Opinion
February 9, 1998
Appeal from the Supreme Court, Kings County (Spodek, J.).
Ordered that the order is affirmed, with costs.
The Supreme Court did not improvidently exercise its discretion in granting renewal, and, upon renewal, granting the petitioner's application for leave to serve a late notice of claim ( see, Matter of Kurz v. New York City Health Hosps. Corp., 174 A.D.2d 671). The appellant did not oppose the petitioner's renewed motion on the ground of untimeliness and, under the circumstances at bar, we will not consider this issue which is raised for the first time on appeal. Prior to the expiration of the 10-year period during which the Statute of Limitations had been tolled due to the petitioner's infancy ( see, CPLR 208), the appellant entered into a stipulation waiving, with prejudice, its first affirmative defense based upon the Statute of Limitations. By failing to raise its present claims of untimeliness before the Supreme Court in opposition to the renewed motion, the appellant deprived the petitioner of any opportunity to develop a factual record to challenge the assertion of this defense on the grounds of waiver and estoppel.
The exception to the requirement that issues must be preserved for appellate review applies only where the issue is one of law which appears on the face of the record and which could not have been avoided if raised at the proper juncture ( see, Libeson v. Copy Realty Corp., 167 A.D.2d 376; Block v. Magee, 146 A.D.2d 730). In light of the numerous factual issues concerning the extent and scope of the appellant's waiver of its Statute of Limitations defense, the critical issue at bar is not purely one of law, and thus it may not be raised for the first time on appeal ( see, Bragagnolo v. EMC Mtge. Corp., 234 A.D.2d 328; Matter of Dowsett v. Dowsett, 172 A.D.2d 610; Orellano v. Samples Tire Equip. Supply Corp., 110 A.D.2d 757).
Furthermore, in support of the motion to renew, the petitioner presented newly discovered evidence that mitigates substantially against the appellant's claim of prejudice and which demonstrates the meritorious nature of the petitioner's claims of malpractice. We note that the petitioner was forced to resort to court intervention to secure copies of relevant medical records which were unavailable at the time of his earlier application. Moreover, the petitioner has now provided a reasonable excuse for his failure to serve a timely notice of claim ( cf., Matarrese v. New York City Health Hosps. Corp., 215 A.D.2d 7). Accordingly, the Supreme Court providently exercised its discretion in granting the petitioner's application for leave to serve a late notice of claim.
Rosenblatt, J.P., Miller, Copertino and Pizzuto, JJ., concur.