Torres v. New York City Health & hospitals Corp.

In this action for medical malpractice, the infant plaintiff seeks to recover for injuries he suffered after being born extremely premature, at 25 weeks’ gestation, weighing only one pound, nine ounces. The motion court properly exercised its discretion in denying plaintiffs motion upon consideration of the pertinent statutory factors (General Municipal Law § 50-e [5]). The infant plaintiffs mother’s excuse that she was unaware that she had a malpractice claim until more than six years after plaintiff’s birth is unreasonable (see Plaza v New York Health & Hosps. Corp. [Jacobi Med. Ctr.], 97 AD3d 466, 467-468 [1st Dept 2012]). Additionally, there was no excuse proffered for the additional delay of more than three years (almost 10 years after the birth) between the filing of the notice of claim and the time the instant motion was made. Further, since the infant plaintiffs condition and prognosis are consistent with his prematurity, the hospital records do not suggest any injury attributable to malpractice (see Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]; Rodriguez v New York City Health & Hosps. Corp. [Jacobi Med. Ctr.], 78 AD3d 538, 539 [1st Dept 2010], lv denied 17 NY3d 718 [2011]; Velazquez v City of N.Y. Health & Hosps. Corp. [Jacobi Med. Ctr.], 69 AD3d 441, 442 [1st Dept 2010], lv denied 15 NY3d 711 [2010]). We have considered plaintiffs remaining arguments and find [464] them unavailing. Concur — Andrias, J.P., Friedman, DeGrasse, Manzanet-Daniels and Gische, JJ.