The opinion
McLean v New York City Health & Hosps. Corp.
2025 NY Slip Op 32170(U)
June 18, 2025
Supreme Court, New York County
Docket Number: Index No. 160546/2024
Judge: Carol Sharpe
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 06/18/2025 12:55 PM INDEX NO. 160546/2024
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/18/2025
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. CAROL SHARPE PART 52M
Justice
------------------------X INDEX NO. 160546/2024
CAROL MCLEAN,
MOTION DATE 11/11/2024
Plaintiff,
MOTION SEQ. NO. 001
- V -
NEW YORK CITY HEALTH AND HOSPITALS
DECISION + ORDER ON
CORPORATION,
MOTION
Defendant.
------------------------------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 8, 11, 12, 14
were read on this motion to/for LEAVE TO FILE
Upon the foregoing documents, the motion is granted.
Plaintiff, as proposed guardian ad litem to her mother, Valerie Lawrence, an alleged
incapacitated person, moved by Order to Show Cause ("OSC") seeking an Order pursuant to GML
§ 50-e(S) granting leave to serve a late notice of claim on behalf of her mother. Written opposition
was filed.
In support of the OSC, plaintiff submitted her own affirmation, the proposed notice of
claim, a picture of the pressure sore, and certain medical records. Plaintiff alleges in her affirmation
dated November 11, 2024, that her mother was admitted to Bellevue Hospital ("Bellevue") in
January of 2024, and fell into a coma on February 1st or 2nd 2024. She was transferred to Henry J.
Carter Long Term Acute Care Hospital ("Henry J. Carter LTACH") on or about April 12, 2024,
and was thereafter transferred to The Silvercrest Center for Nursing and Rehabilitation in June of
2024, where she still resides. Plaintiff stated that her mother has come out of the coma but is on a
ventilator and unresponsive to commands. Plaintiff seeks to recover for her mother's pain and
suffering caused by pressure sores for which she was treated both at Bellevue and Henry J. Carter
160546/2024 MCLEAN, CAROL vs. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION Page 1 of5
Motion No. 001
[* 1] 1 of 5
FILED: NEW YORK COUNTY CLERK 06/18/2025 12:55 PM INDEX NO. 160546/2024
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/18/2025
LTACH. The reason for the late notice of claim, as stated by plaintiff in her affirmation, was that
she was unable to retain an attorney within 90 days because her mother is incapacitated and, as her
caregiver, she visits every day to attend to her mother's health.
New York City Health and Hospital Corporation ("HHC") opposed the OSC in writing on
the grounds that having medical records does not provide notice in all cases.
On December 3, 2024, Martin, Clearwater & Bell LLP filed a Notice of Designation
(NYSCEF Doc. #13) as counsel for defendant New York City Health and Hospitals Corporation.
GML § 50-e (1 )(a) provides in pertinent parts that a notice of claim shall be served "within
ninety days after the claim arises." GML § 50-e (51) provides that ''the court, in its discretion, may
extend the time to serve a notice of claim specified in paragraph (a) of subdivision one of this
section... " Among the factors for the court to consider are whether The City "acquired actual
knowledge of the essential facts constituting the claim;" infancy or disability causing the delay of
service; a reasonable excuse for the delay; "and whether the delay in serving the notice of claim
substantially prejudiced the public corporation in maintaining its defense on the merits." GML §
50-e (5); see also, Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 45
N.Y.S.3d 895, 68 N.E.3d 714 (2016).
While the decision to grant or deny a motion to serve a late notice of claim is discretionary,
the decision must be supported by the evidence. Id, at 465. The question of "acquired actual
knowledge of the essential facts constituting the claim;" is to be considered "in particular" by the
court as great weight is placed on those facts. Matter ofJaime v. City ofNew York, 41 N. Y.3d 531,
540,237 N.E.3d 796, 213 N.Y.S.3d 730 (2024). In addition to actual knowledge, the courts must
consider "all other relevant facts and circumstances" (General Municipal Law§ 50-e [5]), and "the
160546/2024 MCLEAN, CAROL vs. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION Page 2of5
Motion No. 001
[* 2] 2 of 5
FILED: NEW YORK COUNTY CLERK 06/18/2025 12:55 PM INDEX NO. 160546/2024
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/18/2025
presence or absence of any one factor is not determinative" (Matter ofMorris v County ofSuffolk,
88 AD2d 956,957,451 N.Y.S.2d 448 [2d Dept 1982], affd 58 NY2d 767 [1982])." Id, at 541.
The fact that plaintiff was treated at a city hospital, without more, is insufficient to prove
actual knowledge of the facts constituting the claim. Williams v. Nassau Cnty. Med. Ctr., 6 N.Y.3d
531, 814 N.Y.S.2d 580, 847 N.E.2d 1154 (2006). "A medical provider's mere possession or
creation of medical records does not ipso facto establish that it had "actual knowledge of a potential
injury where the records do not evince that the medical staff, by its acts or omissions, inflicted any
injury on plaintiff during the birth process. [internal citation omitted]." Wally G. v. N Y.C. Health
& Hosps. Corp. (Metro. Hosp.), 27 N.Y.3d 672, 677, 37 N.Y.S.3d 30, 57 N.E.3d 1067 (2016).
