Preview
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
STATE OF NEW YORK
SUPREME COURT :: COUNTY OF ERIE
ANN MARIE TURNER AFFIRMATION IN SUPPORT
Plaintiff, OF ORDER TO SHOW CAUSE
vs.
Index No. ___________
ROSWELL PARK CANCER
INSTITUTE CORPORATION
and
MOSHIM KUKAR, M.D.
Defendant.
_______________________________________
KEVIN T. STOCKER, ESQ., after being duly sworn and under the penalty of perjury, deposes and
says the following:
1. That I am an attorney at law duly licensed to practice before all the courts of New York State. I
represent the Plaintiff, ANN MARIE TURNER (hereinafter “Plaintiff”), and as such, I am fully familiar with
all the facts and circumstances herein.
2. Plaintiff is a resident of the County of Erie and State of New York, and resides at 27 Marilyn Court,
Tonawanda, New York 14150.
3. Defendant ROSWELL PARK CANCER INSTITUTE CORPORATION (hereinafter “Roswell”) is a
hospital duly organized under the laws of the State of New York, and a public benefit corporation based upon
1 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
information and belief, with a principal place of business located at Elm and Carlton Streets, Buffalo, New
York 12263.
4. Defendant MOSHIM KUKAR, M.D. (hereinafter “Kukar”) is a board-certified medical doctor whose
medical practice includes working at Roswell.
5. I submit this attorney affirmation in support of Plaintiff’s order to show cause seeking permission to
serve a late notice of claim on Roswell and Kukar (collectively herein “Defendants”).
STATEMENT OF FACTS
6. Plaintiff just filed her summons and verified complaint herein, which is included hereto and made a
part herewith (Exhibit “A”).
7. Plaintiff was diagnosed with stage 1, right-sided papillary thyroid cancer in January of 2020
(Exhibit “B” at ¶2). At such time, Plaintiff began seeking treatment for the cancer from Defendants
(Exhibit “B” at ¶3).
8. On February 26, 2020, pursuant to Defendant’s advice, Plaintiff underwent a thyroidectomy at
Defendant’s hospital, performed by Defendant Dr. Moshim Kukar (Exhibits “B” at ¶4 and “C”). Dr. Kukar
presented a sense of urgency for the surgery, calling for Plaintiff to make a rushed judgment on the
treatment of cancer, and resulting surgery, only a month after discovery (Exhibit “B” at ¶15).
9. During the procedure, Dr. Kukar noted that the thyroid was sitting against the recurrent laryngeal
nerve, and the tumor was in fact stuck to the nerve (Exhibits “B” at ¶¶5-6, and “C”).
2 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
10. Dr. Kukar still proceeded with the surgery by attempting to sharply dissect the thyroid off of the
nerve (Exhibits “B” at ¶6, and “C”). In the process, the recurrent laryngeal nerve was severed, requiring the
nerve to be sutured or stitched in an attempt to repair the damage caused (Exhibits “B” at ¶7, and “C”).
11. Plaintiff has been informed that the damage to the recurrent laryngeal nerve has caused a permanent
paralysis, resulting in Plaintiff being forced to take speech therapy, suffering shortness of breath which
prevents her from exercising and adversely affects her work, and triggering laryngospasms where she
cannot breathe (Exhibit “B” at ¶¶9-10).
12. Plaintiff was not informed of any potential dangers to her laryngeal recurrent nerve when she was
being advised about surgery (Exhibit “B” at ¶11). If Plaintiff knew that there was a danger to the nerve that
could adversely affect her ability to communicate as well as her about to exercised and perform her duties
as a teacher, then she would have had serious reservations about proceeding with the surgery in such a
rushed manner (Exhibit “B” at ¶12).
13. Moreover, Plaintiff was also not fully advised about the danger, or lack thereof, posed by the type
of cancer discovered (Exhibit “B” at ¶13). Plaintiff later learned, from other medical professionals, that
stage 1 papillary thyroid cancer is a very slow growing cancer that does not spread, and is very unlikely to
cause death (Exhibit “B” at ¶14).
