Opinion
11-10-2016
In the Matter of Malachi FICEK, Claimant–Respondent, v. AKRON CENTRAL SCHOOL DISTRICT, Salamanca City Central School District, Respondents–Appellants, et al., Respondents.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of Counsel), for Respondent–Appellant Akron Central School District. Sugarman Law Firm, LLP, Buffalo (Brenna C. Gubala of Counsel), for Respondent–Appellant Salamanca City Central School District. Lewis & Lewis, P.C., Jamestown (John I. Lamancuso of Counsel), for Claimant–Respondent.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale (Christine Gasser of Counsel), for Respondent–Appellant Akron Central School District.
Sugarman Law Firm, LLP, Buffalo (Brenna C. Gubala of Counsel), for Respondent–Appellant Salamanca City Central School District.
Lewis & Lewis, P.C., Jamestown (John I. Lamancuso of Counsel), for Claimant–Respondent.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:In a case very similar to another case brought before us (Matter of Candino v. Starpoint Cent. Sch. Dist., 115 A.D.3d 1170, 982 N.Y.S.2d 210, affd. 24 N.Y.3d 925, 993 N.Y.S.2d 538, 17 N.E.3d 1134 ), this appeal involves a wrestler (claimant) at respondent Salamanca City Central School District (Salamanca) alleging that he contracted herpes from another wrestler at respondent Akron Central School District (Akron) during a high school wrestling tournament. Supreme Court granted claimant's application for leave to serve a late notice of claim brought 13 months after the incident. Salamanca and Akron now appeal.
“A timely notice of claim[, i.e., within 90 days after accrual of the claim,] must be served upon a school district before an injured person may commence a tort action against the district” (Matter of Felice v. Eastport/South Manor Cent. Sch. Dist., 50 A.D.3d 138, 143, 851 N.Y.S.2d 218 ; see Education Law § 3813[2] ; General Municipal Law § 50–e[1][a] ). Courts have broad discretion in determining whether to grant an application for leave to serve a late notice of claim (see Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531, 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Palumbo v. City of Buffalo, 1 A.D.3d 1032, 1033, 767 N.Y.S.2d 371 ). “ ‘In determining whether to grant such leave, the court must consider, inter alia, whether the claimant has shown a reasonable excuse for the delay, whether the [district] had actual knowledge of the facts surrounding the claim within 90 days of its accrual, and whether the delay would cause substantial prejudice to the [district]’ ” (Diez v. Lewiston–Porter Cent. Sch. Dist., 140 A.D.3d 1665, 1665, 34 N.Y.S.3d 283 ; see Brown v. City of Buffalo, 100 A.D.3d 1439, 1440–1441, 954 N.Y.S.2d 303 ; see generally General Municipal Law § 50–e[5] ; Education Law § 3813[2–a] ).
In support of his application, claimant offered as an excuse for failing to serve a timely notice of claim only the fact that he was an infant at the time he was diagnosed with herpes. “ ‘[N]either infancy alone ... nor ignorance of the law ... provides a sufficient excuse for failure to [serve] a timely notice of claim’ ” (Le Mieux v. Alden High Sch., 1 A.D.3d 995, 996, 767 N.Y.S.2d 348 ; see Matter of Saponara v. Lakeland Cent. Sch. Dist., 138 A.D.3d 870, 871, 29 N.Y.S.3d 491 ; Felice, 50 A.D.3d at 150, 851 N.Y.S.2d 218 ). Claimant did not “demonstrate[ ] any specific nexus between [his] infancy and [his] delay in serving a late notice of claim” (Rose v. Rochester Hous. Auth., 52 A.D.3d 1268, 1269, 859 N.Y.S.2d 806 ). The remaining reasons set forth by claimant for failing to serve a timely notice of claim were improperly raised for the first time in his reply papers (see Matter of Anderson v. New York City Dept. of Educ., 102 A.D.3d 958, 959, 958 N.Y.S.2d 746 ; see generally Mikulski v. Battaglia, 112 A.D.3d 1355, 1356, 977 N.Y.S.2d 839 ). Nevertheless, the failure to offer an excuse for the delay “ ‘is not fatal where ... actual notice was had and there is no compelling showing of prejudice to [respondents]’ ” (Shaul v. Hamburg Cent. Sch. Dist., 128 A.D.3d 1389, 1389, 8 N.Y.S.3d 522 ; see Terrigino v. Village of Brockport, 88 A.D.3d 1288, 1288, 930 N.Y.S.2d 744 ; Matter of Gilbert v. Eden Cent. Sch. Dist., 306 A.D.2d 925, 926, 762 N.Y.S.2d 463 ).
With respect to the actual knowledge of the essential facts underlying the claim, the evidence established that, shortly after the tournament, Akron became aware that its wrestler had been diagnosed with herpes. Akron notified the Section VI Executive Director, who sent an email to athletic directors notifying them that he was informed of confirmed cases of herpes involving a particular weight class and directing them to have their wrestlers checked for that condition. The evidence also established that Salamanca learned shortly after the tournament that claimant had been diagnosed with herpes. In addition, both Akron and Salamanca were aware that a parent of another student had served a timely notice of claim against Akron, alleging that its wrestler had infected her son.
We reject Salamanca's contention that it did not have actual knowledge of the essential facts constituting the claim. Salamanca had actual knowledge of the injuries or damages sustained by claimant, and this is not a situation where it was unaware of the “the facts ... underlying the claim” (Williams, 6 N.Y.3d at 537, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; cf. Diez, 140 A.D.3d at 1666, 34 N.Y.S.3d 283 ; Le Mieux, 1 A.D.3d at 996, 767 N.Y.S.2d 348 ). We reject Salamanca's further contentions that it would be prejudiced by the late notice (see Matter of Lindstrom v. Board of Educ. of Jamestown City Sch. Dist., 24 A.D.3d 1303, 1304, 805 N.Y.S.2d 908 ), and that the claim “patently lacks merit” (Hess v. West Seneca Cent. Sch. Dist., 15 N.Y.3d 813, 814, 908 N.Y.S.2d 146, 934 N.E.2d 879 ; see Matter of Catherine G. v. County of Essex, 3 N.Y.3d 175, 179, 785 N.Y.S.2d 369, 818 N.E.2d 1110 ).
We agree with Akron, however, that it did not have actual knowledge of the essential facts constituting the claim. Akron established that it was not aware until it received claimant's application for leave to serve a late notice of claim that he was allegedly infected with herpes by wrestling Akron's student at the tournament. As with the claimant in Candino, claimant here established that, at most, Akron had constructive knowledge of the claim, which is insufficient (see Candino, 115 A.D.3d at 1171–1172, 982 N.Y.S.2d 210 ). It is well settled that actual knowledge of the claim is the factor that is accorded “great weight” in determining whether to grant leave to serve a late notice of claim (Santana v. Western Regional Off–Track Betting Corp., 2 A.D.3d 1304, 1304–1305, 770 N.Y.S.2d 258 ; see Williams, 6 N.Y.3d at 535, 814 N.Y.S.2d 580, 847 N.E.2d 1154 ; Matter of Turlington v. Brockport Cent. Sch. Dist., 143 A.D.3d 1247, 39 N.Y.S.3d 338 [2016] ). Even if we agree with claimant that Akron suffered no prejudice from the delay, we nevertheless conclude that the court abused its discretion in granting claimant's application for leave to serve a late notice of claim against Akron (see Candino, 115 A.D.3d at 1172, 982 N.Y.S.2d 210 ), and we therefore modify the order accordingly.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying claimant's application with respect to respondent Akron Central School District, and as modified the order is affirmed without costs.