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Comedic Break

Court of Appeals Addresses Issues Surrounding Filing of Late Notice of Claim

In Williams v. Nassau County Med. Ctr., 2006 NY Slip Op 02454, I was surprised to learn that the Court of Appeals upheld the Appellate Division's reversal of the trial court's discretionary decision to allow the plaintiff to file a late notice of claim.  In this case, the infant plaintiff was alleged that his epilepsy and developmental disabilities arose from negligence that occurred during his birth in 1993 and sought leave to file a late notice of claim in 2003.

The relevant statute, GML s. 50-e (5) provides as follows:

Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

In reaching its decision, the Court of Appeals stated that:

In summary, the 1976 amendments to § 50-e (5) de-emphasized the importance of a nexus between a plaintiff's infancy and the delay in service of a notice of claim. The statute now contains a non-exhaustive list of factors that the court should weigh, and compels consideration of all relevant facts and circumstances. This approach provides flexibility for the courts and requires them to exercise discretion. Under the pre-1976 version of the statute, we noted that where satisfied that the court has acted within the perimeters of reason, we have consistently affirmed the exercise of discretion whether it has been invoked to sustain or deny grants of permission for late filing. In line with that premise, we find no abuse of discretion by the Appellate Division.  (Internal citations and quotations omitted.)

I'm not sure why the Court of Appeals allowed such deference to the Appellate Division's discretion, and yet seemed to ignore the application of that principle to the trial court's decision.  Arguably, the trial court was in a better position to exercise such discretion than the Appellate Division. 

Another aspect of this decision that bothered me was the Court's conclusion that the defendants did not have actual knowledge of the essential facts, even though they were in possession of the relevant medical records.  The Court stated that:

The relevant inquiry is whether the hospital had actual knowledge of the facts — as opposed to the legal theory — underlying the claim. Where, as here, there is little to suggest injury attributable to malpractice during delivery, comprehending or recording the facts surrounding the delivery cannot equate to knowledge of facts underlying a claim.

While that concept set forth above sounds reasonable in theory, practically speaking, I'm not sure what additional information that the plaintiff could have provided to the defendants in the Notice of Claim that was not already contained in the medical records.  By requiring plaintiffs to prove that there is some evidence of malpractice readily apparent in the medical records, it seems to me that the Court of Appeals is precluding plaintiffs whose injuries only become evident years after the alleged negligence from seeking compensation for their injuries.

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