14. Plaintiff was also not aware that Dr. Kukar specialized in performing surgery to the esophagus,
stomach, pancreas, liver, colon and rectum, but only “[m]anagement of endocrine cancers of the thyroid,
parathyroid and adrenal gland” (Exhibit “B” at ¶17).
3 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
15. After the surgery, Plaintiff was in disarray with how the surgery went, and kept attending medical
appointments for treatment from Defendant to address her recurrent laryngeal nerve (Exhibit “B” at ¶18).
The extent and permanency of her nerve injury was not fully known until one year after the surgery took
place (Exhibit “B” at ¶19). Therefore, Plaintiff has only recently become fully aware of the extent of her
damages (Exhibit “B” at ¶21).
16. Moreover, only recently was Plaintiff able to be seen by another thyroid specialist about her current
condition due to delays resulting from the pandemic (Exhibit “B” at ¶22). Said medical specialist informed
Plaintiff that medical malpractice likely occurred as the operative dissection of the thyroid that close and
entwined to a nerve should not be done, and instead conservative dissecting further away from the nerve
should have be performed along with the use of radioactive iodine to kill the remaining cancerous cells
(Exhibit “B” at ¶22).
17. Since Plaintiff was only recently informed by an unbiased, third-party specialist about the
malpractice, a delay caused by both the pandemic and her reliance upon Defendants’ advice that the extent
of her injuries would not be known for 12 months while Plaintiff kept treating, she is bringing the instant
petition and order to show cause seeking leave to serve a late notice of claim upon Defendants, if so
required (Exhibit “D” – Notice of Claim).
ARGUMENT
Point I: Court’s Standards for Granting Leave to Serve a Late Notice of Claim
18. Plaintiff brings the instant motion for leave to serve the late notice of claim attached heretin as
Exhibit “D” upon the Defendants as a public benefit corporation.
4 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
19. The ability for this Court to grant Plaintiff leave to serve a late notice of claim is found in General
Municipal Law Section 50-e (5), which states:
“In determining whether to permit service of a late notice of claim, the court must
consider all relevant facts and circumstances, including whether (1) the claimant is an
infant, (2) the movant has demonstrated a reasonable excuse for failing to serve a timely
notice of claim, (3) the public corporation acquired actual knowledge of the facts
constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4)
the delay would substantially prejudice the public corporation in defending on the merits”
(General Municipal Law § 50-e (5); see, Fuentes v County of Nassau, 15 AD3d 346, 346 (2d
Dept 2005); Matter of Brown v County of Westchester, 293 AD2d 748 (2002]; see also, Matter
of Fierro v City of New York, 271 AD2d 608, 609, [2000]; Matter of Gaffney v Town of
Hempstead, 226 AD2d 721, 722 [1996]; Matter of Matarrese v New York City Health & Hosps.
Corp., 215 AD2d 7, 9 [1995]).
20. This list of factors set forth by GML §50-e(5) is merely a “non-exhaustive list of factors that the
court should weigh”, but other factors can be considered as the statute allows for “all other relevant facts
and circumstances” (Williams v. Nassau County Med. Ctr., 6 NY3d 531, 539 (2006); Matter of Newcomb
v. Middle Country Cent. Sch. Dist., 28 NY3d 455 (2016)).
21. Indeed, GML § 50-e(5) was intended to be liberally construed, and was to provide more flexible
criteria for the termination of a motion for leave to file a late notice of claim (Robb v. New York City
Housing Authority, 71 AD2d 1000 (2d Dept., 1979)).
22. Based upon these premises, courts have held that the GML §50-e’s notice of claim requirements
should not “operate as a device to defeat the rights of persons with legitimate claims (Annis v. New York
City Transit Authority, 108 AD2d (1st Dept., 1985)).
23. Moreover, it has been held that a hospital acquires actual and contemporaneous knowledge of the
facts essential to the maintenance and investigation of a medical malpractice claim by virtue of its status as
5 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
a repository of its patients’ records (Lisandro v. New York City Health and Hospitals Corp., 50 AD3d 304
(1st Dept., 304); Bayo v. Burnside, 45 AD3d 495 (1st Dept., 2007); Caminero v. New York City Health
and Hospitals Corp., 21 AD3d 330 (1st Dept., 2005); Rosas v. 397 Broadway Corp., 309 AD2d 913 (2d
Dept., 2003); Robinson v. Westchester County Medical Center, 270 AD2d 275 (2d Dept., 2000)).
