               SUPREME COURT OF THE STATE OF NEW YORK
                  Appellate Division, Fourth Judicial Department

35
CA 11-01729
PRESENT: SCUDDER, P.J., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.


TIMOTHY C. CLARK, CLAIMANT-RESPONDENT,

                    V                                     MEMORANDUM AND ORDER

ROSWELL PARK CANCER INSTITUTE CORPORATION,
DEFENDANT-APPELLANT.


GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (JENNIFER L. NOAH OF COUNSEL),
FOR DEFENDANT-APPELLANT.

BROWN CHIARI LLP, LANCASTER (MICHAEL R. DRUMM OF COUNSEL), FOR
CLAIMANT-RESPONDENT.


     Appeal from an order of the Court of Claims (Michael E. Hudson,
J.), entered December 3, 2010 in a medical malpractice action. The
order granted the application of claimant for leave to serve a late
notice of claim.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Contrary to defendant’s contention, the Court of
Claims did not abuse its discretion in granting claimant’s application
for leave to serve a late notice of claim pursuant to General
Municipal Law § 50-e (5). “The court is vested with broad discretion
to grant or deny [such an] application” (Wetzel Servs. Corp. v Town of
Amherst, 207 AD2d 965). Although claimant failed to offer a
reasonable excuse for his failure to serve the notice of claim within
the 90-day statutory period (see § 50-e [1] [a]), that failure “ ‘is
not fatal where . . . actual notice was had and there is no compelling
showing of prejudice to [defendant]’ ” (Hale v Webster Cent. School
Dist., 12 AD3d 1052, 1053; see Matter of LaMay v County of Oswego, 49
AD3d 1351, 1352, lv denied 10 NY3d 715). Here, defendant had actual
notice of the facts constituting the claim by virtue of its possession
of medical records pertaining to claimant’s care and treatment while
he was a patient of defendant (see Kavanaugh v Memorial Hosp. &
Nursing Home, 126 AD2d 930, 931). The treatment provided by defendant
forms the basis of the alleged malpractice, and the relevant facts are
contained in defendant’s own records (see Rechenberger v Nassau County
Med. Ctr., 112 AD2d 150, 152). Finally, we conclude that defendant
                                 -2-                            35
                                                         CA 11-01729

was not prejudiced as a result of the delay in the filing of a notice
of claim.




Entered:   February 17, 2012                    Frances E. Cafarell
                                                Clerk of the Court
