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Late Notices of Claim on Behalf of Infants
A notice of claim must be served in accordance with New York's General Municipal Law (GML) § 50-e on any public corporation as a condition precedent to commencing a lawsuit against the corporation — and medical malpractice actions are no exception. The notice must generally be served within 90 days after the claim arises, although that requirement is satisfied if the notice of claim is filed within 90 days of a continuous course of treatment. See Young v. New York City Health & Hosp. Corp., 91 N.Y.2d 291, 295-96 (1998); Allende v. New York City Health & Hosp. Corp., 90 N.Y.2d 333, 337-38 (1997). Where a notice of claim is not timely filed, GML
§ 50-e[5] provides a court discretion to extend the time, provided the extension does not exceed the time limit for commencing an action. Therefore, an application for a late notice of claim sounding in medical malpractice on behalf of an infant must be brought within the 10-year statute of limitations running from the date of the malpractice. See Matter of Daniel J. v. New York City Health & Hosp. Corp., 77 N.Y.2d 630, 633-34 (1991).
This article examines two decisions from New York's highest court, the Court of Appeals, addressing such applications: Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531 (2006), and Wally G. ex rel. Yoselin T. v. New York City Health and Hospitals Corp., ___ N.Y.3d ___, 2016 WL 3188975 (2016). Both cases affirmed Appellate Division decisions denying motions for late notices of claim on behalf of infants allegedly injured as a result of malpractice around the time of their birth. Late-notice motions are particularly important in cases of this nature because the parents themselves often will not know that there was malpractice or even an injury until months or years after the fact.
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