24. In this instant matter, it is a provident exercise of the Court’s discretion to grant Plaintiff leave to
serve a late notice of claim as Plaintiff’s situation satisfies each of the factors set forth in GML §50-e(5), in
addition to other “relevant facts and circumstances”, as discussed in detail below.
Point II: Defendants had Actual Knowledge of the Essential Facts of Plaintiff’s Claim
25. Plaintiff contends that Defendants had actual knowledge of the essential facts of this case based
upon the botched surgery, medical records, and continuing treatment.
26. Plaintiff’s medical records from her treatment evidence that Defendants were acutely aware that her
thyroidectomy was not completed successfully, that it resulted in a tear in her recurrent laryngeal nerve,
and that Plaintiff has made multiple complaints during the continued treatment by Defendants, which lasted
until very recently when it became clear that her nerve injury was permanent in nature.
27. For these reasons, it is abundantly clear that Defendants had actual knowledge of Plaintiff’s claim,
that they can easily investigate the claims as they have already investigated Plaintiff’s complaints.
28. This is precisely the interpretation case law requires, as the Court of Appeals has interpreted this
“actual knowledge” factor to mean that the Defendants had knowledge of the underlying facts as
6 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
distinguished from knowledge that a tort claim will be prosecuted (Beary v. City of Rye, 44 NY2d 398,
412-413 (1978)). As aforementioned, Defendants have more than actual notice herein.
29. Moreover, time is not an issue as Defendants had ample notice in a reasonable time based upon
Plaintiff’s medical records and her continuing appointments which Plaintiff maintained while ascertaining
the extent of her injuries, and the investigation of her complaints.
30. When a public corporation has actual knowledge of the claim itself within the ninety-day prior, it is
clear that a late filing will be permitted (King v. City of New York, 90 AD2d 637 (2d Dept., 1983); Gelles
v. New York City Hous. Auth., 87 AD2d 757 (1st Dept., 1982)).
31. Therefore, it should be undisputed that Defendants had actual notice of Plaintiff’s complaint here
based upon performing the procedure, documenting the problems resulting therefrom, receiving and
investigating Plaintiff’s complaint, and from continuing to treat Plaintiff to ascertain that her nerve injury is
permanent as its health has not improved over the last year.
32. Therefore, the actual notice factor of GML §50-e(5) for granting leave for a late notice of claim
weighs in Plaintiff’s favor.
Point III: Claimant has a Reasonable Excuse for the Delay
33. Plaintiff also has several reasonable excuses for her delay in serving a notice of claim upon
Defendants.
7 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
34. First, her surgery occurred on February 26, 2020, just before the current pandemic took hold of
society and shut down many of its functions. The pandemic has delayed and hindered Plaintiff’s ability to
be seen by other specialists, and forced her to take precautions to protect her health from further decline.
35. Second, Plaintiff was not fully aware of the permanency of her personal injury to the recurrent
laryngeal nerve until a year after the surgery. Once the permanency and severity of the personal injury was
known, Plaintiff promptly sought legal counsel for her rights.
36. Third, Plaintiff has continued to be treated by Defendants during this time as she sought the best
course of treatment to fix her injury and return her health to her previous condition. The most recent
appointment was on May 18, 2021, where she again voiced my complaints on her injuries, and was told
that there was nothing that could be done to reverse the nerve damage
37. Each of the foregoing reasons provides a reasonable basis for Plaintiff’s failure to serve a notice of
claim within 90 days of her injury.
38. Even should the Court determine that this excuse is not a reasonable excuse for her failure to serve
a timely notice of claim, the Fourth Department has held that "that failure is not fatal where . . . actual
notice was had and there is no compelling showing of prejudice to [respondent]" (Matter of Hess v W.
