In medical malpractice actions against public hospitals and municipal entities in New York, compliance with the notice of claim requirements under General Municipal Law §50-e is often a critical threshold issue. Failure to timely serve a notice of claim can result in dismissal of an otherwise meritorious case. However, courts retain discretion to permit late notices of claim where the statutory factors weigh in the claimant’s favor. A recent Appellate Division decision illustrates how that discretion is applied in the context of catastrophic birth injury litigation.

In Moody–DuBois v. Westchester Medical Center, 238 A.D.3d 733 (App. Div. 2d Dept’ 2025) the plaintiff mother received prenatal care and treatment at Westchester Medical Center while pregnant in May 2011. During treatment, she was found to be in active labor, and the infant was in a double footling breech position. The attending physician recommended proceeding with a vaginal delivery rather than a cesarean section, and the mother consented. Following birth, the infant suffered severe complications, including a large hematoma, respiratory distress, hypotension, and hypothermia. Subsequent diagnostic testing revealed a grade IV intraventricular hemorrhage and hydrocephalus. The child later developed persistent seizures, cerebral palsy, and significant developmental and cognitive impairments.

Years later, the mother, acting as parent and natural guardian, served a notice of claim on the hospital and commenced a medical malpractice action alleging negligent departures from accepted standards of care, as well as lack of informed consent. Because the notice of claim was served well beyond the statutory deadline, the mother moved for leave to deem the notice timely served nunc pro tunc and for permission to amend it. The hospital opposed the motion and cross-moved to dismiss the complaint based on untimeliness.

The Supreme Court granted the mother’s motion, denied most of the hospital’s cross-motion, and dismissed only the cause of action alleging lack of informed consent. On appeal, the Appellate Division affirmed.

In upholding the late notice of claim, the court emphasized the three factors that govern applications under General Municipal Law §50-e(5): whether the public corporation had actual knowledge of the essential facts constituting the claim, whether the delay substantially prejudiced the defendant’s ability to defend the case on the merits, and whether the claimant demonstrated a reasonable excuse for the delay.

The court found that Westchester Medical Center had actual knowledge of the essential facts underlying the claim because its own employees participated in the delivery and neonatal care at issue and generated medical records from which it could readily be inferred that the infant’s injuries resulted from deviations from accepted medical practice. Those records were sufficient to place the hospital on notice of the potential malpractice claim.

The court further held that the mother met her initial burden of demonstrating a lack of substantial prejudice. Given the extensive contemporaneous medical records and the hospital’s ability to investigate the events surrounding the delivery and neonatal treatment, the plaintiff made a plausible showing that the delay did not impair the hospital’s defense. In response, the hospital failed to present a particularized evidentiary showing of actual prejudice, which the statute requires.

Finally, the court accepted the mother’s explanation for the delay. The record established that she was preoccupied with managing her child’s severe and ongoing medical conditions, a circumstance that New York courts have repeatedly recognized as a reasonable excuse when supported by the nature and extent of the child’s injuries.

This decision underscores that late notices of claim are not automatically fatal in medical malpractice actions against public hospitals, particularly in cases involving serious birth injuries. Where the hospital has contemporaneous knowledge of the relevant facts, cannot demonstrate actual prejudice, and the delay is attributable to a parent’s focus on caring for a catastrophically injured child, courts will exercise their discretion to permit the case to proceed.

Giulia R. Marino, Esq.