Gibbs v New York City Health & Hosps. Corp. (Jacobi Med. Ctr.), 2012 NY Slip Op 08784 [101 AD3d 557]

December 20, 2012

Appellate Division, First Department

— [*1]

Fitzgerald & Fitzgerald, P.C., Yonkers (John M. Daly of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Dona B. Morris of counsel), for respondents.

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 (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 4½ years after the infant plaintiff’s birth and more than 3½ 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.

Moreover, while plaintiff’s expert interpreted the hospital records in a manner that supported his theory of liability, the records do not, on their face, evince that the hospital’s acts or omissions inflicted injuries on the infant and thus, did not provide defendant hospital with timely, actual knowledge of the underlying claim ( see Williams v Nassau County Med. Ctr. , 6 [*2] NY3d 531, 537 [2006]; Webb v New York City Health & Hosps. Corp. , 50 AD3d 265 [1st Dept 2008]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Andrias, J.P., Friedman, DeGrasse, Manzanet-Daniels and Gische, JJ..