This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 95
Wally G., an Infant, by His
Mother and Natural Guardian,
Yoselin T.,
            Appellant,
        v.
New York City Health and
Hospitals Corporation
(Metropolitan Hospital),
            Respondent.



          John M. Daly, for appellant.
          Marta Ross, for respondent.
          New York State Conference of Mayors and Municipal
Officials, amicus curiae.




PIGOTT, J.:
           The issue on this appeal is whether the Appellate
Division abused its discretion in affirming Supreme Court's
denial of plaintiff's motion for leave to serve a late notice of
claim on defendant New York City Health and Hospitals Corp.
(HHC).   We hold that it did not.

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                                - 2 -                         No. 95

          General Municipal Law § 50-e (1) (a) requires that a
notice of claim be served on a public corporation "within ninety
days after the claim arises."   In medical malpractice actions,
"the cause of action accrues on the date when the alleged
original negligent act or omission occurred" (Young v New York
City Health & Hosps. Corp., 91 NY2d 291, 295 [1998] [citation
omitted]).
          A party seeking leave to serve a late notice of claim
must make an application to the court for that relief, and the
court, in its discretion, may extend the party's time to serve a
late notice (see GML § 50-e [5]).   In making that determination,
among other things, "the court shall consider, in particular,
whether the public corporation . . . acquired actual knowledge of
the essential facts constituting the claim within [ninety days] .
. . or within a reasonable time thereafter."1   Because the
decision to grant or deny an application for an extension under
section 50-e (5) is "purely a discretionary one" (Cohen v Pearl
River Union Free Sch. Dist., 51 NY2d 256, 265 [1980]), our review
is limited to whether the Appellate Division abused its
discretion in making such a determination (see Williams v Nassau
County Med. Ctr., 6 NY3d 531, 539 [2006], citing Matter of Murray
v City of New York, 30 NY2d 113, 119 [1972]; see also Pearson v


     1
        Section 50-e (5) additionally states that there are
"other relevant facts and circumstances" that the court must also
consider in making its determination whether late service should
be permitted.

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                                - 3 -                           No. 95

New York City Health & Hosps. Corp., 10 NY3d 852, 854 [2010]).
            Plaintiff was born prematurely by emergency cesarean
section on June 15, 2005.    He was transferred to the neonatal
intensive care unit and discharged in stable condition on August
10, 2005.
            On January 14, 2007, more than 90 days after the claim
arose, without first obtaining leave of court as required by
General Municipal Law § 50-e (5), plaintiff, by his mother and
natural guardian, served a notice of claim against HHC alleging
negligence and malpractice arising out of, among other things,
HHC's failure to properly treat and manage his mother's prenatal
care up until the date of plaintiff's delivery, and its failure
to obtain informed consent with regard to plaintiff's neonatal
and pediatric care.    It was claimed that plaintiff sustained
brain damage, cognitive defects, developmental, speech and
psychomotor delays, fetal and respiratory distress and seizure
disorder as a result of such negligence and malpractice.
            Plaintiff then brought suit against HHC in August
2008,2 but waited until December 2010, over five years after the
claim arose, to move for permission to serve a late notice of



     2
        With one exception not relevant here, the notice of claim
is "an element of the substantive cause of action and as such its
satisfaction must be pleaded in the complaint" (Siegel, NY Prac §
32 [Note: online treatise]). Plaintiff's complaint is not
included in this record, thus raising an additional question
whether plaintiff satisfied this condition precedent to bring
suit.

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                                   - 4 -                         No. 95

claim.       In support of that motion, plaintiff submitted voluminous
medical records along with affidavits from medical experts who,
based on those records, opined that HHC's deviations from the
standard of care resulted in plaintiff's injuries.
               HHC cross-moved to dismiss the complaint on the ground
that plaintiff failed to comply with General Municipal Law § 50-e
(5).       Supreme Court denied plaintiff's motion and granted HHC's
cross-motion."3
               A divided Appellate Division affirmed.   The majority
found unreasonable the excuse by plaintiff's counsel "that he
waited to make the motion [for leave to serve a late notice of
claim] until approximately three years and ten months after the
filing of the untimely notice of claim because he needed to
receive the medical records from HHC" (120 AD3d 1082, 1083 [1st
Dept 2014] [citation omitted]).       It also held that plaintiff
failed to establish "that the medical records put HHC on notice
that the alleged malpractice would subsequently give rise to
brain damage as a result of birth trauma and hypoxia or that he
would subsequently develop other deficits, delays and disorders"
(id.).       The dissenters, relying on our decision in Williams,
asserted that HHC's hospital chart "demonstrate[d] that HHC had
actual notice of the essential facts constituting the claim
within 90 days of accrual or a reasonable time thereafter,"


       3
       Supreme Court granted plaintiff's motion for reargument,
and, upon reargument, adhered to its prior determination.

