DECISION & ORDER The e-filed documents for Motion Sequence 001, listed by NYSCEF document numbers “1,” through “12,” have been read and considered on this motion. Petitioner, Anthony J. Trentacosta, moves for an Order seeking the following relief: (1) pursuant to General Municipal Law §50-e(5), granting Petitioner leave to serve a late Notice of Claim against Respondents, Nassau University Medical Center and Nassau Healthcare Corporation a/k/a NuHealth, and deeming said Notice of Claim timely, nunc pro tunc; (2) deeming that pursuant to the nunc pro tunc relief sought above in item (1), Petitioner has satisfied the statutory thirty day period set forth in General Municipal Law §50-I(5), Petitioner has satisfied the statutory thirty day period set forth in General Municipal Law 50-I(1)(b); (3) deeming that any examination(s) of Petitioner pursuant to General Municipal Law §50-H are to be completed within fifteen days of service of an Order granting the above relief, with Notice of Entry; and (4) deeming that Petitioner’s Summons and Verified Complaint, dated July 15, 2024 be deemed timely, nunc pro tunc. This Petition for a late Notice of Claim is against Nassau University Medical Center (“NUMC”) and Nassau Healthcare Corporation a/k/a NuHealth (“NuHealth” and collectively hereinafter referred to as Respondents) and arises out of alleged negligence and medical malpractice claims suffered by Petitioner. Specifically, it is claimed that NuHealth, through its hospital NUMC and its agent(s), servant(s), and or employee(s) were negligent and departed from standards of good and accepted medical practice as outlined in the Proposed Notice of Claim, the Petition, and the Expert Affirmation of Dr. Kenneth Ackerman, MD. Petitioner’s Supporting Contentions In support of the instant application, Petitioner submits the following: 1) Proposed Notice of Claim; 2) Affidavit of Petitioner Anthony J. Trentacosta, dated July 15, 2024; 3) Expert Affirmation of Kenneth Ackerman, MD, dated July 15, 2024; 4) NUMC records from April 16, 2023-April 17, 2023 Admission; 5) Jamaica Hospital Records from April 16, 2023 Admission; and 6) Partial Mercy Medical Center Records from April 20, 2023-August 11, 2023 Admission. In further support, Petitioner maintains that the Respondents had timely “actual knowledge” of the facts constituting the claim. Petitioner refers to the expert affirmation of Kenneth Ackerman, M.D. Dr. Ackerman explains that NuHealth and its hospital NUMC had actual knowledge of the essential facts constituting the claim given that his review of the medical records clearly show injury attributable to malpractice and the need for treatment of Petitioner’s underlying and unspecified infection with further diagnostic testing. Furthermore, Petitioner contends that this Court should consider his claim because it has merit. Petitioner contends that the expert affirmation of Dr. Ackerman lays out a prima facie case for medical malpractice against NUMC and its medical providers, i.e. that Respondents departed from standards of good and accepted medical practice; and that such departures were substantial factors in bringing Petitioner’s injuries. Petitioner cites to multiple cases which hold that where the alleged medical malpractice is apparent from an independent review of medical records, those records constitute actual knowledge of the facts constituting the claim, for purposes of request for leave to serve late notice of claim, citing to Godoy v. Nassau Health Corp., 49 A.D.3d 541, 855 N.Y.S.2d 169 [2d Dept. 2008]; Cifuentes v. New York City Health & Hosps. Corp., 43 A.D.3d 385, 840 N.Y.S.2d 433 [2d Dept. 2007]); and Greene v. NYC Health & Hosps. Corp., 35 A.D.3d 206, 826 N.Y.S.2d 38 [1st Dept. 2007]). Additionally, Petitioner argues that the Court should grant Petitioner’s application because Respondents have not suffered any prejudice because of the delay in this application. Petitioner maintains that NUMC has not suffered any prejudice because of any alleged delay in the serving of a late Notice of Claim as NUMC had actual knowledge of the alleged malpractice because of the medical records, blood tests, films, and images. Petitioner maintains that he has made an initial showing that there is no substantial prejudice to the public corporation NuHealth because they have all the same resources available to Petitioner to evaluate the claim. Particularly, Petitioner claims, in medical malpractice claims, the