        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

83
CA 13-01241
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, SCONIERS, AND WHALEN, JJ.


IN THE MATTER OF JOSEPH D. CANDINO, JR.,
CLAIMANT-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

STARPOINT CENTRAL SCHOOL DISTRICT, STARPOINT
CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION,
STARPOINT HIGH SCHOOL, IROQUOIS CENTRAL SCHOOL
DISTRICT, IROQUOIS CENTRAL SCHOOL DISTRICT BOARD
OF EDUCATION, IROQUOIS CENTRAL HIGH SCHOOL, WEST
SENECA SCHOOL DISTRICT, WEST SENECA SCHOOL
DISTRICT BOARD OF EDUCATION AND WEST SENECA EAST
SENIOR HIGH SCHOOL, RESPONDENTS-APPELLANTS.


BAXTER SMITH & SHAPIRO, P.C., WEST SENECA (LOUIS B. DINGELDEY, JR., OF
COUNSEL), FOR RESPONDENTS-APPELLANTS STARPOINT CENTRAL SCHOOL
DISTRICT, STARPOINT CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND
STARPOINT HIGH SCHOOL.

SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR
RESPONDENTS-APPELLANTS IROQUOIS CENTRAL SCHOOL DISTRICT, IROQUOIS
CENTRAL SCHOOL DISTRICT BOARD OF EDUCATION AND IROQUOIS CENTRAL HIGH
SCHOOL.

WEBSTER SZANYI LLP, BUFFALO (JEREMY A. COLBY OF COUNSEL), FOR
RESPONDENTS-APPELLANTS WEST SENECA SCHOOL DISTRICT, WEST SENECA SCHOOL
DISTRICT BOARD OF EDUCATION AND WEST SENECA EAST SENIOR HIGH SCHOOL.

LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL),
FOR CLAIMANT-RESPONDENT.


     Appeals from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered February 1, 2013. The order granted the
application of claimant for leave to serve a late notice of claim.

     It is hereby ORDERED that the order so appealed from is reversed
on the law without costs and the application is denied.

     Memorandum: We agree with respondents that Supreme Court abused
its discretion in granting claimant’s application seeking leave to
serve a late notice of claim pursuant to General Municipal Law § 50-e
(5). On February 4 and 5, 2011, claimant, then a 16-year-old student
at respondent West Seneca East Senior High School, participated in the
Section VI high school wrestling championship (tournament) held at
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                                                         CA 13-01241

respondent Starpoint High School in Lockport. It is undisputed that
one of the wrestlers at the tournament, from respondent Iroquois
Central High School, had a highly contagious virus. In September
2012, approximately five months after he reached the age of majority
and 19 months after the tournament, claimant sought leave to serve a
late notice of claim against respondents, alleging that he had
contracted herpes from the infected wrestler and that respondents were
negligent in, among other things, allowing the infected wrestler to
participate in the tournament and in failing to take reasonable steps
to avoid claimant’s injury.

     In seeking leave of the court to file a late notice of claim,
claimant offered no excuse, reasonable or otherwise, for failing to
serve a timely notice of claim. In support of his application,
however, claimant asserted that respondents had actual knowledge of
the facts underlying his claim because another student who allegedly
contracted herpes from the same wrestler at the tournament had served
a timely notice of claim against respondents Starpoint High School and
Iroquois Central High School. Claimant further asserted that
respondents had actual knowledge based on Health Advisory #279a,
issued by the Erie County Department of Health (DOH) on February 11,
2011 to all school districts in Erie and Niagara Counties. The
advisory stated that DOH was investigating “several cases of skin
infection in high school wrestlers” who had participated in the
tournament, and it also identified all schools that had participated
in the tournament. Finally, claimant contended that respondents had
suffered no prejudice from his failure to serve a timely notice of
claim. The court granted the application, and we now reverse.

     Where a claimant does not offer a reasonable excuse for failing
to serve a timely notice of claim, a court may grant leave to serve a
late notice of claim only if the respondent has actual knowledge of
the essential facts underlying the claim, there is no compelling
showing of prejudice to the respondent (see Matter of Hall v Madison-
Oneida County Bd. of Coop. Educ. Servs., 66 AD3d 1434, 1435), and the
claim does not “patently lack merit” (Matter of Hess v West Seneca
Cent. Sch. Dist., 15 NY3d 813, 814; see Matter of Catherine G. v
County of Essex, 3 NY3d 175, 179). Here, respondents asserted that,
until claimant made the instant application, they had no knowledge
that he had contracted herpes or otherwise had been injured at the
tournament. Although claimant offered no evidence to the contrary, he
essentially contended that respondents should have known of his injury
because another wrestler had filed a timely notice of claim regarding
an identical injury and because respondents had received Health
Advisory #279a.

     As we have repeatedly stated, actual knowledge of the essential
facts of a claim requires “[k]nowledge of the injuries or damages
claimed by a [claimant], rather than mere notice of the underlying
occurrence” (Santana v Western Regional Off-Track Betting Corp., 2
AD3d 1304, 1305, lv denied 2 NY3d 704 [internal quotation marks
omitted]; see Dalton v Akron Cent. Schools, 107 AD3d 1517, 1518).
Here, claimant’s proof in support of his application establishes, at
most, that respondents had constructive knowledge of his claim. In
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                                                         CA 13-01241

other words, there is nothing in the notice of claim filed by the
other wrestler who was infected at the tournament or in Health
Advisory #279a that gave respondents actual knowledge that claimant
was similarly injured.

