Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present:         HONORABLE CHARLES J. THOMAS       IA Part     13
                                  Justice

________________________________________
                                       x            Index
MATTER OF GWETHADONNA FLITTS, etc.                  Number 152 1997

        - against -                                 Motion
                                                   Date December 1, 1999
SERGIO A. AGUILAR, M.D., et al.
                                                   Motion
________________________________________x           Cal. Number 4

The following papers numbered 1 to 20 read on this motion by plaintiff for leave to amend the notice of claim or, in the alternative, for leave to serve a late notice of claim; and cross motion by defendant New York City Health and Hospitals Corporation (hereinafter "NYCHH") for dismissal of the complaint for failure to timely file a notice of claim and commence this action within the limitation period set forth under General Municipal Law ' 50-i; and cross motion by defendant Aguilar for summary judgment.

                                                        Papers
                                                        Numbered

Notice of Motion - Affidavits - Exhibits......... 1 - 4
Notices of Cross Motion - Affidavits - Exhibits .. 5 - 12
Answering Affidavits - Exhibits ................. 13 - 16
Reply Affidavits ................................ 17 - 20

Upon the foregoing papers it is ordered that the motion and cross motions are determined as follows:

On October 1, 1996 plaintiffs filed a notice of claim on behalf of the infant plaintiff as well as a derivative claim by the infant's mother alleging various acts of medical malpractice occurring on or about February 22, 1991. This action was commenced on January 3, 1997 and an amended notice of claim was thereafter served on May 20, 1999 which was rejected by NYCHH.

NYCHH premises its cross motion for dismissal on the fact that the interests of the infant plaintiff were represented by a legal guardian and by counsel on December 30, 1994 when plaintiffs' attorney made an initial request for medical records. Relying on Henry v City of New York, (244 AD2d 93), NYCHH concludes that the infant plaintiff was no longer under an infancy disability after December 1994, precluding the application of the tolling provisions of CPLR 208 and rendering both the filing of the notice of claim and institution of this action untimely. Following the submission of this motion, the Court of Appeals in Henry v City of New York, (94 NY2d 275) reversed the holding of the Second Department. As stated therein, infancy itself is the disability that determines the toll and it would be against the strong public policy of this State to permit the conduct of a parent or guardian to forfeit the rights accorded an infant. In view of the foregoing, this matter will not be considered time barred on the basis of any initial activity by the personal representatives of the infant plaintiff.

Upon review of the facts, it is clear, however, that the service of the notice of claim on October 1, 1996 without leave of court was a nullity. (Mack v City of New York, ___ AD2d ___, 696 NYS2d 206; Kokkinos v Dormitory Auth. of New York, 238 AD2d 550) and any attempt to amend this notice is impermissible. Plaintiff seeks, in the alternative, leave to serve a late notice of claim solely on behalf of the infant plaintiff.

A notice of claim against a municipality must generally be served within 90 days after the claim arises. (General Municipal Law ' 50-e.) When the claimant in a medical malpractice action is an infant, this period of time may be extended by the 10 year toll provided by CPLR 208. (Matter of Daniel J. v New York City Health and Hosps. Corp., 77 NY2d 630.) Pursuant to subdivision 5 of section 50-e of the General Municipal Law, the factors considered by the court in granting leave to serve a late notice of claim will include whether actual knowledge was acquired by the municipality, claimant's infancy and any prejudice to the public corporation.

The infancy of a claimant will not alone compel the granting of the application. (Matter of Knightner v City of New York, ___ AD2d ___, 2000 WL 144116; Matter of Kurz v New York City Health and Hosps. Corp., 174 AD2d 671.) The papers presented do not establish any nexus between the extensive delay involved in this case and the infancy of the plaintiff (Moise v County of Nassau, 234 AD2d 275; Matter of Matterese v New York City Health and Hosps. Corp., 215 AD2d 7; Matter of Bischert v County of Westchester, 212 AD2d 529) nor do the affidavits submitted even specify the exact nature of the infant's present condition or when these conditions first manifested themselves. (Matter of Anderson v Nassau County Med. Center, 135 AD2d 530.) In addition, plaintiff's medical affidavit is further deficient in failing to provide the underlying basis from which his ultimate conclusions are derived. (Romano v Stanley, 90 NY2d 444.) Inasmuch as several doctors and others involved in the infant's care at the pediatric clinic are no longer in the employ of NYCHH, ample basis exists to conclude that this defendant has been prejudiced by the delay. (Moise v County of Nassau, supra; Matter of Matterese v New York City Health & Hosps. Corp., supra.)

Accordingly, leave to serve a late notice of claim is denied and the action is dismissed.

The cross motion by defendant Aguilar for summary judgment dismissing the complaint is granted. The allegations asserted against Dr. Aguilar essentially state that he improperly prescribed the drug Ceclor causing an allergic reaction which he failed to diagnose and treat. Defendant Aguilar met his initial burden on this motion by the submission of Dr. Krilov's affidavit which indicates no departures from accepted medical care occurred and that no medical basis exists to find that the use of Ceclor was the proximate cause of the severe neurological disabilities alleged. (Holbrook v United Hosp. Med. Center, 248 AD2d 358; Dormaradzki v Glen Cove OB/Gyn Assocs., 242 AD2d 282.) Plaintiff's opposition never addresses the medication issue and raises for the first time Dr. Aguilar's failure to take an immunization history, make an immediate diagnosis of measles and place the child in an appropriate scheme of care, as substantial contributing factors in the development of the infant's permanent neurological deficits. Even if this court accepted the truth of these new allegations, the vague references to the infant's injuries and conclusory assertion that they were probably caused by Dr. Aguilar's acts are an insufficient showing to defeat a summary judgment motion. (Alvarez v Prospect Hosp., 68 NY2d 320.)

Dated: March 8, 2000                       ____________________________
                                                       J.S.C.