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OSCAR TORRES, ETC., plfap, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (LINCOLN HOSPITAL), def-res

8766. OSCAR TORRES, ETC., plfap, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (LINCOLN HOSPITAL), def-res — Fitzgerald & Fitzgerald, P.C., Yonkers (John E. Fitzgerald of counsel), for ap — Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for res — Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 5, 2010, which denied plaintiff's motion to deem his previously served notice of claim timely, nunc pro tunc, and granted defendant's cross motion for dismissal of the complaint, unanimously affirmed, without costs.

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8766. OSCAR TORRES, ETC., plfap, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (LINCOLN HOSPITAL), def-res — Fitzgerald & Fitzgerald, P.C., Yonkers (John E. Fitzgerald of counsel), for ap — Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon of counsel), for res — Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered January 5, 2010, which denied plaintiff’s motion to deem his previously served notice of claim timely, nunc pro tunc, and granted defendant’s cross motion for dismissal of the complaint, unanimously affirmed, without costs.

In this action for medical malpractice, the infant plaintiff seeks to recover for injuries he suffered after being born extremely premature, at 25-weeks gestation, weighing only one pound and nine ounces. The motion court properly exercised its discretion in denying plaintiff’s motion upon consideration of the pertinent statutory factors (General Municipal Law §50-e[5]). The infant plaintiff’s mother’s excuse that she was unaware that she had a malpractice claim until more than six years after plaintiff’s birth is unreasonable (see Plaza v. New York Health & Hosps. Corp. [Jacobi Med. Ctr.], 97 AD3d 466, 467-468 [1st Dept 2012]). Additionally, there was no excuse proffered for the additional delay of more than three years (almost 10 years after the birth), between the filing of the notice of claim and the time the instant motion was made.

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