Balbuenas v. N.Y.C. Health & Hosps. Corp.

209 A.D.3d 642

177 N.Y.S.3d 52

In the Matter of Micaela BALBUENAS, et al., appellants,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., respondents.

2020–05260

Index No. 718447/19

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 8, 2022

October 5, 2022

Silberstein Awad & Miklos, P.C. (Pollack, Pollack, Isaac & DeCicco, LLP, New York, NY [Brian J. Isaac and Jillian Rosen ], of counsel), for appellants.

Sylvia O. Hinds–Radix, Corporation Counsel, New York, NY (Scott Shorr and Antonella Karlin of counsel), for respondents.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In a proceeding pursuant to General Municipal Law § 50–e(5) for leave to serve a late notice of claim, the petitioners appeal from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), entered March 3, 2020. The order denied the petition and dismissed the proceeding.

ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provision thereof denying that branch of the petition which was for leave to serve a late notice of claim on behalf of the petitioner Micaela Balbuenas, and substituting therefor a provision granting that branch of the petition; as so modified, the order is affirmed, with costs to the petitioners.

In January 2018, Micaela Balbuenas learned that she was pregnant during a medical appointment at Bellevue Hospital Center (hereinafter the hospital), a municipal hospital located in New York County and operated by the New York City Health and Hospitals Corporation (hereinafter NYCHHC). The hospital's medical staff characterized Balbuenas's pregnancy as high risk due to her uncontrolled diabetes, and she thereafter received regular prenatal care at the hospital. Balbuenas was scheduled to be induced at 37 weeks, i.e., on August 1, 2018. However, when Balbuenas presented to the hospital two days before the scheduled induction, the medical staff determined that there was no fetal heartbeat. On July 31, 2018, Balbuenas gave birth to a stillborn baby. She thereafter received mental health treatment relating to emotional and psychological difficulties she experienced as a result of the stillbirth.

In July 2019, Balbuenas and her husband, Palemon Mendez (hereinafter together the petitioners), retained counsel. Approximately three months later, the petitioners commenced this proceeding pursuant to General Municipal Law § 50–e(5) in the Supreme Court, Queens County, for leave to serve a late notice of claim upon NYCHHC and the hospital (hereinafter together the respondents). By order entered March 3, 2020, the Supreme Court denied the petition and dismissed the proceeding on the ground of improper venue, without prejudice to the filing of a new petition in New York County for the same relief. The petitioners appeal.

Pursuant to section 20 of the New York City Health and Hospitals Corporation Act, an action against NYCHHC "shall be brought in the City of New York, in the county within the city in which the cause of action arose" ( McKinney's Uncons Laws of N.Y. § 7401[3] ; see Wager v. Pelham Union Free Sch. Dist., 108 A.D.3d 84, 87, 966 N.Y.S.2d 126 ). This and other statutory venue provisions "are designed to further the convenience of governmental entities" ( Wager v. Pelham Union Free Sch. Dist., 108 A.D.3d at 91, 966 N.Y.S.2d 126 ). "[W]hile couched in mandatory language," such venue provisions "are not jurisdictional in nature" ( id. ). As a result, a defendant or respondent may implicitly "waive proper venue as a matter of right" in an action or proceeding that is filed "in an improper county ... if it does not timely demand or move for a change of venue in accordance with CPLR 510 and 511" ( id. at 90, 966 N.Y.S.2d 126 ; see Arduino v. Molina–Ovando, 141 A.D.3d 622, 623, 36 N.Y.S.3d 186 ). Therefore, even though the medical malpractice cause of action the petitioners seek to assert herein arose in New York County, the respondents waived any objection to the venue of this proceeding for leave to serve a late notice of claim by not raising such an objection in opposition to the petition.

Moreover, "in the absence of a motion or consent, [a] court ha[s] no authority to sua sponte change [the] venue" of an action or proceeding or to, "in effect, do so by dismissing [the action or proceeding] without prejudice to refiling in the proper county" (Matter of Travelers Indem. Co. of Ill. v. Nnamani, 286 A.D.2d 769, 770, 730 N.Y.S.2d 522 ). The Supreme Court therefore erred when it raised the issue of improper venue sua sponte and dismissed this proceeding on that ground. The court should have instead decided the merits of the petition. Since the record before this Court is fully developed and the parties have briefed the relevant issues, we deem it appropriate to address the merits in the interest of judicial economy, rather than remitting the matter to the Supreme Court to do so (see Padarat v. New York City Tr. Auth., 175 A.D.3d 700, 703, 107 N.Y.S.3d 389 ; Matter of Joy v. County of Suffolk, 89 A.D.3d 1025, 1026, 933 N.Y.S.2d 369 ).

