DECISION AND ORDER Petitioner in this case moves for leave to file a late notice of claim against the Respondent New York City Health and Hospitals Corporation d/b/a Sea View Hospital Rehabilitation Center & Home (hereinafter “Respondent”). For the reasons set out herein, the motion is hereby GRANTED. General Municipal Law §50-e requires that in situations where a notice of claim is required, such notice must be served within 90 days after the claim arises. In wrongful death actions, however, the ninety days shall run from the appointment of a representative of the decedent’s estate. General Municipal Law §50-e(5) gives courts discretion to extend the time for filing a notice of claim. In exercising its discretion as to whether to extend the time to serve a late notice of claim under General Municipal Law §50-e(5), courts should consider various factors, including: (1) whether the public corporation has acquired actual knowledge of the essential facts constituting the claim within 90 days from its accrual or a reasonable time thereafter; (2) whether the delay substantially prejudiced the public corporation in defending on the merits; and (3) whether the claimant has demonstrated a reasonable excuse for failing to serve a timely notice of claim. (Khan v. New York City Health & Hosps. Corp., 135 A.D.3d 940, 941 (2d Dept. 2016)). The presence or absence of any one factor is not determinative. (See Kaur v. New York City Health & Hosps. Corp., 82 A.D.3d 891, 892 (2d Dept. 2011) Background In this case, the decedent was a patient at Respondent facility from January 2021 until December 30, 2021. The decedent contracted COVID while a resident there, and as a result, was hospitalized at Staten Island University Hospital (SIUH). The decedent passed away on January 10, 2022 at SIUH. Limited Letters of Administration were issued on April 21, 2022 appointing an estate representative; thus, the notice of claim should have been filed by on or about July 20, 2022, ninety days after the appointment of an administrator. Petitioner filed the instant petition seeking leave to file the notice on July 7, 2023, almost a year after the expiration of the 90-day period and prior to the expiration of the statute of limitations for medical malpractice. Petitioner in this case has not yet received medical records from Respondent and made two requests for such records in December 2022 and January 2023. Petitioner avers that this is due to the Respondent refusing to provide the records for a reasonable fee. Respondent asserts that they are permitted to charge for the provision of records. On this issue, the Court notes that respondent must produce those records and is entitled to charge a reasonable amount for their production, but not to exceed seventy-five cents per page (Public Health Law Secs. 17, 18(2)(e); see, Boltja v. Southside Hospital, 186 AD2d 774 (2d Dept.)). Petitioner also asserts that these record requests themselves put Respondent on notice of a possible claim. Petitioner’s papers include a proposed Notice of Claim (NYSCEF Doc No. 3), which describes the claim to include various alleged failures on the part of the Respondent, such as failing to have policies and procedures in place to stop the spread of COVID-19 within the facility, failing to take proper steps to protect residents and failing to properly diagnose and treat the Petitioner decedent. Petitioner also avers that Respondent facility was cited amidst the COVID-19 pandemic for not maintaining a proper infection prevention and control program regarding the virus. Discussion Applying the factors set out in General Municipal Law §50-e(5) and case law, the Court makes the following findings. Respondent acquired actual knowledge of the facts giving rise to the claim against it within the 90-day period, as it possesses medical and other records regarding decedent’s care since the decedent was a resident in the Respondent facility, including regarding the decedent’s illness, and regarding the transfer of the decedent to the hospital, where the decedent died about 11 days later. (Owens v. New York City Health & Hosps. Corp., 271 A.D.2d 514 (2d Dept. 2000)(no undue prejudice was caused by the delay since the New York City Health and Hospitals Corporation was in possession of the plaintiff’s medical records as of the time of the alleged malpractice and thus had actual notice of the claim and its underlying facts)). Thus, it possessed the essential facts constituting the petitioner’s claim. (See Khan v. New York City Health & Hosps. Corp., 135 A.D.3d at 942). Respondent also had actual knowledge of the facts giving rise to this claim because the claim is based in part on the Respondent facility’s policies, practices, procedures and response to the COVID-19 epidemic. Actual knowledge of the essential facts is an important factor in determining whether to grant an extension, and should be accorded great weight. (Kaur v. New York City Health & Hosps. Corp., 82 A.D.3d at 892). Here, the gravamen of the claim involves the spread of COVID-19 