligent supervision claim. The fact that the school did not demonstrate prejudice from the delay was not determinative:

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… [T]he petitioner failed to establish that the School District acquired actual knowledge of the essential facts constituting the claim within 90 days after the child’s accident or a reasonable time thereafter. Although the school nurse prepared a “Notification of Injury” form, which the petitioner signed nearly two months after the accident, this form merely indicated that the child received a laceration and contusion on the outer corner of his left eye when he fell on the steps of the large slide. Thus, the form did not provide the School District with timely, actual knowledge of the essential facts underlying the claims that it was negligent in supervising its students, and in the hiring and training of school personnel … . Therefore, the School District had no reason to conduct a prompt investigation into the purported negligence … .

… [P]etitioner failed to demonstrate a reasonable excuse for her failure to serve a timely notice of claim. The child’s infancy alone, without any showing of a nexus between the infancy and the delay, was insufficient to constitute a reasonable excuse … . Moreover, to the extent that the petitioner attributed her delay to the need to determine that the proper entity to sue was the School District, a readily ascertainable fact, such a claim does not constitute a reasonable excuse… .

While the petitioner did satisfy her initial burden of showing a lack of substantial prejudice to the School District as a result of her late notice, and the School District failed to make a “particularized evidentiary showing” of substantial prejudice in response … , the presence or absence of any one factor is not necessarily determinative in deciding whether permission to serve a late notice of claim should be granted… . A balancing of the relevant factors … demonstrates that the Supreme Court improvidently exercised its discretion in granting the petition … . McClancy v Plainedge Union Free Sch. Dist., 2017 NY Slip Op 06651, Second Dept 9-27-17

 

NEGLIGENCE (LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/EDUCATION-SCHOOL LAW (NEGLIGENCE, NOTICE OF CLAIM, LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SUPERVISION, NEGLIGENT (EDUCATION-SCHOOL LAW, (LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT). 

The First Department, reversing Supreme Court, determined the action against a police officer whose police car struck plaintiff should have been dismissed. Plaintiff was standing in the road at the double yellow lines when the officer, responding to an emergency call, moved over the double yellow line:

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Defendants demonstrated that defendant police officer was engaged in an “emergency operation” within the meaning of Vehicle and Traffic Law § 1104, by submitting evidence that the officer was responding to a radio call about a “man with a gun” when her police vehicle struck plaintiff … . Defendants’ evidence also showed that the officer was engaged in conduct privileged under the statute at the time of the accident, since her vehicle straddled and then crossed the double yellow lines, in disregard of regulations “governing directions of movement” (VTL § 1104[b][4]). Accordingly, defendants demonstrated that the officer’s conduct is to be assessed under the statute’s “reckless disregard” standard… .

Defendants further demonstrated that the officer did not operate the police vehicle in reckless disregard for the safety of others … . The officer testified that traffic warranted moving her vehicle left and operating it on the double yellow lines to avoid the stopped vehicles to her right and ahead of her. The officer had no duty to engage her sirens or lights, as she was operating a police vehicle, and her failure to do so was not evidence of recklessness …. Moreover, the officer testified that she attempted to avoid plaintiff, who was standing on the double yellow lines, by swerving behind her, an assertion that plaintiff supported with her own testimony … .

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In opposition, plaintiff failed to present evidence showing that there was no emergency, and failed to raise an issue of fact as to whether the officer acted in reckless disregard for the safety of others. Green v Zarella, 2017 NY Slip Op 06599, First Dept 9-26-1

 

NEGLIGENCE (POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/MUNICIPAL LAW (POLICE OFFICERS, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/VEHICLE AND TRAFFIC LAW (POLICE OFFICERS, RECKLESS DISREGARD, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/RECKLESS DISREGARD (VEHICLE AND TRAFFIC LAW, POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))/TRAFFIC ACCIDENTS (PEDESTRIANS, (POLICE OFFICER WAS RESPONDING TO AN EMERGENCY AND WAS NOT ACTING IN RECKLESS DISREGARD FOR THE SAFETY OF OTHERS WHEN THE POLICE CAR STRUCK PLAINTIFF WHO WAS STANDING IN THE ROAD, COMPLAINT SHOULD HAVE BEEN DISMISSED (FIRST DEPT))

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DEFENDANT BICYCLIST WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE STRUCK AND KILLED PLAINTIFF, EMPLOYER NOT VICARIOUSLY OR DIRECTLY LIABLE (FIRST DEPT).

