Preview
FILED: NEW YORK COUNTY CLERK 05/06/2021 10:19 AM INDEX NO. 805010/2021
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2021
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON.LYNN R. KOTLER, J.S.C. PART 8
ANA RAMOS INDEX NO. 805010/2021
MOT. DATE
-v-
MOT. SEQ. NO. 001
NEW YORK CITY HEALTH AND HOSPITALS CORP.
The following papers were read on this motion to/for
Notice of Motion/Petition/O.S.C. — Affidavits — Exhibits ECFS DOC No(s).
Notice of Cross-Motion/Answering Affidavits — Exhibits ECFS DOC No(s).
Replying Affidavits ECFS DOC No(s).
Petitioner/Claimant seeks to assert a claim against respondent arising from alleged medical mal-
practice in connection with the care petitioner received at Bellevue Hospital Center (“Bellevue”) and
specifically arising from Bellevue’s failure to diagnose petitioner with syphilis. By way of this proceed-
ing, petitioner now seeks for an order deeming her February 10, 2020 Notice of Claim timely served
nunc pro tunc and finding that the Statue of Limitations is stayed pending the resolution of this Petition.
Respondent New York City Health and Hospitals Corporation opposes the petition in an affirmation in
opposition rather than an answer.
According to her notice of claim dated February 10, 2020, petitioner alleges in pertinent part as fol-
lows:
… Throughout the course of her treatment the Claimant made multiple com-
plaints that showed symptomology of syphilis and Bellevue Hospital Center and
their associated medical professionals failed to diagnose that infection.
Following an incident on October 1, 2019, the claimant reported to Belleuve Hos-
pital Center complaining of acute headache and memory loss. In that incident
she reported memory loss for 5 hours, and unable to recognize children or home.
After being discharged, she followed up with Bellevue Hospital Center again on
October 16, 2019. Again she recited the history that she complained of memory
loss for 5 hours: unable to recognize children or home; numbness and tingling in
left hand and left leg which lasted 5 days. She further reported memory problems
had been going on for a few months prior to episode, and additionally claimant's
daughter stated that claimant had issues with memory issues for an extended pe-
riod of time.
Dated: 5/5/21 _____________________________
HON. LYNN R. KOTLER, J.S.C.
1. Check one: □X CASE DISPOSED □ NON-FINAL DISPOSITION
2. Check as appropriate: Motion is □X GRANTED □ DENIED □ GRANTED IN PART □ OTHER
3. Check if appropriate: □SETTLE ORDER □ SUBMIT ORDER □ DO NOT POST
□FIDUCIARY APPOINTMENT □ REFERENCE
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NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2021
Prior to this incident, the claimant expressed symptomology of syphilis. Of note,
on January 4, 2017 the claimant complained of extreme forgetfulness. On Janu-
ary 11, 2019 the claimant complained of pain her bones. On July 23, 2018,
claimant complained of her loss. On August 10, 2016 claimant complained of fa-
tigue and hair loss. On August 4, 2015 claimant complained of hand numbness
and blurry vision. On April 21, 2014 claimant report feeling dizzy. Note that the
Claimant reserves the right to supplement the additional dates as more infor-
mation becomes available.
Following the October 16, 2019, the Claimant reported to Physician Ana Romero.
On January 9, 2020 the lab testing ordered by Dr. Romero revealed that Ms.
Ramos tested positive for T. Pallidium ab. which is the marker for syphilis. Dr.
Romero opined based on the testing levels that the claimant had syphilis for an
extended period. The date of discovery that Mr. Ramos (sic) has syphilis is on or
about January 9, 2020.
Petitioner argues that the relief she seeks should be granted because respondent acquired actual
knowledge of the facts constituting her claim within 90 days of its accrual or a reasonable time thereaf-
ter, respondent was not prejudiced by petitioner’s delay in providing notice of her claim and petitioner
has a reasonable excuse for the delay. Meanwhile, respondent argues that the petition must be denied
because the notice lacks the requisite specificity and petitioner’s medical records at Bellevue are not
annexed to the notice, and that petitioner has otherwise failed to meet her burden.
GML § 50-e(5) permits a claimant to apply for an order extending the time to file and serve the no-
tice of claim. This statute provides in pertinent part as follows:
In determining whether to grant the extension, the court shall consider, in particu-
lar, whether the public corporation or its attorney or its insurance carrier acquired
actual knowledge of the essential facts constituting the claim within the time
specified in subdivision one of this section or within a reasonable time thereafter.
