TREVOR GIBBS, ETC., plf-ap, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, ETC. def-res

8767. TREVOR GIBBS, ETC., plf-ap, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, ETC. def-res — Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for ap — Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for res — Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered June 16, 2010, which denied plaintiff’s motion to deem his previously served notice of claim timely, nunc pro tunc, and granted defendants’ cross motion for dismissal of the complaint, unanimously affirmed, without costs.

In this medical malpractice action, the motion court properly exercised its discretion in denying the infant plaintiff’s motion upon consideration of the pertinent statutory factors and (General Municipal Law §50-e[5]). The infant plaintiff’s mother’s excuse that she was unaware that she had a malpractice claim until she saw counsel’s advertisement more than four and one half years after the infant plaintiff’s birth and more than three and one half years after she became aware of his injuries, 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 for the more than three year delay from the time the notice was served until the instant motion was made.