The First Department determined defendant-bicyclist’s (Cook’s) employer (AGI) was not vicariously liable for the bicyclist’s actions. Cook was riding his own bicycle on his own time when he struck and killed plaintiff. Cook worked as a bicycling coach for AGI. The court also found that the negligent hiring and retention cause of action was properly dismissed:

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The motion court correctly determined that AGI could not be held vicariously liable for Cook’s alleged negligence, as Cook was acting outside the scope of his employment. At the time of the accident, Cook was engaged in a weekend bicycle ride, in a public park, using a bicycle that he purchased and equipped, was alone and was not coaching anyone, and was not acting in furtherance of any duties owed to AGI … .

Cook’s unsupported belief, as set forth in an affirmative defense, that his bicycle riding had a work component to it, and his unsworn Response to the Notice to Admit (see CPLR 3123[a]), which improperly sought admissions as to employment status, a contested issue central to the action … , do not create triable issues of fact as to whether Cook was acting in the scope of employment … . …[T]here is no indication that AGI was exercising any control over Cook at the time of the accident … .

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The motion court correctly dismissed plaintiff’s direct negligence claim against AGI. There is no evidence that AGI knew or should have known of Cook’s alleged propensity to dangerously ride his bicycle in Central Park, an element necessary to support the claim for negligent hiring and retention … , and plaintiff’s conclusory allegations of deficient training are insufficient to defeat summary judgment … . Fein v Cook, 2017 NY Slip Op 06603, First Dept 9-26-17

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NEGLIGENCE (DEFENDANT BICYCLIST WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE STRUCK AND KILLED PLAINTIFF, EMPLOYER NOT VICARIOUSLY OR DIRECTLY LIABLE (FIRST DEPT))/EMPLOYMENT LAW (VICARIOUS LIABILITY, DEFENDANT BICYCLIST WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN HE STRUCK AND KILLED PLAINTIFF, EMPLOYER NOT VICARIOUSLY OR DIRECTLY LIABLE (FIRST DEPT))

DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant demonstrated it took adequate measures to keep the floor free of water and the area where plaintiff fell was inspected ten minutes before the slip and fall. Defendant Roza 14W’s motion for summary judgment should have been granted:

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Plaintiff Frank Kelly was allegedly injured when he slipped and fell on water on the marble floor in the lobby of Roza 14W’s building. It was snowing lightly at the time of the accident and the floor had mats in various locations, but not in the area where plaintiff slipped.

Roza 14W made a prima facie showing that a reasonable cleaning routine was followed on the day of the accident … . Roza 14W submitted evidence that, in addition to the mats, wet floor warning signs were placed in the lobby, two porters were assigned to walk around the lobby to dry mop wet areas, and the area where plaintiff fell was found to be clean and dry 10 minutes before the fall.

Plaintiffs failed to submit evidence sufficient to raise a triable issue of fact. Roza 14W was not obligated to either continuously mop up moisture tracked onto its floor… or to cover the entire floor with mats … . In addition, the affidavit of plaintiffs’ expert failed to cite any violation of an accepted industry practice, standard, code, or regulation …. . Kelly v Roza 14W LLC, 2017 NY Slip Op 06630, First Dept 9-26-17

 

NEGLIGENCE (DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/SLIP AND FALL (DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))/TRACKED IN WATER (SLIP AND FALL, DEFENDANT DEMONSTRATED IT TOOK ADEQUATE MEASURES TO KEEP THE FLOOR DRY, DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (FIRST DEPT))

RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA OF THE SLIP AND FALL HAD LAST BEEN CLEANED OR INSPECTED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant restaurant (Carrabba’s) was not entitled to summary judgment in this slip and fall case. The restaurant did not demonstrate when the area had last been cleaned or inspected:

