The infant petitioner, Saad Muhammed, was born at defendant Hospital on February 5, 2000. The child was born prematurely at approximately 31-weeks gestation. It is alleged that the infant plaintiff suffers from, inter alia, cerebral palsy, spastic diplegia and developmental delay as a result of defendant's failure to properly diagnose the amniotic infection of plaintiff infant's mother, Sayyeda Fozia Tariq, and the defendant's failure to properly monitor and intervene during the labor and delivery process.

In General Municipal Law § 50-e, the Legislature enacted a protocol for serving a notice of claim as a condition precedent to a suit against a public corporation. Pursuant to General Municipal Law § 50-e(5), a court has the discretion to extend a petitioner's time to serve a notice of claim, as long as the extension does not exceed the time limit for commencement of an action against the public corporation (see Lucero v New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 33 AD3d 977 [2006]). Section 50-e(1) requires that the notice be served within 90 days after the claim arises. The Legislature, however, gave courts discretion to extend the time and devised criteria for determining whether to grant extensions (see Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006]; Cohen v Pearl Riv. Union Free School Dist., 51 NY2d 256 [1980]). General Municipal Law § 50-e(5) instructs the court to consider certain factors, including whether (1) an infant is involved, (2) the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (3) the municipality acquired actual knowledge of the facts constituting the claim within 90 days from its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the municipality in maintaining its defense on the merits (see General Municipal Law § 50-e[5]; Matter of Ramirez v County of Nassau, 13 AD3d 456 [2004]; Matter of Flores v Nassau County, [*2]8 AD3d 377 [2004]).

Section 50-e(5) reads in pertinent part:

"Upon application, the court, in its discretion, may extend the time to serve a notice of claim specified in paragraph (a) of subdivision one. The extension shall not exceed the time limited for the commencement of an action by the claimant against the public corporation. In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits."

Merely 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. Here the record reflects, inter alia, the following factors: the infant was premature, i.e., born at approximately 31-weeks gestation; was of low birth weight, i.e., 3.2 pounds; needed immediate oxygen resuscitation and was on oxygen for five days after his birth; was transferred after birth to the NICU (Neonatal Intensive Care Unit) and remained hospitalized for one month after his birth. Under these circumstances, defendant's possession of the medical records sufficiently constituted actual notice of the pertinent facts (Cifuentes v New York City Health & Hosps. Corp., 2007 NY Slip Op 6343, 2 [2007]; Greene v New York Health & Hosps. Corp., 35 AD3d 206, 207 [2006]; Nardi v County of Westchester, 18 AD2d 521 [2005]; Montero v New York City Health & Hosps. Corp., 17 AD3d 550 [2005]). Moreover, in light of the defendant's actual knowledge of the essential facts constituting the claim, there is no substantial prejudice to its maintaining a defense (see Matter of Corvera v Nassau County Health Care Corp., 38 AD3d 775 [2007]; Matter of Vasquez v City of Newburgh, 35 AD3d 621 [2006]; Matter of Tapia v New York City Health & Hosps. Corp, 27 AD3d 655 [2006]). Finally, "where, as here, there was actual notice and an absence of prejudice, the lack of a reasonable excuse for failing to timely serve a notice of claim will not bar the granting of leave to serve a late notice of claim" (Matter of Hendershot v Westchester Med. Ctr., 8 AD3d 381, 382 [2004]). Accordingly, the notice of claim is deemed to be timely served, nunc pro tunc. [*3]

However, since the infancy toll (see CPLR 208) is personal to the infant plaintiff, Saad Muhammed, it does not extend to the derivative cause of action of the mother, Sayyeda Fozia Tariq (see Nardi v County of Westchester, supra; Vaynman v Maimonides Med. Ctr., 4 AD3d 414 [2004]; Smith v Long Beach City School Dist., 276 AD2d 785 [2000]; Dong T. Chen v New York City Health & Hosps. Corp., 270 AD2d 445 [2000]). Accordingly, the derivative claims of Sayyeda Fozia Tariq are hereby dismissed.

Leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice or surprise resulting directly from the delay (see CPLR 3025[b]; McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]). While the plaintiffs sought to amend their bill of particulars after the note of issue was filed, the affirmation of their medical expert established a reasonable excuse for the delay and the merits of the proposed amendment. Furthermore, contrary to the defendant's contention, mere lateness is not a barrier to the amendment (see Edenwald Contr. Co. v City of New York, 60 NY2d 957 [1983]), and there was no showing of significant prejudice or surprise (see Loadholt v Rams Beer & Soda, 273 AD2d 446 [2000]). Accordingly, the Court, in its discretion, grants the plaintiffs leave to serve an amended bill of particulars to include additional allegations in support of the theory of medical malpractice set forth in prior pleadings (see Aiello v Long Island College Hosp., 300 AD2d 607 [2002]; Jones v Lynch, 298 AD2d 499 [2002]; Loadholt v Rams Beer & Soda, supra; Risucci v Homayoon, 122 AD2d 260 [1986]).

In support of its motion for summary judgment, defendant Hospital submits the affirmation of Vincent M. D'Amico, M.D., who is board certified in obstetrics and gynecology. Dr. D'Amico concludes that defendant Hospital did not depart from good and accepted standards of medical practice with respect to its treatment of the infant plaintiff and that it did not contribute to or proximately cause his injuries. This evidentiary submission, which indicates that defendant Hospital did not deviate from accepted standards of medical care, is sufficient to meet defendant's burden as a proponent of a summary judgment motion (see Alvarez v Prospect Hosp., 68 NY2d 320 [1987]; Berger v Becker, 272 AD2d 565 [2001]; Juba v Bachman, 255 AD2d 492 [1998]; Whalen v Victory Memorial Hosp., 187 AD2d 503 [1983]).

The burden now shifts to plaintiffs to respond with rebutting medical evidence demonstrating that defendant's actions were a departure from the accepted standard of care in the medical community (see Alvarez v Prospect Hosp., supra; Whalen v Victory Memorial Hosp., supra) and a proximate cause in bringing about the injury (see, Mortensen v Memorial Hosp., 105 AD2d 151 [1985]).

In opposition to defendant's motion, plaintiffs submit the affirmation of Rosario R. Trifiletti, M.D., board certified in pediatric neurology, who opines that defendant Hospital's departures from good and accepted standards of medical practice, inter alia, "in failing to timely diagnose chorioamnionitis and to perform a c-section ... substantially contributed to perinatal brain injury, the consequences of which include cerebral palsy." Plaintiffs also submit the affirmation of Bruce L. Halbridge, M.D., board certified in obstetrics and gynecology, who [*4]asserts that defendant Hospital "departed from good and accepted medical practice by ... failing to diagnose chorioamnionitis and failing to perform a cesarean section ..." and that "these departures substantially contributed to the infant's brain injury, the consequences of which include cerebral palsy."

Thus, the affirmations of Dr. Trifiletti and Dr. Halbridge raise questions of fact involving the issues of malpractice and proximate cause as to whether the infant plaintiff suffered injury due to the treatment he received from defendant Hospital (see Sisko v New York Hosp., 231 AD2d 420 [1998]; Evans v Holleran, 198 AD2d 472 [1994]).

Accordingly, those branches of defendant's motion which seek to dismiss the complaint for failure file a timely notice of claim and for summary judgment are denied; that branch of defendant's motion seeking to dismiss the derivative claims of Sayyeda Fozia Tariq is granted. Plaintiffs' cross motion for an order deeming plaintiffs' notice of claim to be timely served nunc pro tunc and to serve an amended bill of particulars is granted in its entirety.

Dated: September 21, 2007

J.S.C.