Sullivan and Wallach, JJ., dissent in a memorandum by Wallach, J., as follows: I would affirm the order appealed from.
General Municipal Law § 50-e (1) (a) requires that tort claims against a public corporation must be noticed within 90 days after the claim arises, except that in a wrongful death action, the 90 days runs from the appointment of the decedent’s representative. Petitioner Banegas-Nobles received letters of administration on the goods, chattels and credits of her decedent mother on January 16, 1991.
Because the notice of claim was untimely with respect to that portion alleging conscious pain and suffering, BanegasNobles and her widowed father petitioned to file a late notice to that effect, under General Municipal Law § 50-e (5). The petition was denied for failure to provide a reasonable excuse for delay, and for the absence of an affidavit by someone with actual knowledge of the circumstances, petitioners’ attorney’s affirmation ruled insufficient for that purpose. Thereafter, respondent did offer decedent’s medical records, however, in compliance with the order of March 19, 1991.
Petitioners then moved to renew and reargue, this time with an affidavit by Banegas-Nobles, explaining that the reason for the delay in filing a claim was that her time had been totally consumed in caring for her 71-year old father, who is in failing health, and her 36-year old brother, who suffers from cerebral palsy and mental retardation, and requires constant supervision. (These were chores that had previously *382been undertaken by decedent. Banegas-Nobles’ three other siblings live in New Jersey.)
Banegas-Nobles stated in her affidavit that for the first 10 months she had no reason to believe anything medically untoward had contributed to her mother’s death. But then, "On or about November 30, 1990 in discussing my mother’s care and treatment with a family friend, who is a registered nurse, we discovered for the first time that there was reason to believe my mother was not adequately cared for. We immediately made an appointment with Fuchsberg law firm.” There is absolutely no indication that this family friend was in any way connected with Harlem Hospital, or knew any more facts about the case than Banegas-Nobles herself possessed.
General Municipal Law § 50-e (5) permits delayed filing of notice of claim where it can be shown that the public corporation or its insurance carrier already had actual knowledge of the essential facts, and the delay will not result in substantial prejudice to the public corporation in maintaining its defense on the merits. Of course, in the case of medical malpractice it can always be argued that the hospital records constitute facts already in the hands of the public corporation, thus giving it "actual knowledge”. Until 1989 there was a body of case law adhering to that proposition (see, Matter of Quiroz v City of New York, 154 AD2d 315, 316; Kavanaugh v Memorial Hosp. & Nursing Home, 126 AD2d 930, 931; Rechenberger v Nassau County Med. Ctr., 112 AD2d 150, 152). But since then, this Department has consistently held that the mere possession of hospital records is insufficient to provide the municipal corporation with actual knowledge of facts essential to constitute a claim, so as to justify delayed notice of claim (Thompson v New York City Health & Hosps. Corp., 172 AD2d 433, 434; Matter of Aviles v New York City Health & Hosps. Corp., 172 AD2d 237, 238; Perkins v New York City Health & Hosps. Corp., 167 AD2d 150; Bailey v City of New York, 159 AD2d 280).
A valid excuse for the delay is still required (Perkins v New York City Health & Hosps. Corp., supra). Compare Arias v New York City Hous. Auth. (178 AD2d 188), where late notice was permitted five months after the deadline. There an infant plaintiff was injured when she fell from defective playground equipment. Excuse for the delay was adequately explained by the fact that the child’s mother had given birth five days after the accident, and that all of her time thereafter was consumed in caring alone for her children. Moreover, a showing that the *383defective equipment was still intact at the time of the motion for leave to file a late notice meant that the municipal corporation had suffered no prejudice by reason of the delay.
In Thompson v New York City Health & Hosps. Corp. (supra), the infant decedent’s mother was too bereaved to contact an attorney until nine months after the child’s death. She was appointed administratrix two months later, and moved to file a late notice of claim three months after that. As in the case at bar, plaintiff Thompson sought to file claims both for wrongful death and for the child’s conscious pain and suffering. We held that even though the claim for wrongful death was timely, the plaintiff’s conclusory assertions were insufficient to excuse her delay in filing claims for the child’s pain and suffering.
Petitioners have failed to justify their delayed service of a late notice of claim with respect to decedent’s alleged conscious pain and suffering. Accordingly, I would affirm the disposition of the IAS court to the extent that it denied, on renewal, petitioners’ application.