The Second Department granted leave to serve a late notice of claim based on (1) evidence that plaintiffs' decedent had a reasonable excuse for his failure to serve the notice timely, (2) medical records indicating that the municipality acquired actual notice of the essential facts of the claim within 90 days after the claim arose or a reasonable time thereafter, and (3) evidence of an absence of prejudice resulting from the delay, in Difuentes v. New York City Health & Hosps. Corp., which was decided on August 7, 2007.

The court noted that plaintiffs' decedent's delay was attributable to the fact that he did not learn that his cancer had recurred until five months after defendants' treatment of him had ended. Thereafter, he suffered a recurring debilitating illness, and, what is more, had difficulty in retaining counsel. Importantly, the court also said that there is actual knowledge of the facts constituting the claim when, as here, medical records suggest an injury attributable to malpractice.