In the Matter of Kenneth Magana v. Westchester County Health Care Corp..

Martin Clearwater & Bell, LLP, New York, N.Y. (Stewart G. Milch, John L.A. Lyddane, and Laurie Ann Annunziato of counsel), for appellants.Barton Barton & Plotkin, LLP, New York, N.Y. (Thomas P. Giuffra and Jeremy A. Hellman of counsel), for respondents.

In a proceeding pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim, Westchester County Health Care Corporation and Westchester Medical Center appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Loehr, J.), entered November 17, 2010, as granted that branch of the petition which was for leave to serve a late notice of claim on behalf of the petitioner Kenneth Magana, by his mother and natural guardian, Ilsi Salguero.

ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, that branch of the petition which was for leave to serve a late notice of claim on behalf of the petitioner Kenneth Magana is denied, and the proceeding is dismissed.

In exercising its discretion to grant leave to serve a late notice of claim, a court must consider various factors, including whether (1) the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (2) the claimant was an infant, or mentally or physically incapacitated, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits ( see General Municipal Law § 50–e [5]; Matter of Iacone v. Town of Hempstead, 82 A.D.3d 888, 918 N.Y.S.2d 202; Matter of Barnes v. New York City Health & Hosps. Corp., 69 A.D.3d 934, 893 N.Y.S.2d 613; Matter of Chambers v. Nassau County Health Care Corp., 50 A.D.3d 1134, 1135, 857 N.Y.S.2d 222).

While the petitioner Kenneth Magana (hereinafter the petitioner) is an infant, the factor of infancy alone does not compel the granting of a petition for leave to serve a late notice of claim ( see Contreras v. KBM Realty Corp., 66 A.D.3d 627, 629, 887 N.Y.S.2d 172; Matter of Ali v. New York City Health & Hosps. Corp., 61 A.D.3d 860, 861, 877 N.Y.S.2d 221; Rowe v. Nassau Health Care Corp., 57 A.D.3d 961, 962–963, 871 N.Y.S.2d 330). The delays in serving the notice of claim and, thereafter, in commencing this proceeding pursuant to General Municipal Law § 50–e for leave to serve a late notice of claim, were not the product of the petitioner's infancy, and no other excuse was proffered for the delays ( see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 538, 814 N.Y.S.2d 580, 847 N.E.2d 1154; Contreras v. KBM Realty Corp., 66 A.D.3d at 629, 887 N.Y.S.2d 172; Rowe v. Nassau Health Care Corp., 57 A.D.3d at 962–963, 871 N.Y.S.2d 330; Arias v. New York City Health & Hosps. Corp. [ Kings County Hosp. Ctr.], 50 A.D.3d 830, 832, 855 N.Y.S.2d 265). Furthermore, the evidence submitted by the petitioner failed to establish that the appellants had actual knowledge of the essential facts constituting the claim within

the requisite 90–day period or a reasonable time thereafter ( see Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 538, 814 N.Y.S.2d 580, 847 N.E.2d 1154; Argueta v. New York City Health & Hosps. Corp. [ Coney Is. Hosp.], 74 A.D.3d 713, 713–714, 905 N.Y.S.2d 611; Matter of Rios v. Westchester County Healthcare Corp., 32 A.D.3d 540, 541–542, 821 N.Y.S.2d 102; Matter of Alessi v. County of Nassau, 85 A.D.2d 725, 726, 445 N.Y.S.2d 817). Finally, the petitioner failed to establish that the appellants would not be substantially prejudiced in maintaining a defense on the merits as a result of the delay ( see Williams v. Nassau County Med. Ctr., 6 N.Y.3d at 539, 814 N.Y.S.2d 580, 847 N.E.2d 1154; Argueta v. New York City Health & Hosps. Corp. [ Coney Is. Hosp.], 74 A.D.3d at 714, 905 N.Y.S.2d 611; Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 152, 851 N.Y.S.2d 218).

DILLON, J.P., DICKERSON, LEVENTHAL, AUSTIN and MILLER, JJ., concur.