Seneca Cent. Sch. Dist., 71 A.D.3d 1568, 1568-1569 (4th Dep’t 2010); see Matter of Hall v Madison-
Oneida County Bd. of Coop. Educ. Servs., 66 A.D.3d 1434, 1435 (4th Dep’t 2009)).
39. As aforementioned in the previous section, there is ample evidence of Defendants having actual
notice herein of Plaintiff’s complaint to support granting her leave.
8 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
Point IV: Defendants had an opportunity to investigate the circumstances
40. Defendant also had the opportunity to investigate Plaintiff’s claims and her injuries.
41. Defendants’ records show that the doctor became fully aware of his error in severing the recurrent
laryngeal nerve during the surgery (Exhibit “C”). He immediately stopped performing the thyroidectomy
without completing removal of the full thyroid, thereby foregoing his ability to utilize radioactive iodine to
kill all remaining cancerous tissues (Exhibit “C”).
42. This error in the procedure was investigated by Defendants, and also complained about to them by
Plaintiff which also required Defendants to look into her allegations.
43. Moreover, Defendants can perform additional investigations as they so choose as they still have the
relevant witnesses including their own doctors, agents, and personnel, and all the pertinent medical records
at their disposal.
Point V: Defendants have not suffered Substantial Prejudice
44. Defendants also have not suffered any prejudice in the matter herein.
45. General Municipal Law Section 50-e explicitly states that courts deciding motions to permit late
service of a notice of claim should consider where the defendant would be substantially prejudiced in
maintaining a defense on the merits (GML §50-e(5)).
9 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
46. The existence or nonexistence of substantial prejudices has been termed one of the “two critical
factors” for courts to consider in deciding such motions (Lucas v. City of New York, 91 AD2d 637 (2d
Dept., 1982)(other factor is actual knowledge of essential facts)).
47. As previously detailed, Defendants have abundant “actual knowledge” of the essential facts, and
also cannot prove that they are prejudiced. They have already investigated Plaintiff’s complaints, and can
easily perform a more thorough investigation as the witnesses are Defendants’ doctors, agents, and/or
employees, and they already possess all Plaintiff’s relevant medical records.
48. Therefore, Defendants do not suffer any prejudice from the Court granting Plaintiff leave to serve a
late notice of claim.
49. In addition, the burden to show prejudice would thereby shift to Defendants in this instant matter.
The standard for the shifting burden of showing substantial prejudice in these instances was recently
established by the Court of Appeals in the seminal case of Newcomb v Middle Country Cent. Sch. Dist.,
28 NY3d 455 (2016).
50. In Newcomb, the Court of Appeals held that: "[w]e hold that the burden initially rests on the
petitioner to show that the late notice will not substantially prejudice the public corporation. Such a
showing need not be extensive, but the petitioner must present some evidence or plausible argument that
supports a finding of no substantial prejudice. ... 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."
10 of 11
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021
51. Thus, Plaintiff must present “some evidence or plausible argument” of a lack of substantial
prejudice. Herein, Plaintiff has established that Defendant has had prior knowledge of her claim, performed
an investigation, and has all the medical records documenting the injury. As such, Defendants can easily
investigate the claims, and are not hindered by any alleged delay in time.
52. Pursuant to Newcomb, the burden of proofing “substantial prejudice” should then shift to the
Defendants, who must somehow prove by “a particularized evidentiary” showing the inapposite.
53. Therefore, it is Defendants burden to produce a “particularized evidentiary showing” that they do
suffer from “substantial prejudice” on Plaintiff’s claim. Due to all the foregoing paragraphs detailing
Defendants’ actual knowledge and involvement with her complaints already, Plaintiff contends that
Defendants would not be able to produce same to prove “substantial prejudice”, thereby further illustrating
that Plaintiff should be granted leave to submit a late notice of claim.
WHEREFORE, it is respectfully requested that the Court grant Plaintiff leave to serve the late notice
of claim attached hereto as Exhibit “D”, and any other relief which the Court deems right and just.
Dated: May 18, 2021
Tonawanda, New York
___________________________
Kevin T. Stocker, Esq.