case is evaluated by review of the medical records, interviewing, and questioning of witnesses, review of medical literature, and consultation with experts. Furthermore, Petitioner maintains that his claim is meritorious and that the Court should deem the proposed notice of claim timely served nunc pro tunc and find that claimant has satisfied all conditions precedent to filing a Summons and Verified Complaint. As previously referenced, the Petitioner submits the affirmation of Dr. Ackerman, a physician duly licensed to practice medicine in the state of New York, board certified in Internal Medicine. Dr. Ackerman states that he is familiar with the standards of good and accepted medical practice required for treating patients in the hospital setting who have suffered traumatic injuries and who are showing signs of symptoms consistent with an infection secondary to that trauma. He states that he reviewed the relevant medical records as they relate to the instant action, including but not limited to Petitioner’s records from Jamaica Hospital, NUMC, and Mercy. In his expert affirmation, Dr. Ackerman reiterates the underlying circumstances which led to the commencement of this action. Dr. Ackerman states that on April 14, 2023, Petitioner was hit by a car and taken by ambulance to the Emergency Department at Jamaica Hospital, where he was diagnosed with right sided 8-10 rib fractures. Petitioner’s initial blood tests revealed, inter alia, elevated white blood cell neutrophil values, which he sates were consistent with an infection. On the morning of April 16, 2023, Petitioner was discharged from Jamaica Hospital without any prescriptions for antibiotics or pain medication. Later that night, Petitioner was taken by ambulance to NUMC, complaining of pain in his right-sided ribs, right foot, right hand, left knee, and complaints of feeling feverish. He reported to the Emergency Department staff that he had a fever of 101.3 prior to presenting to NUMC. NUMC providers performed X-rays of Petitioner’s right ribs, right foot, right hand, and left knee. NUMC also performed a series of blood tests, including a CBC Differential, which indicated, inter alia, elevated white blood cells. Dr. Ackerman states that white blood cell count provides medical practitioners with the percentage of white blood cells in the blood. He further explains that elevated white blood cell count generally indicates that a patient is fighting off an infection. Furthermore, Dr. Ackerman states in his affirmation that the Petitioner’s complaints of fever, tachycardia, and significant pain in Petitioner’s right ribcage, along with his elevated white blood cell count, indicated further testing should have been conducted to determine whether he had developed an infection. Dr. Ackerman states that NUMC’s own records under “Assessment and Plan” state, “r/o PNA [pneumonia] as pts rib fxs [fractures] could have led to infection, no other obvious source of fever.” (emphasis added) Dr. Ackerman notes that no further testing was performed to determine the etiology of Petitioner’s infection, and on April 17, 2023, he was discharged home without antibiotics. Then, on April 20, 2023, Petitioner presented to Mercy Medical Center (“Mercy”), complaining of, inter alia, shortness of breath, extreme pain in his right ribcage and left leg, and bilateral swelling in both legs. While at Mercy, Petitioner was diagnosed with, inter alia, multiple septic emboli in his lung, rib abscesses near the site of his fracture’s ribs, deep vein thrombosis, and a gram-positive bacterial blood infection. On April 21, 2023, while admitted to Mercy, Petitioner suffered a major cardiac event, was revived, and was then admitted to the ICU where he was comatose for roughly one month. On August 11, 2023, he was discharged from Mercy and continued treating as an out-patient. It is Dr. Ackerman’s opinion, within a reasonable degree of certainty, that NUMC departed from standards of good and accepted medical care and practice, deprived Petitioner of a substantial chance for timely, meaningful medical intervention and a substantially better prognosis, and was a proximate cause and/or substantial contributing factor to the progression and severity of Petitioner’s bacterial blood infection, rib abscesses and multiple septic emboli in his lungs and its sequelae. He further states that his opinion is based in part on the fact that Petitioner presented to Dr. Ackerman states that the