The infant plaintiff Mammud Rashid Beretey (hereinafter the plaintiff) was born at the defendant New York City Health & Hospitals Corporation (hereinafter the Hospital) on November 2, 1996. Prior to his birth, the plaintiff’s mother had been given Pitocin to induce labor, but the labor did not progress and Hospital personnel ultimately performed a caesarean section. The Hospital’s records indicate that, at birth, the plaintiff suffered from perinatal asphyxia and respiratory depression. His birth record indicates that he weighed 9 pounds, 3 ounces and his Apgar score was 1 at 1 minute after birth, 5 at 5 minutes after birth, and 7 at 10 minutes after birth. The Hospital’s records do not indicate any signs of brain damage. For several days, the Long Island plaintiff received treatment for his condition in the Hospital’s infant intensive care unit. Seven days after birth, the plaintiff was discharged from the Hospital.
A Medical Malpractice Lawyer said that, the mother alleges that she learned through a school evaluation conducted in or about 2000, that the plaintiff would have to be placed in a special school for both physical and mental issues, and that he had severe cognitive developmental delays and some motor condition difficulties. In January 2006 the plaintiff, by his mother, served a notice of claim seeking damages for medical malpractice for the birth injury suffered by the plaintiff, alleging that the perinatal asphyxia he suffered at birth resulted from the negligence of the Hospital and its personnel in delaying to perform a cesarean section on his mother. The notice of claim asserted that the perinatal asphyxia caused him to develop cognitive delays, mental retardation, severe hyperactivity, and coordination difficulties.
In February 2006 the plaintiff, by his mother, commenced an action to recover damages for medical malpractice against the Hospital. In October 2006 he moved, in effect, for leave to deem the notice of claim timely served nunc pro tunc or, in the alternative, for leave to serve a late notice of claim. The Supreme Court denied the motion. Thus, the infant plaintiff Mammud Rashid Beretey, by his mother and natural guardian Mariama Sheriff, appeals from an order of the Supreme Court.