Owens v. New York City Health & Hospitals Corp.

—In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the defendants New York City Health and Hospitals Corporation, Franz Margono s/h/a “John” Margono, Claudette Jones s/h/a C.E. Jones, and Bente Hoegsberg s/h/a “John” Hoegsberg appeal from an order of the Supreme Court, Kings County (Clemente, J.), dated September 24, 1998, which granted that branch of the plaintiffs motion which was to deem his notice of claim to be timely served and denied their cross motion to dismiss the complaint.

Ordered that the order is affirmed, with costs.

Under the circumstances of this case, the Supreme Court providently exercised its discretion in deeming the plaintiffs notice of claim timely served. The application was made within the appropriate period of limitation, as tolled by the plaintiffs infancy (see, Matter of Makris v Westchester County, 208 AD2d *515843). In addition, no undue prejudice was caused by the delay since the New York City Health and Hospitals Corporation was in possession of the plaintiffs medical records as of the time of the alleged malpractice and thus had actual notice of the claim and its underlying facts (see, Matter of Tomlinson v New York City Health & Hosps. Corp., 190 AD2d 806, 807). Bracken, J. P., Joy, Thompson, Goldstein and Feuerstein, JJ., concur.