Appellate Division Affirms Dismissal Based On Untimely Notice Of Claim

The Appellate Division, Second Department has affirmed the dismissal of a medical malpractice action, holding that the Supreme Court, Westchester County properly denied plaintiff’s motion for permission to serve a late notice of claim against a municipal hospital.  In Matter of Gentile v. Westchester Medical Center, 2011 NY Slip Op 06558 (2d Dep’t Sep. 20, 2011), sixty-three-year-old petitioner-appellant Robert Gentile, who suffered from congestive heart failure, diabetes, and amputations, was admitted to respondent Westchester Medical Center for emergency heart surgery.  His medical history included two heart attacks, non-insulin dependent diabetes mellitus, hypertension, hypercholesterolemia, and amputated toes.  He was admitted in grave condition to WMC for “acute coronary intervention.”  After emergency heart surgery, plaintiff was transferred to the Intensive Care Unit in “critical condition.”  During the next few weeks, Mr. Gentile was diagnosed with, and treated for, numerous life-threatening conditions stemming from his heart disease and over all poor health, including a tracheostomy to help with respiration.  A few weeks later, a CAT scan indicated Mr. Gentile had suffered a left middle cerebral artery stroke.  Over sixteen months after his discharge, appellant sought leave to file a late Notice of Claim against WMC and respondent Westchester County Health Care Corporation.  Plaintiff alleged that WMC’s failure to control his electrolytes and sodium levels during his nine-week admission caused him to suffer a stroke.

In affirming the denial of plaintiff’s motion for permission to file a late notice of claim, the Appellate Division held that plaintiff failed to show that WMC had actual knowledge of the facts constituting his claim within the requisite 90-day period or within a reasonable time thereafter.  It also held that there was no indication in WMC’s records to support the claims that WMC failed to properly manage, monitor, and control his electrolytes or that the stroke he suffered allegedly was caused by that failure or that WMC had knowledge of those claims.  Finally, the Appellate Division held that plaintiff did not demonstrate that the over one-year delay in seeking leave to serve a late notice of claim did not substantially prejudice WMC in maintaining a defense on the merits.
The proceedings in the lower court were handled by Robert B. Gibson.  Daryl Paxson represented WMC on appeal.