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stating that such records "merely need to suggest injury
attributable to malpractice" (120 AD3d at 1093 [emphasis in
original]).   In the dissent's view, the affidavits of plaintiff's
experts established that HHC's "delay in performing an emergency
cesarean section and in providing immediate ventilation through
intubation, and its discussion of subsequent neurological
sequelae with the parents after the diagnosis of the grade III
[intraventricular hemorrhage], while not dispositive, suggest[ed]
injury attributable to medical malpractice" (id. [emphasis
supplied]).
          Plaintiff appealed to this Court as of right pursuant
to CPLR 5601 (a), and we now affirm.
          The affidavits submitted by plaintiff's experts simply
interpreted the medical records and posited that HHC could have
engaged in alternative courses of treatment which, in their view,
would have produced different results, and that plaintiff's
health complications could have been avoided had HHC taken a
different approach.   However, mere assertions that a different
course of treatment could have been followed does not address
whether HHC had actual knowledge of the essential facts necessary
to properly defend itself in the underlying action.   On this
record, it cannot be said that the lower courts abused their
discretion in denying service of a late notice of claim.
          In Williams, we held that section 50-e (5)'s actual
knowledge requirement "contemplates 'actual knowledge of the


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                               - 6 -                          No. 95

essential facts constituting the claim,' not knowledge of a
specific legal theory" (Williams, 6 NY3d at 537).   A medical
provider's mere possession or creation of medical records does
not ipso facto establish that it had "actual knowledge of a
potential injury where the records do not evince that the medical
staff, by its acts or omissions, inflicted any injury on
plaintiff during the birth process" (id. [emphasis supplied]).
          Contrary to plaintiff's argument and the rationale of
the dissent below, the medical records must do more than
"suggest" that an injury occurred as a result of malpractice.
That argument implies that so long as medical experts reasonably
disagree as to whether, based on their respective interpretations
of the medical records, the medical staff deviated from the
standard of care, a factual question is present and an
application for service of late notice must be granted as a
matter of law.   While we stated in Williams that there was
"little to suggest injury attributable to malpractice" in that
particular case, our use of the word "suggest" was not intended
to deviate from our holding in that case that the medical records
must "evince that the medical staff, by its acts or omissions,
inflicted an[] injury on plaintiff . . ." in order for the
medical provider to have actual knowledge of the essential facts
(Williams, 6 NY3d at 537).
          For purposes of determining whether leave to serve a
late notice of claim should be granted, determinations concerning


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a medical provider's "actual knowledge" and whether the medical
records "evince" that the medical provider inflicted injury on
the plaintiff rest in the sound discretion of the court.   Our
review is thus limited to whether there was an abuse of
discretion in denying service of late notice.   We discern no such
abuse of discretion.
          Accordingly, the order of the Appellate Division should
be affirmed, with costs.




                              - 7 -
Wally G. v New York City Health and Hospital Corp.
No. 95




ABDUS-SALAAM, J.(dissenting):
           Because I believe that the courts below abused their
discretion in holding that infant plaintiff Wally G.'s hospital
records did not provide defendant New York City Health and
Hospitals Corporation (HHC) with actual knowledge of injury
attributable to its potential malpractice, I dissent.
           Wally -- who suffers from a range of neurological and
cognitive deficits and disorders, including cerebral palsy,
seizures, and speech defects -- served, through his mother, a
late notice of claim on HHC, without leave of court, alleging
that HHC failed to timely and properly treat fetal distress and
deliver him.   At issue in this case is whether the courts below
abused their discretion in denying Wally's motion for an order
deeming the previously-filed notice of claim timely nunc pro tunc
or, in the alternative, granting him permission to file a late
notice of claim.   Wally asserts that his motion should have been
granted because HHC's medical records supplied it with actual
knowledge of the essential facts constituting his present claim
and therefore HHC would not be prejudiced by permitting the late
filing.   The majority concludes that the courts below did not
abuse their discretion in denying Wally's motion because his