at the facility, the decedent’s infection with the COVID-19 virus, and his treatment at the facility while he was wholly in the Respondent’s care. (See West v. New York City Health & Hosps. Corp., 195 A.D.2d 517, 518 (2d Dept. 1993) (defendant had actual knowledge of the essential facts constituting the claim of malpractice within 90 days of the alleged malpractice, as they provided prenatal care to the mother, delivered the infant, and provided treatment in a neurology clinic for over a year after the infant’s birth). The Court finds that this case is unlike Williams ex rel. Fowler v. Nassau Cnty. Med. Ctr., 6 N.Y.3d 531, 539 (2006), cited by Respondent. There, the Court of Appeals noted that there was little in the hospital record to suggest an injury attributable to malpractice during the infant plaintiff’s delivery. The opinion indicates that while the delivery was difficult there “was scant reason to identify or predict any lasting harm to the child, let alone a developmental disorder or epilepsy.” This case is to be distinguished in that it involves a resident who contracted the COVID-19 virus while in the Respondent facility, and was transferred by the facility to a hospital when his condition worsened. It is also different in that it involves allegations regarding Respondent’s practices and policies regarding the COVID-19 virus, and thus, is of a very different character than a later developing disability that was alleged to have resulted from malpractice occurring years before during the infant’s delivery. Moreover, Williams notes that the length of the delay is an “influential” factor in considering leave to file a late notice, and Williams involved a ten-year delay, in contrast to the one-year delay involved in this case. (See also Kaur v. New York City Health & Hosps. Corp., 82 A.D. 3d at 892 (delay of nine years considered as well as absence of evidence in the medical records that would substantiate the claim of malpractice, based on the lack of informed consent). Respondent also cites to a number of First Department cases that found the presence or absence of a physician affidavit averring how hospital records or other documents evince or do not evince malpractice to be of some significance. The Court finds that these cases are distinguishable. Factually, this case is different in that it involves a resident of an in-patient facility which was responsible for his ongoing care. There appears to be no dispute but that the decedent/resident contracted COVID-19 at the facility. It is of a different ilk than cases where records were unremarkable regarding a later developed condition or complication. The presence or absence of any one factor is not determinative in deciding whether to permit a late notice of claim to be served, and the failure to set forth a reasonable excuse is not, by itself, fatal to the application. (See Kaur v. New York City Health & Hosps. Corp., 82 A.D.3d at 892; Velazquez v. City of N.Y. Health & Hosps. Corp. [Jacobi Med. Ctr.], 69 A.D.3d 441, 442 (1st Dept. 2010)). In this case, Petitioner explained that a paralegal no longer employed at the firm input the wrong facility name, making it appear that no public entity was involved in the matter. Counsel averred to these facts based upon his review of the his firm records. While he did not make the entries, he reviewed the records and based his affirmation on this review. Nevertheless, law office failure is typically not an acceptable excuse for the failure to timely comply with the notice of claim time requirements. (Baglivi v. Town of Southold. 301 A.D.2d 597, 598 (2d Dept. 2003). Here, that the Petitioner decedent died after being transferred to the hospital, and the matter is being brought on behalf of his estate, does provide some persuasive, reasonable excuse for the delay. (see Gen. Mun. Law §50-e(5)(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 for service of the notice of claim). Finally, the Court finds that there does not appear to be any significant prejudice to Respondent in this case, as Respondent has access to its own records regarding its residents, was aware of the COVID-19 diagnosis that occurred in its facility, and that the decedent was transferred to the hospital from its facility. It does not deny knowing that the decedent passed away in the hospital soon after the transfer. Nor does it deny having the decedent’s records which undoubtedly are subject to record retention requirements. Respondent and Petitioner each will have equal access to any SIUH records that may be needed in this case. Moreover, the Court finds that Respondent had notice of a potential claim when Petitioner’s attorney requested medical records, in December 2022 and January 2023, five to six months after the notice of claim was due. For all of these reasons, the Court exercises its discretion to allow the late notice of claim to be served in this case. Petitioner’s application is hereby granted and Petitioner shall serve such notice within 14 days of this Order. Dated: October 24, 2023