NUMC medical providers documented their suspicion of an infection in or around Petitioner’s ribcage, without ever determining a diagnosis and/or plan of care. Instead, Dr. Ackerman states that NUMC medical providers discharged Petitioner without a prescription for antibiotics, and his infection was able to progress. Dr. Ackerman delineates several other departures of standards of good and accepted medical care committed by NUMC and NuHealth. Dr. Ackerman opines within a reasonable degree of medical certainty, that NUMC has not suffered any prejudice as a result of any alleged delay in the serving of a late Notice of Claim in this matter. The basis for his opinion is that based upon his review of the medical records, NuHealth, by its employees and hospital NUMC, had actual knowledge of the malpractice as they treated Petitioner for the injuries he suffered from the malpractice he suffered and they certainly had access to all records, films, and images he reviewed, He concludes, based upon his opinion that the negligence and/or medical malpractice claims against NUMC and the providers that rendered care to Petitioner on April 15, 2023, through April 17, 2023, are appropriate and meritorious based on the facts and opinions outlined above. In further support, Petitioner submits his own affidavit in which he states, inter alia, that on April 21, 2023 he had a heart attack and had to be revived by the staff at Mercy. He states that he was in a coma for a month. He further states that when he came out of his coma, he developed other complications like bed sores, sepsis, and was extremely weak. He states that he did not get discharged from Mercy until August 11, 2023. Additionally, he states that in the months following his care at NUMC, he was not focused on anything except for his health. He states that although he filed a Note of Claim outside of the ninety days prescribed In GML §50-e(5), the Court has discretion to grant Petitioner leave to file a late Notice of Claim. The Court notes that Notice of claim was not filed until the initial filing and service of this Petition in July of 2024. Respondents’ Opposing Contentions In opposition, the Respondents argue that Petitioner’s application should be denied as the Petitioner has not demonstrated a reasonable basis for the delay in serving the Notice of Claim and has not demonstrated that the Respondents have not been prejudiced by said delay. First, Respondents allege that while Petitioner contends that the Respondents knew of the facts constituting the claim, the record of NUMC does not clearly show that the medical staff by its acts or omissions inflicted any injury on the Plaintiff. Respondent argues that the NUMC records show that when Petitioner presented to NUMC he did not have a fever. Within the records, Respondents state that there is no documentation of fever, only that “he noticed subjective fevers.” Respondent cites to Matter of Wally G. v. New York City Health & Hosps. Corp., 27 N.Y.3d 672, 37 N.Y.S.3d 30, 57 N.E.3d 1067, a Court of Appeals case that held that a medical provider’s mere possession or creation of a medical record does not ipso facto establish that it had knowledge of a potential injury where the records do not evince that the medical staff by its acts or omissions inflicted any injury on the plaintiff. In further support of this position, Respondents cite to Williams v. Nassau University Medical Center, 6 N.Y.3d 531, 814 NYS 2d 580 [2006], in which the Court of Appeals again held that merely having or creating a medical record without more does not establish actual knowledge of a potential injury where the records do not “evince” that the medical staff inflicted an injury on the plaintiff during the birthing process. Furthermore, the Court of Appeals, in Williams, upheld the Second Department, Appellate Division’s determination that the defendants did not have actual knowledge and the Court’s finding of substantial prejudice was within its discretion. Respondents argue that in the present matter, even if Dr. Ackerman’s Affirmation is believable, the NUMC records do not do more than suggest that malpractice occurred and that the Respondents had no actual knowledge of the claims by the Petitioner. Further, Respondents argue that Petitioner has not shown that the Respondents have not suffered any prejudice because of the delay in the application. Respondents maintain that the Petitioner was treated by various residents