The following papers (e-filed documents 1-30) were read on (1) the E-filed petition for an order granting leave to serve a late notice of claim; and (2) the E-filed cross-motion for an order dismissing the petition.

Upon reading the foregoing papers it is

ORDERED the petition is granted, and the notice of claim attached to the petition is deemed timely served nunc pro tunc; and it is further

ORDERED the cross-motion is denied.

On July 8, 2015, petitioner suffered a back injury while working construction at the new Tappan Zee Bridge. He was transported to Phelps Memorial Hospital and arrived at its [*2]emergency room at approximately 5:00 p.m. About ninety minutes later he lost sensation from his chest down. Following a telephone consultation between the neurologist and the on-call neurosurgeon, petitioner was transported to the respondent, Westchester Medical Center (WMC). Petitioner was evaluated at WMC at 9:53 p.m. An MRI was ordered at 10:13 p.m. but not performed until 12:31 a.m. on July 9, 2015. The MRI showed an epidural hematoma with spinal compression from C3 to T2. The records presently available do not disclose when the MRI results were made known to the treating physicians, but at 1:52 a.m. it was determined that petitioner would be admitted to WMC's orthopedic unit. He was not transferred from the emergency room to the orthopedic unit until two hours later, at 4:56 a.m.. Spinal surgery was performed to evacuate an epidural hematoma compressing petitioner's spine. Surgery was concluded some time before 6:45 a.m. Petitioner was discharged to rehabilitation on July 18, 2015. At the time of his discharge petitioner had no sensation below T3 and no sensory and no motor function in his lower extremities.

Petitioner now seeks an order granting him leave to serve a late notice of claim.

"In exercising its discretion whether to grant leave to serve a late notice of claim, a court must consider various factors that include: (1) whether the public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days of its accrual or a reasonable time thereafter; (2) whether the delay substantially prejudiced the public corporation in maintaining its defense on the merits; (3) whether the claimant was an infant; and (4) whether the claimant demonstrated a reasonable excuse for the delay. While the presence or absence of any one of the several enumerated factors is not necessarily determinative, actual knowledge of the essential facts is an important factor in determining whether to grant an extension and should be accorded great weight" (Raut v. NY City Health & Hosps. Corp., WL 7444875 [2d Dept 2016][internal quotations and citations omitted]).

Here, petitioner's disability and his attorney's investigation into the claim provided a reasonable excuse for the delay (Pazinza v Westchester County Health Care Corp., 142 AD3d 669 [2d Dept 2016]).

In addition, petitioner demonstrated respondent would not be substantially prejudiced by the late notice of claim since the physicians and other personnel who treated petitioner remain affiliated with respondent (Matter of Khan v New York City Health and Hosps. Corp., 135 AD3d 940 [2d Dept 2016]). In opposition, respondent failed to rebut this showing with particularized evidence (Matter of Newcomb v Middle Country Central School, 2016 Slip Op. 08581 [2016]).

Finally, petitioner demonstrated that respondent had actual knowledge of the essential facts constituting petitioner's claim. The medical records in respondent's possession provide evidence that a delay in diagnosing and treating petitioner may have contributed to petitioner's injury. The records show that petitioner was paralyzed at the time he presented to the emergency room. The records show that an MRI was not performed until two hours after it was ordered, and that surgery was not performed until four hours after the results of the MRI were known and seven hours after petitioner arrived at the hospital. The records demonstrate that the cause of petitioner's paralysis was an epidermal hematoma compressing the spine, and that this condition was not addressed until seven hours after petitioner's admission to respondent's emergency room. The records show that the petitioner's paralytic condition was not mitigated by the surgery. Thus, the medical records in respondents's possession evince that respondent may have contributed to [*3]petitioner's injury by failing to timely diagnose and treat the hematoma which was compressing petitioner's spine for seven hours while he was in respondent's care before respondent treated the condition (Wally G. v New York City Health and Hosps. Corp., 27 NY3d 672 [2016]]; Williams v Nassau County Med. Ctr., 6 NY3d 531[2006]; Matter of Benjamin v Nassau Health Care Corp., 138 AD3d 966 [2d Dept2016]; Matter of Khan, v New York City Health and Hosps. Corp., 135 AD3d 940 [2d Dept 2016].