Attorney for Plaintiff
2645 Sheridan Drive
Tonawanda, New York 14150
Telephone: (716) 832-3006
11 of 11
Preview
FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 STATE OF NEW YORK SUPREME COURT :: COUNTY OF ERIE ANN MARIE TURNER AFFIRMATION IN SUPPORT Plaintiff, OF ORDER TO SHOW CAUSE vs. Index No. ___________ ROSWELL PARK CANCER INSTITUTE CORPORATION and MOSHIM KUKAR, M.D. Defendant. _______________________________________ KEVIN T. STOCKER, ESQ., after being duly sworn and under the penalty of perjury, deposes and says the following: 1. That I am an attorney at law duly licensed to practice before all the courts of New York State. I represent the Plaintiff, ANN MARIE TURNER (hereinafter “Plaintiff”), and as such, I am fully familiar with all the facts and circumstances herein. 2. Plaintiff is a resident of the County of Erie and State of New York, and resides at 27 Marilyn Court, Tonawanda, New York 14150. 3. Defendant ROSWELL PARK CANCER INSTITUTE CORPORATION (hereinafter “Roswell”) is a hospital duly organized under the laws of the State of New York, and a public benefit corporation based upon 1 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 information and belief, with a principal place of business located at Elm and Carlton Streets, Buffalo, New York 12263. 4. Defendant MOSHIM KUKAR, M.D. (hereinafter “Kukar”) is a board-certified medical doctor whose medical practice includes working at Roswell. 5. I submit this attorney affirmation in support of Plaintiff’s order to show cause seeking permission to serve a late notice of claim on Roswell and Kukar (collectively herein “Defendants”). STATEMENT OF FACTS 6. Plaintiff just filed her summons and verified complaint herein, which is included hereto and made a part herewith (Exhibit “A”). 7. Plaintiff was diagnosed with stage 1, right-sided papillary thyroid cancer in January of 2020 (Exhibit “B” at ¶2). At such time, Plaintiff began seeking treatment for the cancer from Defendants (Exhibit “B” at ¶3). 8. On February 26, 2020, pursuant to Defendant’s advice, Plaintiff underwent a thyroidectomy at Defendant’s hospital, performed by Defendant Dr. Moshim Kukar (Exhibits “B” at ¶4 and “C”). Dr. Kukar presented a sense of urgency for the surgery, calling for Plaintiff to make a rushed judgment on the treatment of cancer, and resulting surgery, only a month after discovery (Exhibit “B” at ¶15). 9. During the procedure, Dr. Kukar noted that the thyroid was sitting against the recurrent laryngeal nerve, and the tumor was in fact stuck to the nerve (Exhibits “B” at ¶¶5-6, and “C”). 2 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 10. Dr. Kukar still proceeded with the surgery by attempting to sharply dissect the thyroid off of the nerve (Exhibits “B” at ¶6, and “C”). In the process, the recurrent laryngeal nerve was severed, requiring the nerve to be sutured or stitched in an attempt to repair the damage caused (Exhibits “B” at ¶7, and “C”). 11. Plaintiff has been informed that the damage to the recurrent laryngeal nerve has caused a permanent paralysis, resulting in Plaintiff being forced to take speech therapy, suffering shortness of breath which prevents her from exercising and adversely affects her work, and triggering laryngospasms where she cannot breathe (Exhibit “B” at ¶¶9-10). 12. Plaintiff was not informed of any potential dangers to her laryngeal recurrent nerve when she was being advised about surgery (Exhibit “B” at ¶11). If Plaintiff knew that there was a danger to the nerve that could adversely affect her ability to communicate as well as her about to exercised and perform her duties as a teacher, then she would have had serious reservations about proceeding with the surgery in such a rushed manner (Exhibit “B” at ¶12). 13. Moreover, Plaintiff was also not fully advised about the danger, or lack thereof, posed by the type of cancer discovered (Exhibit “B” at ¶13). Plaintiff later learned, from other medical professionals, that stage 1 papillary thyroid cancer is a very slow growing cancer that does not spread, and is very unlikely to cause death (Exhibit “B” at ¶14). 14. Plaintiff was also not aware that Dr. Kukar specialized in performing surgery to the esophagus, stomach, pancreas, liver, colon and rectum, but only “[m]anagement of endocrine cancers of the thyroid, parathyroid and adrenal gland” (Exhibit “B” at ¶17). 