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To meet its initial burden on the issue of lack of constructive notice, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell … . In this case, Carrabba’s failed to satisfy its initial burden on this issue. The deposition testimony of Carrabba’s manager and cleaning employee referred to Carrabba’s general daily cleaning practices. Both deponents testified that they did not remember any specific cleaning or inspection of the area of the plaintiff’s fall on the date of the accident, thereby failing to make out a prima facie showing of lack of constructive notice. Lombardo v Kimco Cent. Islip Venture, LLC, 2017 NY Slip Op 06531, 2nd Dept 9-20-17

NEGLIGENCE (SLIP AND FALL, RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA OF THE SLIP AND FALL HAD LAST BEEN CLEANED OR INSPECTED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/SLIP AND FALL (RESTAURANT DID NOT DEMONSTRATE WHEN THE AREA OF THE SLIP AND FALL HAD LAST BEEN CLEANED OR INSPECTED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT).

The Second Department determined defendant landlord’s motion for summary judgment was properly denied. Plaintiff alleged a portion of the ceiling of her apartment fell down, injuring her. She alleged a standard negligence theory (failure to keep the premises safe) and a cause of action under the res ipsa loquitur doctrine. The court noted that the res ipsa loquitur doctrine was not available because plaintiff had been in the apartment for more than a year and therefore defendant did not have exclusive control over it. However there was evidence defendant had notice of a problem with the ceiling:

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… [T]he defendant failed to establish, prima facie, that she maintained the premises in a reasonably safe condition. In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that she or he neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence … .

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Here, in support of her motion, the defendant submitted, inter alia, the deposition testimony of the plaintiff, who testified that she had previously complained to the building superintendent, Jose Martinez, that the ceiling was damaged and water-stained, and that she feared it might fall on her. The plaintiff also testified that the defendant had advised her to inform Martinez of any complaints about her apartment. Under the circumstances, the defendant failed to establish, prima facie, that she had no notice of the alleged hazardous condition … . Correa v Matsias, 2017 NY Slip Op 06520, 2nd Dept 9-20-17

 

NEGLIGENCE (RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT))/LANDLORD-TENANT (NEGLIGENCE, RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT))/RES IPSA LOQUITUR (LANDLORD-TENANT, RES IPSA LOQUITUR DID NOT APPLY TO APARTMENT CEILING COLLAPSE BECAUSE LANDLORD DID NOT HAVE EXCLUSIVE CONTROL, QUESTION OF FACT WHETHER LANDLORD BREACHED DUTY TO KEEP PREMISES SAFE (SECOND DEPT))

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DISCOVERY STATUTE MUST BE LIBERALLY CONSTRUED, PLAINTIFF ENTITLED TO CONTRACTS AND AGREEMENTS DEMONSTRATING THE RELATIONSHIP AMONG THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to discovery of contracts and agreements potentially relevant to the relationship among defendants in this medical malpractice action. The discovery statute is to be broadly construed:

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CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action.” The words “material and necessary” must ” be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity'” … .

Here, at his deposition, Ward testified that he was president of the PC as well as the Director of Anesthesia Services at the Medical Center. Ward further testified that there was an agreement that was executed by the Medical Center and by him in his individual capacity only, concerning, in effect, the establishment and terms of the existence of what would become the PC (hereinafter the contract). As such, and despite the fact that it was executed by Ward in his individual capacity only, the contract may provide material evidence on the issue of the Medical Center’s relationship to or control over the PC. Thus, the disclosure sought by the plaintiff, i.e., the production of the contract by Nataloni, the PC, and the Medical Center, and a knowledgeable witness from the Medical Center regarding the contract, was “[evidence] material and necessary” for the prosecution of his action … . Accordingly, the Supreme Court improvidently exercised its discretion in denying those branches of the plaintiff’s motion which were to compel Nataloni, the PC, and the Medical Center to produce any contracts and agreements for anesthesia services between the Medical Center and Ward, in his individual capacity only, and to compel the Medical Center to produce a witness with knowledge regarding the subject contract. The court likewise improvidently exercised its discretion in granting those branches of the separate cross motions which were for a protective order with respect to those discovery demands. Redmond v Hanypsiak, 2017 NY Slip Op 06563, Second Dept 9-20-17