"For purposes of determining whether leave to serve a late notice of claim should be granted,
determinations concerning a medical provider's "actual knowledge" and whether the medical
records "evince" that the medical provider inflicted injury on the plaintiff rest in the sound
discretion of the court." Id. Here, Ms. Lawrence's medical record, which was annexed as an exhibit
to the OSC, indicating that she had a pressure sore upon admission to Henry J. Carter LTACH,
which was after her discharge from Bellevue, is sufficient to constitute actual knowledge of the
essential facts under the legal theory that the injury sustained was a result of the defendant's acts
or omissions. See generally, Matter of Gray v. City of NY., 211 A.D.3d 577, 178 N.Y.S.3d 449
(Pt Dept. 2022); Umeh v. NY. C. Health & Hosps. Corp., 205 A.D.3d 599, 169 N.Y.S.3d 579 (I51
Dept. 2022). Additionally, Ms. Lawrence was admitted to Henry J. Carter LTACH because she
was in a coma, thus she was unable to retain an attorney herself.
The question of substantial prejudice, or the lack thereof, is decided under the burden-
shifting framework. Matter ofJaime v. City of NY., 41 N.Y.3d 531,541,213 N.Y.S.3d 730,237
N.E.3d 796 (2024). "[T]he burden initially rests on the plaintiff to show that the late notice will
160546/2024 MCLEAN, CAROL vs. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION Page 3 ofS
Motion No. 001
3 of 5
[* 3]
FILED: NEW YORK COUNTY CLERK 06/18/2025 12:55 PM INDEX NO. 160546/2024
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/18/2025
not substantially prejudice the public corporation. Such a showing need not be extensive, but the
plaintiff must present some evidence or plausible argument that supports a finding of no substantial
prejudice." Matter of Newcomb, 28 N.Y.3d at 466. "Once this initial showing has been made, the
public corporation must respond with a particularized evidentiary showing that the corporation
will be substantially prejudiced if the late notice is allowed ... [t]he public corporation, however, is
in the best position to know and demonstrate whether it has been substantially prejudiced by the
late notice." Id, at 467. "Providing proof of substantial prejudice on the record is qualitatively and
quantitatively different from a mere inference of prejudice. Generic arguments and inferences will
not establish 'substantial prejudice' in the absence of facts in the record to support such a finding."
Id, at 466; Matter of Benavides v. NYC Health & Hosps. Corp., 220 A.D.3d 458, 459, 197
N.Y.S.3d 493 (1 st Dept. 2023)("In addition, respondent New York City Health and Hospitals
Corporation (HHC) failed to make an adequate showing that it would be substantially prejudiced
if plaintiff is granted leave to file his claim."). "While this Court has previously instructed that lack
of actual knowledge and lengthy delays are "important factor[ s] in determining whether the
defendant is substantially prejudiced" (Williams, 6 NY3d at 539), mere inferences cannot support
a finding of substantial prejudice where, as here, there is no record evidence to support them."
Matter of Newcomb, 28 N.Y.3d at 466. Here, plaintiff has satisfied the "plausible argument" that
no substantial prejudice has occurred as the delay in filing the OSC was not extensive - Ms.
Lawrence was admitted to Bellevue in January of 2024, and the OSC was brought in November
of 2024. Furthermore, HHC has not claimed that it would be substantially prejudiced. Accordingly,
it is hereby
ORDERED, that plaintiffs motion is granted; it is further
160546/2024 MCLEAN, CAROL vs. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION Page4of5
Motion No. 001
[* 4] 4 of 5
FILED: NEW YORK COUNTY CLERK 06/18/2025 12:55 PM INDEX NO. 160546/2024
NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 06/18/2025
ORDERED, that plaintiff shall serve the notice of claim upon New York City Health and
Hospital Corporation in accordance with GML § 50-e; it is further
ORDERED, that in the event a lawsuit arising from this notice of claim is filed, plaintiff
shall purchase a new index number.
This constitutes the Decision and Order of the Court.
ENTER:
June 18, 2025
DATE HON. CAROL SHARPE, .
HON. CAROLS .
CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION
X GRANTED □ DENIED GRANTED IN PART □ OTHER
APPLICATION: SETTLE ORDER SUBMIT ORDER
CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE
160546/2024 MCLEAN, CAROL vs. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION Page Sof 5
Motion No. 001
[* 5] 5 of 5