3 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 15. After the surgery, Plaintiff was in disarray with how the surgery went, and kept attending medical appointments for treatment from Defendant to address her recurrent laryngeal nerve (Exhibit “B” at ¶18). The extent and permanency of her nerve injury was not fully known until one year after the surgery took place (Exhibit “B” at ¶19). Therefore, Plaintiff has only recently become fully aware of the extent of her damages (Exhibit “B” at ¶21). 16. Moreover, only recently was Plaintiff able to be seen by another thyroid specialist about her current condition due to delays resulting from the pandemic (Exhibit “B” at ¶22). Said medical specialist informed Plaintiff that medical malpractice likely occurred as the operative dissection of the thyroid that close and entwined to a nerve should not be done, and instead conservative dissecting further away from the nerve should have be performed along with the use of radioactive iodine to kill the remaining cancerous cells (Exhibit “B” at ¶22). 17. Since Plaintiff was only recently informed by an unbiased, third-party specialist about the malpractice, a delay caused by both the pandemic and her reliance upon Defendants’ advice that the extent of her injuries would not be known for 12 months while Plaintiff kept treating, she is bringing the instant petition and order to show cause seeking leave to serve a late notice of claim upon Defendants, if so required (Exhibit “D” – Notice of Claim). ARGUMENT Point I: Court’s Standards for Granting Leave to Serve a Late Notice of Claim 18. Plaintiff brings the instant motion for leave to serve the late notice of claim attached heretin as Exhibit “D” upon the Defendants as a public benefit corporation. 4 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 19. The ability for this Court to grant Plaintiff leave to serve a late notice of claim is found in General Municipal Law Section 50-e (5), which states: “In determining whether to permit service of a late notice of claim, the court must consider all relevant facts and circumstances, including whether (1) the claimant is an infant, (2) the movant has demonstrated a reasonable excuse for failing to serve a timely notice of claim, (3) the public corporation acquired actual knowledge of the facts constituting the claim within 90 days of its accrual or a reasonable time thereafter, and (4) the delay would substantially prejudice the public corporation in defending on the merits” (General Municipal Law § 50-e (5); see, Fuentes v County of Nassau, 15 AD3d 346, 346 (2d Dept 2005); Matter of Brown v County of Westchester, 293 AD2d 748 (2002]; see also, Matter of Fierro v City of New York, 271 AD2d 608, 609, [2000]; Matter of Gaffney v Town of Hempstead, 226 AD2d 721, 722 [1996]; Matter of Matarrese v New York City Health & Hosps. Corp., 215 AD2d 7, 9 [1995]). 20. This list of factors set forth by GML §50-e(5) is merely a “non-exhaustive list of factors that the court should weigh”, but other factors can be considered as the statute allows for “all other relevant facts and circumstances” (Williams v. Nassau County Med. Ctr., 6 NY3d 531, 539 (2006); Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 NY3d 455 (2016)). 21. Indeed, GML § 50-e(5) was intended to be liberally construed, and was to provide more flexible criteria for the termination of a motion for leave to file a late notice of claim (Robb v. New York City Housing Authority, 71 AD2d 1000 (2d Dept., 1979)). 22. Based upon these premises, courts have held that the GML §50-e’s notice of claim requirements should not “operate as a device to defeat the rights of persons with legitimate claims (Annis v. New York City Transit Authority, 108 AD2d (1st Dept., 1985)). 23. Moreover, it has been held that a hospital acquires actual and contemporaneous knowledge of the facts essential to the maintenance and investigation of a medical malpractice claim by virtue of its status as 5 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 a repository of its patients’ records (Lisandro v. New York City Health and Hospitals Corp., 50 AD3d 304 (1st Dept., 304); Bayo v. Burnside, 45 AD3d 495 (1st Dept., 2007); Caminero v. New York City Health and Hospitals Corp., 21 AD3d 330 (1st Dept., 2005); Rosas v. 397 Broadway Corp., 309 AD2d 913 (2d Dept., 2003); Robinson v. Westchester County Medical Center, 270 AD2d 275 (2d Dept., 2000)). 