Bowen v. Salamanca District Hospital Authority

Order unanimously reversed, on the law and facts, with costs, and motion granted. Memorandum: Special Term erred in denying plaintiff’s motion for leave to file a late notice of claim pursuant to subdivision 5 of section 50-e of the General Municipal Law. The plaintiff was operated on for a hysterectomy on August 25,1982, which resulted in a vesicle vaginal fistula. This condition went undetected until December 28, 1982. Plaintiff claims defendant hospital was negligent in both the operation and hospital procedures. Defendant claims that the first notice of plaintiff’s claim was March 31,1983, the date of service of motion papers. Although we cannot say from this record that defendant acquired actual notice of the essential facts constituting the claim, hospital records and doctors’ reports do exist to restore any diminished memories of the hospital staff and aid in its ability to investigate and defend the claim (see Matter ofNewson v City of New York, 87 AD2d 630; Matter ofSomma v City of New York, 81 AD2d 889). Moreover, no prejudice is shown by the defendant (see Passalacqua u County of Onondaga, 94 AD2d 949; Matter ofWemett v County of Onondaga, 64 AD2d 1025). (Appeal from order of Supreme Court, Cattaraugus County, Ricotta, J. — late notice of claim.) Present — Dillon, P. J., Boomer, Green, O’Donnell and Schnepp, JJ.