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                                - 2 -                        No. 95

medical records did not provide HHC with actual knowledge of the
facts underlying his claim.    That conclusion, however, is belied
by the record in this case.
          General Municipal Law § 50-e requires that a notice of
claim be served on a municipal defendant in a tort action within
90 days of accrual.   Where a plaintiff fails to comply with the
time limit under the statute, courts may in their discretion
extend the time to serve the notice of claim (see General
Municipal Law § 50-e [5]).    In determining an application to
serve a late notice of claim, the court must weigh "all . . .
relevant facts and circumstances," including, as relevant here,
"whether the [defendant] . . . acquired actual knowledge of the
essential facts constituting the claim within the time specified
[in General Municipal Law § 50-e (1) (a)] or within a reasonable
time thereafter" (id.).   Additionally, the court may also
consider the plaintiff's infancy and whether service of a late
notice of claim would "substantially prejudice" the defendant
(id.; see generally Williams v Nassau County Med. Ctr., 6 NY3d
531, 535 [2006]).   Courts of this State have recognized that
General Municipal Law § 50-e "is not intended to operate as a
device to frustrate the rights of individuals with legitimate
claims" (Matter of Porcaro v City of New York, 20 AD3d 357,357-59
[1st Dept 2005]) and because of its remedial nature, it should be
liberally construed (see id.; Matter of Ruperti v Lake Luzerne
Cent. School Dist., 208 AD2d 1146, 1147 [3d Dept 1994]; Robb v


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New York City Hous. Auth., 71 AD2d 1000, 1001 [2d Dept 1979];
Kaiser v Town of Salina, 20 AD2d 312, 314 [4th Dept 1964]; see
also Adkins v City of New York, 43 NY2d 346, 350 [1977]).
          In Williams v Nassau County Med. Ctr. (6 NY3d 531), we
addressed our standard for determining when the filing of a late
notice of claim based on actual knowledge of the essential facts
should be permitted.   We held that
          "[m]erely having or creating hospital
          records, without more, does not establish
          actual knowledge of a potential injury where
          the records do not evince that the medical
          staff, by its acts or omissions, inflicted
          any injury on plaintiff during the birth
          process. The relevant inquiry is whether the
          hospital had actual knowledge of the facts —
          as opposed to the legal theory — underlying
          the claim" (id. at 537).
          In Williams, the mother had a difficult delivery.
Nassau County Medical Center employees gave the mother Pitocin, a
drug used to facilitate birth.    Thereafter the medical staff
attempted twice to deliver the child through vacuum extraction,
but ultimately had to use forceps which resulted in breaking the
child's clavicle.   The hospital records indicated that the
mother's pelvis was inadequate in size to accommodate the child's
head, but otherwise noted that the delivery was without
complication.   The child complained that his epilepsy and
developmental disabilities were the result of the hospital's
negligence during his birth.   We affirmed the denial of a motion
to file a late notice of claim because, although the hospital
records evinced a difficult delivery, "there was scant reason to

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identify or predict any lasting harm to the child" (id.).   We
stated that "[w]here, 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" (id.).
          As stated by the majority, our holding in Williams
requires that the hospital records evince actual knowledge that
the medical staff, by its acts or omissions, inflicted injury on
the plaintiff.   However, contrary to the majority's conclusion,
under that standard, the medical records submitted by Wally in
support of his motion to file a late notice of claim demonstrate
that HHC had actual knowledge of the facts underlying Wally's
claim.
          Wally's medical records demonstrate that mother's
delivery was particularly complicated, leaving Wally with a
number of defects, and as a result, the hospital could predict
lasting harm to Wally.   In particular, the records show that
Wally was born premature, in the seventh month of gestation.
Prior to his birth, Wally's mother -- a diabetic with a history
of a prior miscarriage and a prior premature birth at 29 weeks --
presented at HHC's Metropolitan Hospital on numerous occasions
complaining of vaginal bleeding and blood clots.   Following
multiple discharges, mother was ultimately diagnosed with
possible chronic placental abruption but, nonetheless, she was
again discharged from the hospital and instructed to follow up


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with the clinic.   Thereafter, mother returned to Metropolitan,
stating that she continued to experience vaginal bleeding and
also passed blood clots.   Her condition worsened while in the
hospital, demonstrating "symptom[s] of chorioamnionitis."1     An
attending doctor's note states that at one point the fetal heart
rate was in the tachycardic range, indicating an abnormal
increase in the heart rate.   The hospital staff determined that
mother should deliver by caesarean section, and indicated in the
preoperative notes that mother in fact had a placental abruption
with active bleeding.
          Immediately following his birth, Wally was transferred
to the neonatal intensive care unit.   According to the
obstetrical chart, Wally's Apgar score2 was five at one minute
after birth and seven at five minutes.   Wally was unable to
breathe on his own after birth, but was not immediately
intubated.   He was eventually placed on a mechanical ventilator;
however, he was already experiencing hypoxia, or lack of oxygen.
Wally's hospital records also indicate that he suffered a grade
III intraventricular hemorrhage (IVH).   Based on this injury, an
attending spoke with Wally's parents about the possibility of



     1
        Chorioamnionitis is an infection of the placental
membrane which compromises the ability of the placenta to supply
oxygen to the fetus.
     2
        An Apgar score is used to evaluate the condition of a
newborn infant. The range is from zero to 10, with 10 being a
perfect score.