24. In this instant matter, it is a provident exercise of the Court’s discretion to grant Plaintiff leave to serve a late notice of claim as Plaintiff’s situation satisfies each of the factors set forth in GML §50-e(5), in addition to other “relevant facts and circumstances”, as discussed in detail below. Point II: Defendants had Actual Knowledge of the Essential Facts of Plaintiff’s Claim 25. Plaintiff contends that Defendants had actual knowledge of the essential facts of this case based upon the botched surgery, medical records, and continuing treatment. 26. Plaintiff’s medical records from her treatment evidence that Defendants were acutely aware that her thyroidectomy was not completed successfully, that it resulted in a tear in her recurrent laryngeal nerve, and that Plaintiff has made multiple complaints during the continued treatment by Defendants, which lasted until very recently when it became clear that her nerve injury was permanent in nature. 27. For these reasons, it is abundantly clear that Defendants had actual knowledge of Plaintiff’s claim, that they can easily investigate the claims as they have already investigated Plaintiff’s complaints. 28. This is precisely the interpretation case law requires, as the Court of Appeals has interpreted this “actual knowledge” factor to mean that the Defendants had knowledge of the underlying facts as 6 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 distinguished from knowledge that a tort claim will be prosecuted (Beary v. City of Rye, 44 NY2d 398, 412-413 (1978)). As aforementioned, Defendants have more than actual notice herein. 29. Moreover, time is not an issue as Defendants had ample notice in a reasonable time based upon Plaintiff’s medical records and her continuing appointments which Plaintiff maintained while ascertaining the extent of her injuries, and the investigation of her complaints. 30. When a public corporation has actual knowledge of the claim itself within the ninety-day prior, it is clear that a late filing will be permitted (King v. City of New York, 90 AD2d 637 (2d Dept., 1983); Gelles v. New York City Hous. Auth., 87 AD2d 757 (1st Dept., 1982)). 31. Therefore, it should be undisputed that Defendants had actual notice of Plaintiff’s complaint here based upon performing the procedure, documenting the problems resulting therefrom, receiving and investigating Plaintiff’s complaint, and from continuing to treat Plaintiff to ascertain that her nerve injury is permanent as its health has not improved over the last year. 32. Therefore, the actual notice factor of GML §50-e(5) for granting leave for a late notice of claim weighs in Plaintiff’s favor. Point III: Claimant has a Reasonable Excuse for the Delay 33. Plaintiff also has several reasonable excuses for her delay in serving a notice of claim upon Defendants. 7 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 34. First, her surgery occurred on February 26, 2020, just before the current pandemic took hold of society and shut down many of its functions. The pandemic has delayed and hindered Plaintiff’s ability to be seen by other specialists, and forced her to take precautions to protect her health from further decline. 35. Second, Plaintiff was not fully aware of the permanency of her personal injury to the recurrent laryngeal nerve until a year after the surgery. Once the permanency and severity of the personal injury was known, Plaintiff promptly sought legal counsel for her rights. 36. Third, Plaintiff has continued to be treated by Defendants during this time as she sought the best course of treatment to fix her injury and return her health to her previous condition. The most recent appointment was on May 18, 2021, where she again voiced my complaints on her injuries, and was told that there was nothing that could be done to reverse the nerve damage 37. Each of the foregoing reasons provides a reasonable basis for Plaintiff’s failure to serve a notice of claim within 90 days of her injury. 38. Even should the Court determine that this excuse is not a reasonable excuse for her failure to serve a timely notice of claim, the Fourth Department has held that "that failure is not fatal where . . . actual notice was had and there is no compelling showing of prejudice to [respondent]" (Matter of Hess v W. Seneca Cent. Sch. Dist., 71 A.D.3d 1568, 1568-1569 (4th Dep’t 2010); see Matter of Hall v Madison- Oneida County Bd. of Coop. Educ. Servs., 66 A.D.3d 1434, 1435 (4th Dep’t 2009)). 39. As aforementioned in the previous section, there is ample evidence of Defendants having actual notice herein of Plaintiff’s complaint to support granting her leave. 