Matter of Molokwu v NYC Health & Hosps. Corp.

Supreme Court, Kings County

Decided on May 11, 2026

Index No. 540069/2025

Consuelo Mallafre Melendez, J.

Recitation, as required by CPLR § 2219 [a], of the papers considered in the review:

NYSCEF #s: 1 — 27, 28 —29, 33 — 35, 36 — 39

Petitioner moves for an Order, pursuant to Gen. Mun. Law § 50-e (5), permitting service of a late notice of claim, deeming the notice of claim timely filed nunc pro tunc, and compelling the respondents New York City Health and Hospitals Corporation ("NYCHHC") to provide a complete and unredacted [*2]copy of the patient's medical records, including hard copies of all diagnostic studies. NYCHHC opposes the motion.

The underlying notice of claim asserts personal injury and wrongful death claims on behalf of Mary Dale Tate ("Decedent"). The claims are grounded in alleged medical malpractice in breast cancer diagnosis and treatment.

As an initial matter, Gen. Mun. Law § 50-e provides that a municipal defendant must be served with a notice of claim within ninety days after the claim arises, "except that in wrongful death actions, the ninety days shall run from the appointment of a representative of the decedent's estate." In this case, Decedent died on April 5, 2025, and an administrator of her estate (for the purposes of asserting a wrongful death claim) has not yet been appointed by Surrogate's Court. Thus, the 90-day period has not begun to run for the wrongful death claim, and an extension of time is not necessary. This Petition applies only to the claims for Decedent's personal injuries, e.g., pain and suffering.

The treatment at issue occurred from approximately January 6, 2020 through February 7, 2025, when Decedent was diagnosed with stage IV breast cancer. Petitioner alleges that Decedent's providers at NYCHHC facilities Woodhull Hospital and Cumberland Health Center failed to timely diagnose her malignant tumor. Under the "Lavern's Law" provision of CPLR 214-a, both the statute of limitations and the 90-day notice of claim period began to run on February 7, 2025, and the time to file a notice of claim expired on or about May 8, 2025. Petitioner brought this application by Order to Show Cause on October 30, 2025, approximately five months after the 90-day period expired.

The Court notes that Petitioner, the Decedent's son, is named as the "Proposed Administrator and Current Voluntary Administrator" of her estate. He obtained a certificate of voluntary administration on July 18, 2025, which authorized him to obtain Decedent's medical records only (NYSCEF Doc. 5).

In their opposition, NYCHHC argues that granting leave to serve a late notice of claim would be "futile" because the Petitioner lacks legal capacity or standing to commence a lawsuit on Decedent's behalf. Petitioner's current status does not authorize him to represent the estate in a medical malpractice action, commenced by Summons and Complaint, pursuant to EPTL § 5-4.1 or EPTL § 11-3.2 (b). However, letters of administration are not required to file a notice of claim on an injured party's behalf, nor to seek leave from the court to file a late notice of claim, as Petitioner has done here. The primary purpose is giving notice to the municipal corporation of the underlying facts and nature of the claim. Such notice may be filed by someone who does not yet have legal authority as a guardian or administrator, and the action itself may be later adopted by someone "subsequently legally authorized to act on the claimant's behalf" (Figueroa v City of New York, 279 AD 771, 771 [2d Dept 1951]; see also Winbush v City of Mount Vernon, 306 NY 327 [1954]). It is therefore not improper to seek this relief through a Petition, which the Court may grant in its discretion pursuant to Gen. Mun. Law § 50-e (5).

"In determining whether to grant or deny leave to serve a late notice of claim, the court must consider in particular whether the municipality acquired actual knowledge of the essential facts constituting the claim within 90 days of the clam's accrual or within a reasonable time thereafter" (Jaime v City of New York, 41 NY3d 531, 540 [2024]). The court also considers other relevant facts and circumstances, including whether the petitioner "demonstrated a reasonable excuse for the failure to serve a timely notice of claim" and whether the delay "substantially prejudiced the public corporation in maintaining its defense on the merits" (see Matter of Newcomb v Middle Country Cent. School Dist., 28 NY3d 455, 461 [2016]; Ibrahim v New York City Tr. Auth., 202 AD3d 786, 787 [2d Dept 2022]). Whether the claimant "died before the time limited for service of the notice of claim" is also a relevant factor pursuant to the statute (Gen. Mun. Law § 50-e [5]). "The presence or absence of any one of these factors is not dispositive" (Balbuenas v New York City Health & Hosps. Corp., 209 AD3d 642, 644 [2d Dept 2022], quoting Rodriguez v Westchester Med. Ctr. [WMC], 196 AD3d 659, 660 [2d Dept 2021]). However, "courts are to place a great weight" on the factor of actual knowledge (Jaime, at 540, quoting Beary v City of Rye, 44 NY2d 398 [1978]).

It is well established that "mere possession or creation of records does not ipso facto establish [*3]actual knowledge'" (Jaime, at 545, quoting Wally G. ex rel. Yoselin T. v New York City Health and Hosps. Corp., 27 NY3d 672, 677 [2016]). In the case of a medical malpractice claim, the records themselves must "evince that the medical staff, by its acts or omissions, inflicted [an] injury on plaintiff" (Wally G., at 677; Williams v Nassau County Med. Ctr., 6 NY3d 531, 537 [2006]).