     Thus, even assuming, arguendo, that respondents suffered no
prejudice from the delay and that the proposed claim against them does
not patently lack merit, we conclude that the court abused its
discretion in granting claimant’s application for leave to serve a
late notice of claim (see Palumbo v City of Buffalo, 1 AD3d 1032,
1033).

     All concur except FAHEY and WHALEN, JJ., who dissent and vote to
affirm in the following Memorandum: We respectfully dissent. In our
view, Supreme Court did not abuse its discretion in granting
claimant’s application for leave to serve a late notice of claim upon
respondents, and we therefore would affirm the order.

     “A notice of claim must be served within 90 days after the claim
accrues, although a court may grant leave extending that time,
provided that the application therefor is made before the expiration
of the statute of limitations period of one year and 90 days (see
General Municipal Law § 50-e [1] [a]; [5]). The decision whether to
grant such leave ‘compels consideration of all relevant facts and
circumstances,’ including the ‘nonexhaustive list of factors’ in
section 50-e (5) (Williams v Nassau County Med. Ctr., 6 NY3d 531,
539). The three main factors are ‘whether the claimant has shown a
reasonable excuse for the delay, whether the municipality 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 municipality’ (Matter of Friend v Town of W. Seneca, 71 AD3d 1406,
1407; see generally § 50-e [5]). ‘[T]he presence or absence of any
one of the numerous relevant factors the court must consider is not
determinative’ (Salvaggio v Western Regional Off-Track Betting Corp.,
203 AD2d 938, 938-939), and ‘[t]he court is vested with broad
discretion to grant or deny the application’ (Wetzel Servs. Corp. v
Town of Amherst, 207 AD2d 965, 965). Absent a ‘clear abuse’ of the
court’s broad discretion, ‘the determination of an application for
leave to serve a late notice of claim will not be disturbed’ (Matter
of Hubbard v County of Madison, 71 AD3d 1313, 1315 [internal quotation
marks omitted])” (Dalton v Akron Cent. Schs., 107 AD3d 1517, 1518;
see Education Law § 3813 [2-a]).

     Here, we conclude that the court properly weighed the relevant
factors and did not abuse its discretion in granting the application.
The record establishes that, in 2011, claimant, then a 16-year-old
student at respondent West Seneca East Senior High School,
participated in a wrestling tournament (tournament) held at respondent
Starpoint High School. The tournament involved wrestlers from many
high schools, including respondent Iroquois Central High School, and
one of the wrestlers from that high school had a highly contagious
virus that claimant allegedly contracted during a wrestling match with
that wrestler.
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                                                         CA 13-01241

     We agree with claimant that respondents had actual knowledge of
the facts surrounding the claim within 90 days of its accrual. In
particular, we note that, approximately one week after the tournament,
the Erie County Department of Health issued a health advisory to all
school districts in Erie and Niagara Counties regarding the
investigation of several cases of skin infection in high school
wrestlers who had participated in the tournament and that, according
to both the court and claimant’s attorney, the incident received media
coverage. More importantly, another wrestler allegedly infected at
the tournament served a timely notice of claim against respondents
Starpoint Central School District, Starpoint Central School District
Board of Education and Starpoint High School (collectively, Starpoint
respondents), and respondents Iroquois Central School District,
Iroquois Central School District Board of Education and Iroquois
Central High School (collectively, Iroquois respondents), and he
commenced a lawsuit following the filing of his notice of claim.

     We further agree with claimant that respondents would not be
substantially prejudiced if he were permitted to file a late notice of
claim. In our view, the opportunity to investigate provided by the
health advisory, and the investigation that such advisory should have
triggered, ameliorate the potential prejudice to the Starpoint and
Iroquois respondents. We also agree with claimant that, under the
circumstances of this case, respondents West Seneca School District,
West Seneca School District Board of Education and West Seneca East
Senior High School (collectively, West Seneca respondents) failed to
substantiate their assertions that they would be prejudiced if
claimant were permitted to file a late notice of claim (see Matter of
Gilbert v Eden Cent. Sch. Dist., 306 AD2d 925, 926-927).

     We reject the contention of the Starpoint respondents that the
court should have exercised its discretion to deny the application
because the claim is patently meritless. At a minimum, there is a
question of fact whether the Starpoint respondents exercised
sufficient control over the tournament and whether that control
created a duty to claimant upon which their legal responsibility could
be based (see Butler v Germantown Cent. Sch. Dist. Parent Teacher
Student Assn., 101 AD3d 1415, 1417; Garman v East Rochester Sch.
Dist., 46 AD3d 1354, 1355; Hochreiter v Diocese of Buffalo, 309 AD2d
1216, 1217; see also Basso v Miller, 40 NY2d 233, 241-242; cf. Farrell
v Hochhauser, 65 AD3d 663, 663-664). Finally, contrary to the
contentions of the Iroquois respondents and the West Seneca
respondents, we conclude that claimant has a plausible theory of
liability against them based on their alleged failure to supervise the
wrestlers during the tournament (see Hochreiter, 309 AD2d at 1217).




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
