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Justice Alpert

IN A MEDICAL malpractice action petitioner alleged that her daughter, who is now 11-years-old, was seen at respondent hospital on multiple occasions between June 22, 2002 and Jan. 19, 2003. In February 2003 the child allegedly underwent emergency appendix surgery. Over respondent hospital’s opposition, the court granted petitioner’s motion for leave to file a late notice of claim. Referring to considerations set forth in General Municipal Law §50-e(5), the court found that petitioner failed to establish a nexus between her daughter’s infancy and her delay in filing a notice of claim, noting that the delay was largely associated with petitioner’s failure to appreciate a link between her child’s injuries and the alleged malpractice. However, finding that respondent’s records provided prior actual notice, the court ruled that respondent’s failure to indicate the level and nature of its investigation of petitioner’s application undermined its claim of prejudice.

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