Here, Petitioner argues that NYCHHC had actual knowledge of the essential facts underlying the claim, submitting relevant medical records and radiological studies from January 2020 through April 2025. These records include mammograms dating back to January 6, 2020, when Decedent was noted to have "extremely dense" breast tissue and an ultrasound was recommended. Decedent underwent an ultrasound in August 2020, which was classified as "probably benign," and a six-month follow-up was recommended. Her mammograms and ultrasounds over the following years reported similar results of extremely dense tissue, bilateral auxiliary lymphadenopathy, and duct ectasia, classified as "benign" or "probably benign" with recommended follow-up every 12 months.

On January 2, 2025, as noted in the Cumberland records, Decedent was noted to have a firm mass in her right breast "present about two years" and was referred for a sonogram. A biopsy was recommended for the first time on January 23, 2025. A note in the Cumberland chart on January 30 documented a palpable "lump in the right breast for at least 18 months getting bigger," and a January 31 mammogram at Woodhull categorized her mass as "4C, high suspicion for malignancy." On February 7, 2025, she underwent a biopsy at Woodhull, which confirmed invasive and metastatic carcinoma. The records also include a primary care office visit to Cumberland Health Center on April 3, 2025, noting her "metastatic invasive ductal breast cancer" diagnosis, complaints of weakness, and 32-pound weight loss. She passed away on April 5, 2025.

Although the mere creation of records does not constitute actual knowledge, here the details of Decedent's potential medical malpractice claim can be gleaned from the records on their face. The NYCHHC facilities had contemporaneous records of her breast abnormalities, "benign" mammogram and "benign" or "probably benign" sonogram findings, the length of time between recommended follow-ups, and her ultimate diagnosis at an advanced stage of cancer. Based on these contemporaneous records, the Court finds that Petitioner has demonstrated NYCHHC's actual knowledge of the essential facts underlying the claim within the 90-day notice period.

Petitioner also submits a personal affidavit to support his argument that he had a reasonable excuse for the delay in filing a notice of claim. He notes that from the period between his mother's diagnosis in February and her death in April, she briefly underwent radiation therapy, and she was often "debilitated and in a weakened state," "lost a lot of weight," and was "very weak and depressed" from her terminal diagnosis.

He also avers that he was not immediately able to seek out legal services or pursue a lawsuit after his mother's death on April 5, 2025, as he was dealing with her sudden loss. He was then unable to obtain her medical records until he filed the paperwork to become a voluntary administrator in July 2025, traveling between Florida and New York to do so. He also states that the facilities were "uncooperative" in providing complete records, but after reviewing partial records from Cumberland Medical Center, he was able to pursue the claims and file the instant Order to Show Cause and proposed notice of claim within one month.

The Court finds Petitioner's affidavit and supporting documentation sufficiently demonstrates a reasonable excuse for the delay in filing a notice of claim. For the claimant herself, it is clear from the affidavit and supporting medical records that she was preoccupied with her own medical care and treatment in the two months between her diagnosis and death, undergoing radiation therapy and experiencing general weakness and other effects of cancer (see Balbuenas at 646 ["even absent incapacitation, a reasonable excuse may be established by an allegation that a petitioner was more concerned and preoccupied with his or her alleged injuries or those of a spouse or child than with retaining counsel to pursue a legal claim"].

Although the claimant's death did not trigger a toll of the 90-day period, it is also a factor in [*4]considering the reasonableness of Petitioner's excuse. In this case, Petitioner attests in his personal affidavit that he was dealing with the "shock," grief, and various responsibilities related to his mother's death in April 2025. He also had difficulty obtaining access to her medical records in the months following her death and sought authorization from Surrogate's Court to obtain them. For these reasons, the Court finds Petitioner has demonstrated a reasonable excuse for his delay filing a notice of claim upon the respondents.

Finally, Petitioner has established there is no substantial prejudice to NYCHHC resulting from the delay. The person seeking an extension need only show "some evidence or plausible argument that supports a finding of no substantial prejudice" (Newcomb v Middle County Cent. School Dist., 28 NY3d 455, 466 [2016]). Petitioner has met his prima facie burden on this issue, arguing that NYCHHC is in possession of any medical records and witnesses necessary to "adequately investigate and defend the claim on its merits." In opposition, NYCHHC has not made any "particularized evidentiary showing" of substantial prejudice (i.d. at 467). The Court therefore finds there is no evidence the delay of less than six months has substantially prejudiced the respondents.

Considering all the relevant facts and circumstances above, the part of Petitioner's motion seeking leave to file a late notice of claim is granted.

Regarding the discovery portion of the motion, NYCHHC argues in their opposition that all requested records have been provided between January and March 2026. However, at oral argument, the parties disputed whether complete radiological records have been provided. The part of the Petition seeking to compel NYCHHC to provide complete and unredacted copies of all medical records, including diagnostic studies on CD, is hereby granted, and such responses shall be provided within 45 days of this Order.

Accordingly, it is hereby:

ORDERED that part of the Petition (Seq. No. 1) seeking an Order, pursuant to Gen. Mun Law § 50-e (5), granting leave to file and serve a late notice of claim is granted; and it is further

ORDERED that Petitioner shall file and serve the notice of claim on NYCHHC within 30 days of entry of this Order on NYSCEF, and it shall be deemed timely nunc pro tunc; and it is further

ORDERED that the part of the Petition seeking to compel NYCHHC to provide the requested medical records is granted, and the respondents shall provide Petitioner with a complete and unredacted copy of all medical records, including hard copies of all diagnostic studies on CD, within 45 days of entry of this Order on NYSCEF.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.