who may no longer be under the employ of the Respondents. Therefore, Respondents maintain that the late Notice of Claim is prejudicial as these personnel changes have hindered the Respondents ability to gather information. Additionally, Respondents allege that Petitioner provides no reasonable excuse for the delay in filing the Notice of Claim. Petitioner’s Reply In reply, Petitioner maintains that the evidence presented weighs in his favor, entitling him to the relief sought in the instant Petition. Petitioner reiterates that he has provided an initial showing of no substantial prejudice to Respondents because of the delay in the instant Petition. Petitioner cites to Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 465, 68 N.E.3d 714, 720 (2016), which held that “[a] finding that a public corporation is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record.” Petitioner maintains that the Respondents failed to provide any record evidence of substantial prejudice. Instead, the conclusory assert that Petitioner was treated by residents and fellows at NUMC that “may no longer be under the employ of the Respondents.” Petitioner argues, yet again, that the Respondents had actual knowledge of the facts constituting the claim. In support of his position, Petitioner contends that Dr. Ackerman opined that Respondents’ malpractice was apparent from an independent review of NUMC’s medical records. Further, Petitioners argue that Respondents’ did not offer an expert affirmation to rebut Dr. Ackerman’s medical opinions. Petitioner distinguishes the cases cited by Respondents, particularly Wally G. ex rel. Yoselin T. v. New York City Health & Hosps. Corp., 27 N.Y.3d 672, 676-7 (2016). In Wally G. there was a five-year delay between the alleged malpractice and the plaintiff’s motion to file a late notice of claim. Additionally, in Wally G., the expert affidavits submitted by plaintiff assert that “…HHC could have engaged in alternative courses of treatment which, in their view, would have produced different results, and the plaintiff’s health complications could have been avoided had HHC taken a different approach.” Wally G. ex rel. Yoselin T. v. New York City Health & Hosps. Corp., 27 N.Y.3d 672, 676-7 [2016]). Petitioner argues that in contrast, here, Petitioner’s expert has specifically opined that Respondents had actual notice of the essential facts underlying Petitioner’s claim and detailed specific departures from standards of good and accepted medical practice which were apparent after he reviewed the NUMC medical records. Dr. Ackerman did not speculate on potential avenues for different types of treatment — he provided specific departures by NUMC that caused Petitioner’s injuries. Petitioner also distinguishes the instant action from Williams ex rel. Fowler v. Nassau Cnty. Med. Ctr., 6 N.Y.3d 531, 847 N.E.2d 1154 (2006). In Williams there was a ten-year delay between the alleged malpractice and the plaintiff’s motion to file a late notice of claim. The Court in Williams denied plaintiff’s motion to file a late notice of claim, providing that although the length of the delay alone is not dispositive, this factor was heavily influential in their decision given the significant amount of time that passed, as well as the lack of apparent malpractice in the medical records. Petitioner argues that Williams, is distinguishable from the instant action. In the instant action, Dr. Ackerman opines that Respondents’ malpractice is apparent after an independent review of the medical records. Specifically, the failure of Respondents to properly identify and treat Petitioner’s underlying infection despite their acknowledgment of the same. Furthermore, Petitioner maintains that he has shown a reasonable excuse for the delay. Petitioner maintains he was recovering from his injury at Mercy Medical Center until his discharge on August 11, 2023. His focus during this time, and for some time after his discharge, was his physical and emotional recovery from his injuries. Discussion “A notice of claim is ‘a condition precedent to the commencement of an action or special proceeding against a public corporation.’” (Torres v. New York City Hous. Auth., 199 A.D.3d 852, 853-854, 157 N.Y.S.3d 522, quoting General Municipal Law §50-e[1][a]). In exercising its discretion to grant leave to serve a late notice of claim, the court must consider whether (1) the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter; (2) the