2. Affidavit in Opposition of Elizabeth G. Redmond, Esq. sworn to May 24, 2006
filed May 26, 2006.
On August 5, 2005, Movant served a “Notice of Intention to File
Claim” upon counsel to Roswell Park Cancer Institute Corporation (RPCI)
and on the Attorney General of the State of New York, alleging medical
negligence and malpractice arising from a surgical procedure performed on Movant
by an employee of RPCI. Barbara Przybylak (Movant) was admitted to RPCI on May
11, 2005, for evaluation and removal of an enlarging node in the upper lobe of
her left lung. On that date, Chukwumere E. Nwogu, M.D. performed a Video
Assisted Thorascopic Surgery (VATS) procedure upon Movant to first obtain a
biopsy of the node and then to remove the lesion. Movant alleges that during
the procedure Dr. Nwogu caused a tear in the pulmonary artery setting in motion
a series of complications which led to an above the knee amputation of her right
leg and other permanent injuries.
By letter dated September 14, 2005, counsel for RPCI rejected the Notice of
Intention to File Claim with the notation that a person wishing to pursue an
action against RPCI must first serve upon said institution a “Notice of
Claim” as prescribed by §3567 of the Public Authorities Law and, by
reference, §50-e of the General Municipal Law (see Matter of Tyson v
Roswell Park Cancer Inst. Corp., 4 Misc 3d 556 ). Since
the 90 day period within which to timely serve a notice of claim has expired,
Movant seeks relief from the Court.
General Municipal Law §50-e establishes a protocol for serving a notice of
claim as a condition precedent to a suit against a public corporation. Section
50-e (1) requires that the notice be served within 90 days after the claim
arises and §50-e (2) provides for the form and content of the notice. The
notice of intention to file claim in this matter was properly served within 90
days of the incident giving rise to the claim and it contains the necessary
information and complies with all the other statutory requirements with respect
to a notice of claim, except that it is mislabeled a “Notice of Intention
to File Claim” instead of “Notice of Claim.”
Pursuant to General Municipal Law §50-e (6), “a mistake, omission,
irregularity, or defect made in good faith” in a notice of claim may be
“corrected, supplied or disregarded” in the court’s
discretion, provided that the public corporation was not prejudiced thereby
(see D’Alessandro v New York City Tr. Auth., 83 NY2d 891 ;
Butler v Town of Smithtown, 293 AD2d 696 ). Here, Movant’s
submissions indicate that the error in not properly labeling the notice was made
in good faith.
Furthermore, RPCI did not demonstrate any actual prejudice. It is undisputed
that counsel for RPCI and the Attorney General, actually received Movant’s
notice of intention on August 5, 2005, less than 90 days after the incident.
Moreover, RPCI had actual knowledge of the essential facts underlying the claim
contemporaneous with its occurrence since Movant’s physician is allegedly
an employee of RPCI and the surgical procedure in question was performed within
that hospital (see Leone v County of Nassau, 225 AD2d 776 ).
Although RPCI has challenged Movant’s application, it has not claimed that
it does not have actual knowledge of the facts and circumstances surrounding the
incident or otherwise demonstrated that it has been prejudiced in any way.
Accordingly, it is
ORDERED, that motion M-71718 is granted and the notice of intention as served
August 5, 2005, is deemed in fact to be a notice of claim pursuant to General
Municipal Law §50-e (6), and the 30 days immediately following such
service, before Defendant attempted to reject the notice and during which time
Defendant took no action, shall be deemed to be the period during which
adjustment or payment has been neglected or refused pursuant to Public
Authorities Law §3567 (1) (b).The claim proper is to be filed and served in
conformity with the requirements of Court of Claims Act §§ 11 and
11-a, with service also being made on RPCI, within the time constraints of
Public Authorities Law §3567 (1) (c).