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

1013
CA 15-01958
PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.


IN THE MATTER OF MALACHI FICEK,
CLAIMANT-RESPONDENT,

                    V                              MEMORANDUM AND ORDER

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.


     Appeals from an order of the Supreme Court, Erie County (John F.
O’Donnell, J.), entered August 6, 2015. 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
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.

     Memorandum: In a case very similar to another case brought
before us (Matter of Candino v Starpoint Cent. Sch. Dist., 115 AD3d
1170, affd 24 NY3d 925), 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 AD3d 138, 143; see
Education Law § 3813 [2]; General Municipal Law § 50-e [1] [a]).
Courts have broad discretion in determining whether to grant an
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                                                         CA 15-01958

application for leave to serve a late notice of claim (see Williams v
Nassau County Med. Ctr., 6 NY3d 531, 535; Palumbo v City of Buffalo, 1
AD3d 1032, 1033). “ ‘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 AD3d
1665, 1665; see Brown v City of Buffalo, 100 AD3d 1439, 1440-1441; 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 AD3d 995, 996; see Matter of Saponara v Lakeland
Cent. Sch. Dist., 138 AD3d 870, 871; Felice, 50 AD3d at 150).
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 AD3d 1268, 1269). 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 AD3d 958, 959; see
generally Mikulski v Battaglia, 112 AD3d 1355, 1356). 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
AD3d 1389, 1389; see Terrigino v Village of Brockport, 88 AD3d 1288,
1288; Matter of Gilbert v Eden Cent. Sch. Dist., 306 AD2d 925, 926).

     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 NY3d at 537; cf. Diez, 140 AD3d
at 1666; Le Mieux, 1 AD3d at 996). 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 AD3d
                                 -3-                          1013
                                                         CA 15-01958

1303, 1304), and that the claim “patently lacks merit” (Hess v West
Seneca Cent. Sch. Dist., 15 NY3d 813, 814; see Matter of Catherine G.
v County of Essex, 3 NY3d 175, 179).

     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 AD3d at 1171-1172). 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 AD3d 1304, 1304-1305; see Williams, 6 NY3d at 535;
Matter of Turlington v Brockport Cent. Sch. Dist., ___ AD3d ___, ___
[Oct. 7, 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 AD3d at
1172), and we therefore modify the order accordingly.




Entered:   November 10, 2016                   Frances E. Cafarell
                                               Clerk of the Court
