Spaulding v. New York City Health & Hospitals Corp.

—Order, Supreme Court, New York County (Douglas McKeon, J.), entered November 16, 1993, which, inter alia, denied plaintiffs’ motion to deem their notice of claim timely filed nunc pro tunc, unanimously modified, on the law, and the facts, to grant the motion as to the infant plaintiff only, and otherwise affirmed, without costs. Inasmuch as defendant has been in possession of the infant’s medical records since the time of the alleged malpractice in 1982 when the infant plaintiff was born, it had actual notice of the claim that the infant’s cerebral palsy was due to defendant’s malpractice committed prior to and at the time of his birth, and of the underlying facts, within the limitations period, and, given this "knowledge and the resulting lack of prejudice”, the almost 10-year delay in serving a notice of claim "should not be fatal” (Matter of Williams v Bronx Mun. Hosp. Ctr., 205 AD2d 420, 421). The branch of the motion seeking the same relief on behalf of plaintiff mother asserting a derivative claim was properly denied since it was made after the expiration of the Statute of Limitations and was therefore untimely as a matter of law (Matter of West v New York City Health & Hosps. Corp., 195 AD2d 517, 518). Concur—Rosenberger, J. P., Wallach, Kupferman, Ross and Williams, JJ.