Further, key factors the court should consider in decided whether to grant or deny leave to serve
late notice of claim include: [1] whether petitioner has demonstrated a reasonable excuse for the failure
to file notice of claim within 90 days; [2] whether the municipality acquired actual notice of the essential
facts constituting the claim within 90 days after it arose, or a reasonable time thereafter; and [3] wheth-
er the delay would substantially prejudice the municipality in defending the claim on the merits (Matter
of Nieves, supra at 337). “Leave to file a late notice of claim should be denied where the claims are pa-
tently meritless” (Swinton v. City of New York, 61 AD3d 557 [1st Dept 2009] quoting Matter of Catherine
G. v. County of Essex, 3 NY3d 175 [2004] [internal quotations omitted]).
The petition is granted for the reasons that follow. Here, the respondent received actual notice of
the claim approximately four weeks after the 90-day deadline to service notice of the claim had passed.
The court finds this timeline reasonable given that petitioner was suffering from memory loss and am-
nesia and had no idea what the true cause of her condition was. Further, petitioner is a native Spanish-
language speaker and not a medical professional. The short delay between the discovery of her diag-
nosis with syphilis and her retention of an attorney who then promptly filed a notice of claim upon re-
spondent was reasonable under the circumstances.
The court further finds that petitioner has established that respondent was not substantially preju-
diced by her de minimus delay. Indeed, petitioner had no further visits to Bellevue or any of respond-
ent’s other medical facilities and respondent is otherwise in possession of petitioner’s medical records
and can fully defend against this action despite the delay.
Finally, respondent has not shown that petitioner’s claims patently lack merit. To this point, the cas-
es which respondent relies on present differing procedural postures. Whether petitioner has an action-
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NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2021
able cause of action based upon a series of visits and the application of the continuous treatment doc-
trine remains for a potential dispositive motion and cannot, nor should not, be decided on this record
before the court. Petitioner’s failure to annex all of her medical records to the petition does not warrant
a different result in the context of the relief requested in this proceeding. Indeed, petitioner has annexed
the relevant medical records concerning her last visit to Bellevue as well as her treatment with Dr.
Romero who diagnosed petitioner with syphilis in January 2020, which establishes both a meritorious
claim and that her claim is not otherwise time barred.
In accordance herewith, it is hereby:
ORDERED that the petition is granted in its entirety and petitioner’s February 10, 2020 Notice of
Claim is deemed timely served nunc pro tunc and the Statue of Limitations is stayed through notice of
entry of this decision/order.
Any requested relief not expressly addressed herein has nonetheless been considered and is
hereby expressly denied and this constitutes the Decision and Order and Judgment of the court.
Petitioner is advised that this constitutes a final disposition of this index number and that any sub-
sequently filed summons and complaint requires the purchase of a new index number.
Dated: 5/5/21
_________________ So Ordered:
New York, New York
_______________________
Hon. Lynn R. Kotler, J.S.C.
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Preview
FILED: NEW YORK COUNTY CLERK 05/06/2021 10:19 AM INDEX NO. 805010/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.LYNN R. KOTLER, J.S.C. PART 8 ANA RAMOS INDEX NO. 805010/2021 MOT. DATE -v- MOT. SEQ. NO. 001 NEW YORK CITY HEALTH AND HOSPITALS CORP. The following papers were read on this motion to/for Notice of Motion/Petition/O.S.C. — Affidavits — Exhibits ECFS DOC No(s). Notice of Cross-Motion/Answering Affidavits — Exhibits ECFS DOC No(s). Replying Affidavits ECFS DOC No(s). Petitioner/Claimant seeks to assert a claim against respondent arising from alleged medical mal- practice in connection with the care petitioner received at Bellevue Hospital Center (“Bellevue”) and specifically arising from Bellevue’s failure to diagnose petitioner with syphilis. By way of this proceed- ing, petitioner now seeks for an order deeming her February 10, 2020 Notice of Claim timely served nunc pro tunc and finding that the Statue of Limitations is stayed pending the resolution of this Petition. Respondent New York City Health and Hospitals Corporation opposes the petition in an affirmation in opposition rather than an answer. According to her notice of claim dated February 10, 2020, petitioner alleges in pertinent part as fol- lows: … Throughout the course of her treatment the Claimant made multiple com- plaints that showed symptomology of syphilis and Bellevue Hospital Center and their associated medical professionals failed to diagnose that infection. Following an incident on October 1, 2019, the claimant reported to Belleuve Hos- pital Center complaining of acute headache and memory loss. In that incident she reported memory loss for 5 hours, and unable to recognize children or home. After being discharged, she followed up with Bellevue Hospital Center again on October 16, 2019. Again she recited the history that she complained of memory loss for 5 hours: unable to recognize children or home; numbness and tingling in left hand and left leg which lasted 5 days. She further reported memory problems had been going on for a few months prior to episode, and additionally claimant's daughter stated that claimant had issues with memory issues for an extended pe- riod of time. Dated: 5/5/21 _____________________________ HON. LYNN R. KOTLER, J.S.C. 1. Check