Assault Claim Against Municipal Hospital Dismissed
Robert B. Gibson and Brendan J. Alt successfully opposed plaintiffs’ application for leave of court to file a late Notice of Claim, resulting in dismissal of all claims against a municipal hospital located in Westchester County. The case involved an alleged assault and battery of an autistic minor by a hospital nurse after she was bitten by the minor while he was recovering from a dental procedure. The autistic minor’s mother also made a claim for intentional infliction of emotional distress.
Plaintiffs’ application to file a late Notice of Claim was opposed on several grounds, including that: (1) plaintiffs did not offer a reasonable excuse for failing to file a timely Notice of Claim; (2) the hospital could not be imputed with actual knowledge of a claim by mere possession of the infant-plaintiff’s medical records; and (3) the delay in filing a timely Notice of Claim substantially prejudiced the municipal hospital.
The court found that plaintiffs’ counsel did not offer a reasonable excuse for the delay and that the hospital did not have actual knowledge of the facts underlying plaintiff’s claim. The court noted that the hospital’s medical records were devoid of any reference to an injury to the infant-plaintiff, any subsequent medical treatment rendered to the infant-plaintiff, or any wrongdoing by the municipal hospital and its staff. As such, the hospital’s records did not create any causal connection between the events and any negligence by the hospital. Accordingly, the court dismissed plaintiffs’ complaint in its entirety due to plaintiff’s failure to timely file a Notice of Claim.