General Municipal Law § 50-e(5)

The First Department remanded for reconsideration of plaintiff's application for leave to serve a late notice of claim, in Berete v. New York Health & Hospitals Corp., which was decided on February 26, 2008. Supreme Court erroneously concluded that it was without discretion to deny leave to serve a late notice of claim to a plaintiff who allegedly suffered a neonatal injury at defendant's facility, where there was a medical record memorializing the details of the delivery.

New York practice point: General Municipal Law § 50-e (5) requires courts to exercise discretion in determining whether to grant or deny leave to file a late notice of claim. The statute contains a nonexhaustive list of factors that the court should weigh, and requires consideration of all relevant facts and circumstances.