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brain damage and referred Wally to the developmental clinic and
early intervention programs.   Wally's medical records also
indicate that five months following his discharge from the
hospital, his mother brought him back complaining of seizure
activities.
          As recounted by the three expert affirmations Wally
submitted in support of his motion, the hospital records show
that HHC departed from good and accepted medical practice which
proximately caused Wally's neurological deficits.    In particular,
the experts opined that mother was not prescribed the proper
course of antibiotics during her earlier visits to the hospital,
that Wally should have been delivered by cesarean section sooner,
and that he should have been immediately intubated following
birth, the failure of which likely caused his IVH.   Under these
circumstances, it is difficult to understand how HHC could deny
having actual knowledge of the facts underlying Wally's claims.
          The majority's conclusory assertion that the records,
expert testimony, and other facts "do[] not address whether HHC
had actual knowledge of the essential facts necessary to properly
defend itself in the underlying action" (majority op. at 5),
turns a blind eye to the wealth of record evidence demonstrating
HHC's actual knowledge.   All of the facts relied upon by Wally to
support his claims of medical malpractice are in HHC's medical
records, which satisfies the relevant inquiry we established in
Williams -- namely, "whether the hospital had actual knowledge of


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the facts -- as opposed to the legal theory -- underlying the
claim" (6 NY3d at 537).   To review, Wally's medical records
establish that mother experienced a difficult pregnancy and was
at risk of premature delivery.    Mother was repeatedly discharged
from the hospital despite the recurrence of vaginal bleeding.
Although a placental abruption had been ruled out, it was
ultimately determined that mother did in fact have a placental
abruption which contributed to the vaginal bleeding she
experienced.   The records show that mother had chorioamnionitis
and Wally experienced fetal tachycardia and hypoxia, which his
experts affirm was a result of the hospital's negligence in
failing to timely deliver him by cesarean section and the failure
to immediately intubate him following his birth.   One of Wally's
experts claims that this failure likely caused his severe IVH.
          Most compelling is the discussion between the
hospital's medical staff and Wally's parents concerning the risk
of brain damage after Wally suffered the IVH.   This clearly
indicates that the hospital was aware that the conditions under
which Wally was born could have lasting effects.   Furthermore,
Wally returned to the hospital with seizure activity a mere five
months after being discharged.    This visit certainly put HHC on
notice that Wally was potentially injured.   Although Wally may
have been discharged from the hospital "in stable condition"
(majority op, at 3), as is normally the case, there is clear
evidence in his medical records that Wally would suffer lasting


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harm due to injuries resulting from his birth.   Thus, it is not
surprising that Supreme Court noted that if a motion were made on
summary judgment grounds, the motion would be denied, and it is
equally unsurprising that two justices of the Appellate Division
dissented.
          HHC's experts dispute Wally's claims, contending that
IVH, as well as his other injuries, are common corollaries to
premature delivery.   However, those issues, which are relevant to
the merits of the underlying malpractice claim, must be
distinguished from the conceptually separate legal question of
whether the medical records put HHC on actual notice that its
staff may have harmed Wally.
          Because Wally's medical records provided HHC with
actual knowledge, Wally's delay in filing a late notice of claim
did not prejudice HHC.   That notice, although late and improperly
served without leave of court, clearly put HHC on notice of
Wally's legal claims, allowing it to commence its investigation.
Our primary concern at this juncture is whether HHC's records
provided it with actual knowledge of the facts underlying the
claim, not the viability of that claim.   Because General
Municipal Law § 50-e is to be liberally construed and not present
a barrier to a legitimate claim, I conclude that the courts below
abused their discretion by denying Wally's motion to file a late
notice of claim.




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*   *   *   *   *   *   *   *    *      *   *   *   *   *   *   *   *
Order affirmed, with costs. Opinion by Judge Pigott. Chief
Judge DiFiore and Judges Stein and Garcia concur. Judge
Abdus-Salaam dissents in an opinion in which Judges Rivera and
Fahey concur.

Decided June 9, 2016




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