# D'Anjou v. New York City Health & Hospitals Corp.

> Appellate Division of the Supreme Court of the State of New York · September 13, 1993 · 196 A.D.2d 818

URL: https://www.frixlaw.com/law-library/cases/5965284

## Case

- **Full name:** In the Matter of Tremayne D'Anjou, an Infant, by His Mother and Natural Guardian, Irma D'Anjou v. New York City Health and Hospitals Corporation
- **Court:** Appellate Division of the Supreme Court of the State of New York
- **Decided:** September 13, 1993
- **Citations:** 196 A.D.2d 818; 601 N.Y.S.2d 944
- **Precedential status:** Published
- **Opinion:** Dissent by Santucci
- **Judges:** Santucci
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/5965284

## Opinion text

Santucci, J.,
dissents and votes to affirm the order dated February 1, 1991, insofar as appealed from, and to affirm the order dated October 28, 1991, with the following memorandum: I dissent. As the majority points out, "the service of a late notice of claim is often permissible in a medical malpractice action relating to the care and treatment of a patient because the hospital possesses the patient’s medical records and thus has actual notice of the claim and underlying facts” (see, e.g., Matter of Kurz v New York City Health & Hosps. Corp., 174 AD2d 671 ; Matter of Quiroz v City of New York, 154 AD2d 315 ). However, I disagree with the majority’s conclusion that the late notice should not be permitted in the case at bar because it does not adequately set forth the nature of the claim and the time and manner in which it arose (see, General Municipal Law § 50-e [2]).
The only essential facts known to the petitioner at this point in time, and indeed the only facts which can set forth the nature of the claim, are that the infant suffered a fractured femur while in the appellant’s care, and that he was thereafter treated for the injury by the appellant. It is unclear at this stage of the proceedings whether the injury was the result of trauma occasioned by the negligence of the appellant or someone else, malpractice during the delivery, or even malpractice in the subsequent treatment of the injury. However, it is axiomatic that a one-month-old infant could not *822 incur such a grievous injury in the absence of either malpractice or negligence. Moreover, since the hospital’s records do not indicate how the injury occurred, there is no reason to assume that the fracture was the result of negligence by someone other than an employee of the appellant. Concomitantly, it cannot be assumed that the appellant is liable for the injury at this point in time. Under these circumstances, the petitioner’s notice of claim is sufficient to apprise the public corporation of the essential nature of the claim, regardless of whether her action is predicated upon malpractice or simple negligence or both (General Municipal Law § 50-e [2]). At the very least, the notice of claim is sufficient to permit the late filing so that a more exact picture of the manner in which the claim arose may emerge upon future discovery.
Moreover, we have previously held that "neither General Municipal Law § 50-e (5) nor case law requires a claimant to establish the merits of his cause of action at so preliminary a stage as upon service of a notice of claim” (Matter of Charles v New York City Health & Hosps. Corp., 166 AD2d 526, 528 ). Nor is the petitioner required to present a prima facie case upon her application for a late notice of claim (see, Jenkins v County of Westchester, 133 AD2d 808, 809 ).
I also disagree that the appellant would be manifestly prejudiced by the delay because the hospital records do not reflect how the infant’s leg was fractured nor who is responsible. The inadequacy of the hospital’s records can only be attributed to the appellant itself, and one can only speculate why these records do not reflect anything regarding the cause of the injury. Indeed, given that the hospital was directly responsible for the infant’s care and treatment, the failure to document or even suggest the cause of the fracture is inherently suspicious, especially since such an injury to a one-month-old infant is particularly unusual. As a result, the appellant should not be heard to complain that it is prejudiced by its own failure to maintain more complete records in this situation. The majority would in fact encourage the keeping of inadequate records so that such records could not form the basis of actual notice to a public corporation hospital in the event of a future application to serve a late notice of claim.
Finally, although the petitioner’s mother has offered what may be characterized as a weak excuse for her earlier failure to file a late notice of claim, in the exercise of discretion, and in view of the totality of circumstances herein, I do not believe that the mother’s limited education and ignorance of the law should operate to bar the infant’s claim (see, Fleming v Man *823 hattan & Bronx Surface Tr. Operating Auth., 86 AD2d 509 ). It must also be borne in mind that the permanency which resulted from the injury, to wit, a shortened left leg, is a condition which did not manifest itself until the infant began to grow, years after the fracture occurred. Thus, I would conclude that the application for leave to serve the late notice of claim should have been permitted despite the substantial delay in seeking such relief (see, Matter of Kurz v New York City Health & Hosps. Corp., 174 AD2d 670 , supra).
Accordingly, for the above-stated reasons, I would vote to affirm the order which granted the petitioner’s application for leave to serve a late notice of claim insofar as appealed from, and to affirm the order denying the appellant renewal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/5965284. Public record. Not legal advice.