8 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 Point IV: Defendants had an opportunity to investigate the circumstances 40. Defendant also had the opportunity to investigate Plaintiff’s claims and her injuries. 41. Defendants’ records show that the doctor became fully aware of his error in severing the recurrent laryngeal nerve during the surgery (Exhibit “C”). He immediately stopped performing the thyroidectomy without completing removal of the full thyroid, thereby foregoing his ability to utilize radioactive iodine to kill all remaining cancerous tissues (Exhibit “C”). 42. This error in the procedure was investigated by Defendants, and also complained about to them by Plaintiff which also required Defendants to look into her allegations. 43. Moreover, Defendants can perform additional investigations as they so choose as they still have the relevant witnesses including their own doctors, agents, and personnel, and all the pertinent medical records at their disposal. Point V: Defendants have not suffered Substantial Prejudice 44. Defendants also have not suffered any prejudice in the matter herein. 45. General Municipal Law Section 50-e explicitly states that courts deciding motions to permit late service of a notice of claim should consider where the defendant would be substantially prejudiced in maintaining a defense on the merits (GML §50-e(5)). 9 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 46. The existence or nonexistence of substantial prejudices has been termed one of the “two critical factors” for courts to consider in deciding such motions (Lucas v. City of New York, 91 AD2d 637 (2d Dept., 1982)(other factor is actual knowledge of essential facts)). 47. As previously detailed, Defendants have abundant “actual knowledge” of the essential facts, and also cannot prove that they are prejudiced. They have already investigated Plaintiff’s complaints, and can easily perform a more thorough investigation as the witnesses are Defendants’ doctors, agents, and/or employees, and they already possess all Plaintiff’s relevant medical records. 48. Therefore, Defendants do not suffer any prejudice from the Court granting Plaintiff leave to serve a late notice of claim. 49. In addition, the burden to show prejudice would thereby shift to Defendants in this instant matter. The standard for the shifting burden of showing substantial prejudice in these instances was recently established by the Court of Appeals in the seminal case of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455 (2016). 50. In Newcomb, the Court of Appeals held that: "[w]e hold that the burden initially rests on the petitioner to show that the late notice will not substantially prejudice the public corporation. Such a showing need not be extensive, but the petitioner must present some evidence or plausible argument that supports a finding of no substantial prejudice. ... 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." 10 of 11 FILED: ERIE COUNTY CLERK 05/25/2021 11:49 PM INDEX NO. 806930/2021 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 05/25/2021 51. Thus, Plaintiff must present “some evidence or plausible argument” of a lack of substantial prejudice. Herein, Plaintiff has established that Defendant has had prior knowledge of her claim, performed an investigation, and has all the medical records documenting the injury. As such, Defendants can easily investigate the claims, and are not hindered by any alleged delay in time. 52. Pursuant to Newcomb, the burden of proofing “substantial prejudice” should then shift to the Defendants, who must somehow prove by “a particularized evidentiary” showing the inapposite. 53. Therefore, it is Defendants burden to produce a “particularized evidentiary showing” that they do suffer from “substantial prejudice” on Plaintiff’s claim. Due to all the foregoing paragraphs detailing Defendants’ actual knowledge and involvement with her complaints already, Plaintiff contends that Defendants would not be able to produce same to prove “substantial prejudice”, thereby further illustrating that Plaintiff should be granted leave to submit a late notice of claim. WHEREFORE, it is respectfully requested that the Court grant Plaintiff leave to serve the late notice of claim attached hereto as Exhibit “D”, and any other relief which the Court deems right and just. Dated: May 18, 2021 Tonawanda, New York ___________________________ Kevin T. Stocker, Esq. Attorney for Plaintiff 2645 Sheridan Drive Tonawanda, New York 14150 Telephone: (716) 832-3006 11 of 11