 

CIVIL PROCEDURE (DISCOVERY STATUTE MUST BE LIBERALLY CONSTRUED, PLAINTIFF ENTITLED TO CONTRACTS AND AGREEMENTS DEMONSTRATING THE RELATIONSHIP AMONG THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))/NEGLIGENCE (DISCOVERY STATUTE MUST BE LIBERALLY CONSTRUED, PLAINTIFF ENTITLED TO CONTRACTS AND AGREEMENTS DEMONSTRATING THE RELATIONSHIP AMONG THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))/MEDICAL MALPRACTICE (DISCOVERY STATUTE MUST BE LIBERALLY CONSTRUED, PLAINTIFF ENTITLED TO CONTRACTS AND AGREEMENTS DEMONSTRATING THE RELATIONSHIP AMONG THE DEFENDANTS IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT))

SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT RETAIL STORE, STORE DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE HAZARDOUS CONDITION (CT APP).

The Court of Appeals, in a brief memorandum decision reversing the appellate division, determined summary judgment should not have been granted to the defendant retail store in this slip and fall case. The facts of the case were not discussed:

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In a slip-and-fall case, a defendant property owner moving for summary judgment has the burden of making a prima facie showing that it neither (1) affirmatively created the hazardous condition nor (2) had actual or constructive notice of the condition and a reasonable time to correct or warn about its existence … . Triable issues of fact exist as to whether Wal-Mart Stores, Inc. and Wal-Mart Stores East, L.P. had notice of a hazardous condition and a reasonable time to correct or warn about its existence.  Parietti v Wal-Mart Stores, Inc., 2017 NY Slip Op 06479, CtApp 9-14-17

NEGLIGENCE (SLIP AND FALL, SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT RETAIL STORE, STORE DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE HAZARDOUS CONDITION (CT APP))/SLIP AND FALL (SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD NOT HAVE BEEN AWARDED TO DEFENDANT RETAIL STORE, STORE DID NOT DEMONSTRATE IT DID NOT CREATE OR HAVE NOTICE OF THE HAZARDOUS CONDITION (CT APP))

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SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s request for permission to serve a late notice of claim should have been granted. Plaintiff alleged medical malpractice in the treatment of cervical cancer. The Second Department found that the medical records themselves timely alerted the defendant municipal hospital (NHCC) to the nature of the malpractice claim. Therefore the hospital was not prejudiced by the delay in filing the notice of claim:

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“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 injury” … . “Where the alleged malpractice is apparent from an independent review of the medical records, those records constitute actual knowledge of the facts constituting the claim'” … .

Here, in support of the petition, the decedent submitted medical records and an affidavit of a physician who reviewed the records and concluded that there had been a departure from accepted medical practice … . Inasmuch as the medical records, upon independent review, suggested injury attributable to malpractice, they provided NHCC with actual knowledge of the essential facts constituting the claim … . Furthermore, the petitioner made an initial showing that NHCC would not suffer any prejudice by the delay in serving a notice of claim, and NHCC failed to rebut the petitioner’s showing with particularized indicia of prejudice … . … [T]he lack of a reasonable excuse is not dispositive where there is actual notice and absence of prejudice …. . Matter of Breslin v Nassau Health Care Corp., 2017 NY Slip Op 06440, Second Dept 9-13-17

 

NEGLIGENCE (MUNICIPAL LAW, NOTICE OF CLAIM, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))/MUNICIPAL LAW (NOTICE OF CLAIM, MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT)/MEDICAL MALPRACTICE (MUNICIPAL LAW, NOTICE OF CLAIM, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))/NOTICE OF CLAIM (MUNICIPAL LAW, MEDICAL MALPRACTICE, SUPREME COURT SHOULD HAVE ALLOWED THE SERVICE OF A LATE NOTICE OF CLAIM AGAINST A MUNICIPAL HOSPITAL ALLEGING MEDICAL MALPRACTICE, MEDICAL RECORDS PROVIDED NOTICE OF THE CLAIM (SECOND DEPT))

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