From Casetext: Smarter Legal Research

Matter of Robinson v. Westchester Co. Medical

Appellate Division of the Supreme Court of New York, Second Department
Mar 9, 2000
703 N.Y.S.2d 528 (N.Y. App. Div. 2000)

Opinion

Submitted November 29, 1999

March 9, 2000

In a proceeding pursuant to General Municipal Law § 50-e(5) for leave to serve a late notice of claim, the petitioners appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nicolai, J.), dated January 26, 1999, as denied that branch of their application which was for leave to serve a late notice of claim on behalf of the infant petitioner.

Mainetti, Mainetti D'Orazio, Kingston, N.Y. (Marino D'Orazio of counsel), for appellants.

Kanterman Taub, P.C., New York, N.Y. (Karen L. Wagner of counsel), for respondents.

GUY JAMES MANGANO, P.J., WILLIAM C. THOMPSON, MYRIAM J. ALTMAN, DANIEL F. LUCIANO, JJ.


DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, that branch of the application which was for leave to serve a late notice of claim on behalf of the infant petitioner is granted, and the proposed notice of claim with respect to the infant petitioner is deemed served.

The infant petitioner was hospitalized at Westchester County Medical Center (hereinafter WCMC) from February 8 to February 22, 1995, where she was diagnosed with "diabetic ketoacitosis". During her hospitalization, she was treated with intravenous therapy through a femoral line placed in her right leg. She allegedly suffered permanent injuries caused by the negligent manner in which the femoral line was inserted.

In September 1998, the infant's parents, on behalf of the infant and individually, made an application for leave to serve a late notice of claim on WCMC and Westchester County. The Supreme Court denied the application. On appeal, the petitioners challenge only the denial of the application insofar as made on behalf of the infant. We reverse insofar as appealed from, and grant that branch of the application.

The application on behalf of the infant was made within the appropriate period of limitations, as tolled by the petitioner's infancy (see, Matter of Makris v. Westchester County, 208 A.D.2d 843 ;Matter of Tomlinson v. New York City Health Hosps. Corp., 190 A.D.2d 806 ; Matter of Kurz v. New York City Health Hosps. Corp., 174 A.D.2d 671 ). Further, WCMC has been in possession of the infant's medical records since the time of the alleged malpractice. A review of those records reveals that WCMC had actual notice of the facts underlying the infant's claim (see, Matter of Makris v. Westchester County, supra; Matter of Tomlinson v. New York City Health Hosps. Corp., supra; Matter of Kurz v. New York City Health Hosps. Corp., supra). Under the circumstances, WCMC will not be substantially prejudiced by the delay (see, Matter of Makris v. Westchester County, supra; Matter of Tomlinson v. New York City Health Hosps. Corp., supra; Matter of Quiroz v. City of New York, 154 A.D.2d 315 ).

MANGANO, P.J., THOMPSON, ALTMAN, and LUCIANO, JJ., concur.


Summaries of

Matter of Robinson v. Westchester Co. Medical

Appellate Division of the Supreme Court of New York, Second Department
Mar 9, 2000
703 N.Y.S.2d 528 (N.Y. App. Div. 2000)
Case details for

Matter of Robinson v. Westchester Co. Medical

Case Details

Full title:In the Matter of ANTHONY ROBINSON, etc., et al., appellants, v…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 9, 2000

Citations

703 N.Y.S.2d 528 (N.Y. App. Div. 2000)
703 N.Y.S.2d 528

Citing Cases

Rosas v. 397 Broadway Corp.

ORDERED that the order is affirmed, with costs. Under the circumstances of this case, the Supreme Court…

Matter of Kelly v. Cty. of Westchester

ORDERED that the order is affirmed, with costs. Under the facts and circumstances of this case, the Supreme…