"In determining whether to exercise discretion to extend the time for a petitioner to serve a notice of claim, the court must consider all relevant facts and circumstances, including, but not limited to, whether (1) the municipality or public corporation acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose or a reasonable time thereafter, (2) the delay would substantially prejudice the municipality or public corporation in its defense, and (3) the claimant demonstrated a reasonable excuse for the failure to serve a timely notice of claim" ( Matter of Ibrahim v. New York City Tr. Auth., 202 A.D.3d 786, 787, 158 N.Y.S.3d 865 ). "The presence or absence of any one of these factors is not dispositive" ( Rodriguez v. Westchester Med. Ctr. [WMC], 196 A.D.3d 659, 660, 152 N.Y.S.3d 456 ).

Where leave is sought in one proceeding to pursue both a direct claim by an injured person and a derivative claim by his or her spouse, the spouse's request for leave to serve a late notice of claim will not automatically be granted even if leave is granted to the injured person. Instead, the spouse's request must be analyzed separately (see Hayden v. Incorporated Vil. of Hempstead, 103 A.D.2d 765, 766, 477 N.Y.S.2d 392 ; Matter of Holland v. New York City Health & Hosps. Corp., 81 A.D.2d 638, 639, 440 N.Y.S.2d 559 ; see also Matter of Felice v. Eastport/South Manor Cent. School Dist., 50 A.D.3d 138, 151–152, 851 N.Y.S.2d 218 ).

"In medical malpractice cases, when the medical records themselves contain facts that detail both the procedures used and the [patient's] injuries, and suggest that the relevant public corporation may be responsible for those injuries, the public corporation will be held to have had actual knowledge of the essential facts constituting the claim" ( Matter of Rojas v. New York City Health & Hosps. Corp., 127 A.D.3d 870, 872–873, 6 N.Y.S.3d 294 [internal quotation marks omitted]). On the other hand, "[m]erely having or creating hospital records, without more, does not establish actual knowledge of a potential injury where [those] records do not evince that the medical staff, by its acts or omissions, inflicted any injury" ( Pannell v. New York City Health & Hosps. Corp., 192 A.D.3d 1130, 1131, 145 N.Y.S.3d 578 [internal quotation marks omitted]). The alleged malpractice must be "apparent from an independent review of the medical records" ( J.H. v. New York City Health & Hosps. Corp. [Elmhurst Hosp. Ctr.], 169 A.D.3d 880, 883, 94 N.Y.S.3d 345 [internal quotation marks omitted]). "While expert opinion may be helpful to this showing, it is not required where the basic facts underlying the malpractice claims can be gleaned from the ... medical records" ( Ahmed v. New York City Health & Hosp. Corp., 204 A.D.3d 870, 872, 167 N.Y.S.3d 132 [internal quotation marks omitted]).

Here, the petitioners failed to demonstrate that the medical records, on their face, established that the medical staff at the hospital, by its acts or omissions, caused the stillbirth (cf. Rodriguez v. Westchester Med. Ctr. [WMC], 196 A.D.3d at 660, 152 N.Y.S.3d 456 ). The petitioners' expert, in effect, opined only that "there could have been a better result ... [if] the ... medical staff [had] taken a different course of treatment," which is insufficient to establish the requisite actual knowledge (see W.Z. v. New York City Health & Hosps. Corp., 185 A.D.3d 759, 761, 127 N.Y.S.3d 125 ). While the actual knowledge factor generally should be given "great weight" in the analysis ( Etienne v. City of New York, 189 A.D.3d 1400, 1401, 134 N.Y.S.3d 738 [internal quotation marks omitted]), the petitioners' failure to satisfy that factor is not fatal to their petition for leave to serve a late notice of claim (see Matter of Davis v. Incorporated Vil. of Laurel Hollow, 195 A.D.3d 1019, 1020, 151 N.Y.S.3d 141 ). Accordingly, analysis of the other factors is required.

"To establish lack of substantial prejudice, the petitioner must meet a threshold burden of presenting some evidence or plausible argument that supports a finding of no substantial prejudice" ( Matter of Shumway v. Town of Hempstead, 187 A.D.3d 758, 759, 133 N.Y.S.3d 25 ). "Such a showing need not be extensive" ( Matter of Newcomb v. Middle Country Cent. Sch. Dist., 28 N.Y.3d 455, 466, 45 N.Y.S.3d 895, 68 N.E.3d 714 ). "Once this initial showing has been made, the respondent must respond with a particularized evidentiary...