one: □X CASE DISPOSED □ NON-FINAL DISPOSITION 2. Check as appropriate: Motion is □X GRANTED □ DENIED □ GRANTED IN PART □ OTHER 3. Check if appropriate: □SETTLE ORDER □ SUBMIT ORDER □ DO NOT POST □FIDUCIARY APPOINTMENT □ REFERENCE Page 1 of 3 1 of 3 FILED: NEW YORK COUNTY CLERK 05/06/2021 10:19 AM INDEX NO. 805010/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2021 Prior to this incident, the claimant expressed symptomology of syphilis. Of note, on January 4, 2017 the claimant complained of extreme forgetfulness. On Janu- ary 11, 2019 the claimant complained of pain her bones. On July 23, 2018, claimant complained of her loss. On August 10, 2016 claimant complained of fa- tigue and hair loss. On August 4, 2015 claimant complained of hand numbness and blurry vision. On April 21, 2014 claimant report feeling dizzy. Note that the Claimant reserves the right to supplement the additional dates as more infor- mation becomes available. Following the October 16, 2019, the Claimant reported to Physician Ana Romero. On January 9, 2020 the lab testing ordered by Dr. Romero revealed that Ms. Ramos tested positive for T. Pallidium ab. which is the marker for syphilis. Dr. Romero opined based on the testing levels that the claimant had syphilis for an extended period. The date of discovery that Mr. Ramos (sic) has syphilis is on or about January 9, 2020. Petitioner argues that the relief she seeks should be granted because respondent acquired actual knowledge of the facts constituting her claim within 90 days of its accrual or a reasonable time thereaf- ter, respondent was not prejudiced by petitioner’s delay in providing notice of her claim and petitioner has a reasonable excuse for the delay. Meanwhile, respondent argues that the petition must be denied because the notice lacks the requisite specificity and petitioner’s medical records at Bellevue are not annexed to the notice, and that petitioner has otherwise failed to meet her burden. GML § 50-e(5) permits a claimant to apply for an order extending the time to file and serve the no- tice of claim. This statute provides in pertinent part as follows: In determining whether to grant the extension, the court shall consider, in particu- lar, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one of this section or within a reasonable time thereafter. Further, key factors the court should consider in decided whether to grant or deny leave to serve late notice of claim include: [1] whether petitioner has demonstrated a reasonable excuse for the failure to file notice of claim within 90 days; [2] whether the municipality acquired actual notice of the essential facts constituting the claim within 90 days after it arose, or a reasonable time thereafter; and [3] wheth- er the delay would substantially prejudice the municipality in defending the claim on the merits (Matter of Nieves, supra at 337). “Leave to file a late notice of claim should be denied where the claims are pa- tently meritless” (Swinton v. City of New York, 61 AD3d 557 [1st Dept 2009] quoting Matter of Catherine G. v. County of Essex, 3 NY3d 175 [2004] [internal quotations omitted]). The petition is granted for the reasons that follow. Here, the respondent received actual notice of the claim approximately four weeks after the 90-day deadline to service notice of the claim had passed. The court finds this timeline reasonable given that petitioner was suffering from memory loss and am- nesia and had no idea what the true cause of her condition was. Further, petitioner is a native Spanish- language speaker and not a medical professional. The short delay between the discovery of her diag- nosis with syphilis and her retention of an attorney who then promptly filed a notice of claim upon re- spondent was reasonable under the circumstances. The court further finds that petitioner has established that respondent was not substantially preju- diced by her de minimus delay. Indeed, petitioner had no further visits to Bellevue or any of respond- ent’s other medical facilities and respondent is otherwise in possession of petitioner’s medical records and can fully defend against this action despite the delay. Finally, respondent has not shown that petitioner’s claims patently lack merit. To this point, the cas- es which respondent relies on present differing procedural postures. Whether petitioner has an action- Page 2 of 3 2 of 3 FILED: NEW YORK COUNTY CLERK 05/06/2021 10:19 AM INDEX NO. 805010/2021 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 05/05/2021 able cause of action based upon a series of visits and the application of the continuous treatment doc- trine remains for a potential dispositive motion and cannot, nor should not, be decided on this record before the court. Petitioner’s failure to annex all of her medical records to the petition does not warrant a different result in the context of the relief requested in this proceeding. Indeed, petitioner has annexed the relevant medical records concerning her last visit to Bellevue as well as her treatment with Dr. Romero who diagnosed petitioner with syphilis in January 2020, which establishes both a meritorious claim and that her claim is not otherwise time barred. In accordance herewith, it is hereby: ORDERED that the petition is granted in its entirety and petitioner’s February 10, 2020 Notice of Claim is deemed timely served nunc pro tunc and the Statue of Limitations is stayed through notice of entry of this decision/order. Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied and this constitutes the Decision and Order and Judgment of the court. Petitioner is advised that this constitutes a final disposition of this index number and that any sub- sequently filed summons and complaint requires the purchase of a new index number. Dated: 5/5/21 _________________ So Ordered: New York, New York _______________________ Hon. Lynn R. Kotler, J.S.C. Page 3 of 3 3 of 3