Where the infant petitioner seeks to recover for permanent brain damage due to alleged negligence and medical malpractice committed prior to and at the time of his birth in respondent hospital in 1984, his application to file a late notice of claim should have been granted inasmuch as respondent has been in possession of the child's medical records since the time of the alleged malpractice and has thus had actual notice of the claim and the underlying facts within the limitation period (see, 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, 673). It is undisputed that the application was made within the appropriate limitation period as tolled by petitioner's infancy. Moreover, the fact that petitioner's mother waited nine years from the birth of her son and five years from the time he was institutionalized before seeking such relief should not be fatal given respondent's knowledge and the resulting lack of prejudice (see, Chattergoon v. New York City Hous. Auth., 197 A.D.2d 397; Matter of Kurz v. New York City Health Hosps. Corp., supra).
Concur — Carro, J.P., Rosenberger, Wallach, Kupferman and Tom, JJ.