claimant was an infant at the time the claim arose and, if so, whether there was a nexus between the infancy and the failure to serve a timely notice of claim; (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim; and (4) the public corporation was substantially prejudiced by the delay in its ability to maintain its defense on the merits. (See General Municipal Law §50-e[5]; Jara v. Elmhurst Hosp. Ctr., 213 A.D.3d 653, 653-54, 182 N.Y.S.3d 729, 731 (2023). “Although the presence or absence of any one factor is not determinative, whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter is of great importance.” (Jara v. Elmhurst Hosp. Ctr., 213 A.D.3d 653, 654, 182 N.Y.S.3d 729, 732 [2d Dept. 2023]) [internal citations omitted]. General Municipal Law §50-e (5) requires courts to exercise discretion in determining whether to grant or deny leave to file a late notice of claim. The statute “contains a nonexhaustive list of factors that the court should weigh and compels consideration of all relevant facts and circumstances”. (Berete v. New York City Health & Hosps. Corp., 48 A.D.3d 327, 328, 851 N.Y.S.2d 525, 526 [1st Dept., 2008]) Therefore, the Supreme Court’s decision to grant or deny a motion to serve a late notice of claim is purely a discretionary one so long as the determination is based on the factors set forth in General Municipal Law §50-e and is supported by record evidence, (see Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 465, 45 N.Y.S.3d 895, 68 N.E.3d 714 [2016]; Wally G., 27 N.Y.3d at 675, 37 N.Y.S.3d 30, 57 N.E.3d 1067; Townson v. New York City Health & Hosps. Corp., 158 A.D.3d 401, 402-03, 70 N.Y.S.3d 200, 203 [1st Dept. 2018]). GML §50-e(5) permits a claimant, within the discretion of the court, to serve a late Notice of Claim so long as the application seeking leave to serve a late Notice of Claim is filed within one year and ninety days from the date that claims accrued. As discussed below, in applying these criteria to this case, this Court finds that Petitioner provided a reasonable excuse for the delay and to establish that Respondents had actual notice of the claim. Duration of Delay While the Court notes that the Notice of Claim was filed over a year after the occurrence of the alleged malpractice, the presence or absence of any one factor is not determinative. Petitioner did state in his affidavit that he was hospitalized for ninety days from the date that the alleged claim arose. He remained hospitalized for another twenty-five days after the expiration of his time to serve a Notice of Claim on Respondents. Actual Knowledge of Essential Facts This Court finds the instant circumstance of this matter to be distinguishable from the facts in Wally G. and Williams. Dr. Ackerman opined that Respondents’ malpractice was apparent from an independent review of NUMC’s own medical records. Therefore, the Respondents’ medical records which included Petitioner’s complaints of fever, tachycardia as well as a blood test which confirmed an elevated white blood cell count did apprise the hospital of the facts underlying Petitioner’s claim. Of great significance was NUMC’s record which stated under “Assessment and Plan” as follows: “r/o PNA [pneumonia] as pts rib fxs [fractures] could have led to infection, no other obvious source of fever.” (emphasis added) As previously noted, Dr. Ackerman states in his affirmation that the Petitioner’s complaints of fever, tachycardia, and significant pain in Petitioner’s right ribcage, along with his elevated white blood cell count, indicated further testing should have been conducted to determine whether he had developed an infection. Dr. Ackerman noted that no further testing was performed to determine the etiology of Petitioner’s infection, and on April 17, 2023, he was discharged home without antibiotics. In opposition, Respondents did not submit an expert affidavit in response to Petitioner’s submission. Substantial Prejudice As to substantial prejudice, Respondents failed to show substantial prejudice beyond claiming unavailability of witnesses. No averment has been made that any witness is unavailable. Beyond a general claim that the delay has created prejudice, defendants have not shown this to be the case. (See Rojas v. New York City Health & Hosps. Corp., 127 A.D.3d 870, 873, 6 N.Y.S.3d 294, 298 [2d Dept. 2015]). Accordingly, it is hereby ORDERED, that Petitioner’s motion is granted in its entirety. Dated: December 11, 2024
