Petitioner Ethyl Mathews, as administrator of the estate of Albert Mathews, moves by notice of petition to serve a late Notice of Claim pursuant to General Municipal Law ("GML") § 50-e on the City of New York, the New York City Health and Hospitals Corporation and Coney Island Hospital (collectively HHC.) The Notice of Claim against HHC includes causes of action for negligence.

On December 7, 2006, Albert Mathews ("Mathews") was admitted to Coney Island Hospital, an affiliate of HHC, with complaints of dizziness and headaches. It is alleged that Mathews was placed in a bed without bed rails and other protective equipment and fell off the bed resulting in a fracture of his femur. The patient underwent surgery to his femur on January 10th, 2007. Petitioner passed away on February 19, 2007. Sometime thereafter, Petitioner Ethyl Mathew, as Albert Mathews only surviving relative, applied to the Surrogates Court of Kings County to be named the administrator of her brother's estate. Such appointment was pending at the time of the petition.

Petitioner was required to file a timely Notice of Claim arising from the December 7, [*2]2006 incident by March 7, 2007, as the claim accrues from the date of the alleged tort. (Bennett v City of New York, 204 AD2d 587 [2nd Dept 1994], Jackson v Police Dept. of the City of New York, 119 AD2d 551 [2nd Dept 1990]). The instant notice was served on HHC on February 27, 2008, without leave of court. Therefore, the service of that notice is a nullity, because it was served without leave of court. (Kokkinos v Dormitory Authority of the State of New York, 238 AD2d 550 [2d Dept 1997.]) The notice of petition was served one (1) year, two (2) months and twenty (20) days after the claim accrued.

A court in its discretion may extend the time under GML § 50-e to serve a Notice of Claim. In exercising its discretion, the Court must focus on whether the movant has demonstrated a reasonable excuse for its failure to file a timely Notice of Claim, whether the municipality acquired actual knowledge of the essential facts constituting the claim within ninety (90) days from its accrual or a reasonable time thereafter, and whether the delay would substantially prejudice the municipality in maintaining its defense on the merits. (Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008], Acosta v City of New York, 39 AD3d 629 [2nd Dept., 2007], Rabanar v City of Yonkers, 290 AD2d 428 [2nd Dept., 2002], Christoforatos v City of New York, 285 AD2d 622 [2nd Dept., 2001].) In examining whether petitioner demonstrates any facts which could be considered as a reasonable excuse for delay in filing a notice of claim, the court looks to the language of GML 50-e (5) which states in relevant part:

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....

Here, the patient died within the ninety (90) day period to file a Notice of Claim, so it is clear that there are facts which establish a reasonable excuse for the delay, whether the death is related to the claim of negligence against HHC or not.

The court next considers whether the HHC received actual notice of the essential facts constituting the claims, within the ninety (90) days or a reasonable time thereafter. The Appellate Division Second Department in Matter of Felice v Easport/South Manor, 50 AD3d 138 [2d Dept 2008], has recently given clear guidelines to the court for analyzing whether the municipality has received actual notice of the facts stating.

We have consistently held that a public corporation's

knowledge of the accident and the injury, without more,

does not constitute "actual knowledge of the essential

facts constituting the claim" (General Municipal Law

§ 50-e [5]; see Weber v County of Suffolk, 208 AD2d

527, 528 [1994]), at least where the incident and the

injury do not necessarily occur only as the result of

fault for which it may be liable. In order to have actual

knowledge of the essential facts constituting the claim,

the public corporation must have knowledge of the facts

that underlie the legal theory or theories on which liability [*3]

is predicated in the notice of claim; the public corporation

need not have specific notice of the theory or theories themselves.

In Williams v Nassau County Med. Ctr., 6 NY3d 531 [2006], the Court of Appeals considered whether the actual medical records of the patient provided the hospital with the knowledge

and facts constituting the claim stating that:

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 actions or omissions, inflicted

any injury ...

The court in Williams further stated that:

The relevant inquiry is whether the hospital had

actual knowledge of the facts - as opposed to the

legal theory - underlying the claim.

In this case, the Court was prevented from conducting a review as the Williams court did because the Court does not have any medical records to examine to determine whether HHC received actual knowledge of the facts, nor was the Court given any documents or affidavits to demonstrate any knowledge on the part of HHC relating to the theories of negligence outline in the Notice of Claim.In light of petitioners failure to assert sufficient facts to support the contention that the respondents would not be prejudiced by the delay in their investigation and defense of the claim, the application to serve a late notice of claim is denied in its entirety ( Matter of Bruzzese v City of New York, 34 AD3d 577 [ 2d Dept 2006].)

The foregoing constitutes the decision and order of the Court.

_______________________

Robert J. Miller

J.S.C.

June 30, 2008