Matter of Joseph D. Candino, Jr., Appellant,v.Starpoint Central School District, et al., Respondents.

Brief

N.Y.Aug 28, 2014

21 1 West Jefferson Street Syracuse, NY 13202 Sugarm;A FIRMLLP__ www.suyarmanlawcom Phone: (315) 474-2943 Fax: (315) 474-0235 June 25, 2014 VIA OVERNIGHT DELIVERY New York State Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Candino v. Iroquois Central School District, et al. APL-2014-00097 Your Honors: This submission is respectfully made on behalf of respondents-respondents Iroquois Central School District, Iroquois Central School District Board of Education, and Iroquois Central High School (collectively "Iroquois"). Claimant-appellant Joseph D. Candino, Jr. ("claimant") has appealed to this Court from a Memorandum and Order of the Appellate Division, Fourth Department, which held that the Supreme Court, Erie County (Hon. John F. O'Donnell) abused its discretion in granting the claimant's application for leave to serve a late notice of claim against Iroquois and co-respondents/co-respondents Starpoint Central School District, Starpoint Central School District Board of Education, and Starpoint High School (collectively Printed an 100% Recycled Paper "Starpoint"), and West Seneca School District, West Seneca School District Board of Education, and West Seneca East Senior High School (collectively "West Seneca") (all collectively "respondents"). The Appellate Division reversed the Supreme Court's Order and denied the claimant's application for leave to serve a late notice of claim. For the reasons set forth in Iroquois's briefs to the Appellate Division, in the Appellate Division's Memorandum and Order, and below, the Appellate Division's Memorandum and Order was correct and should be affirmed. COUNTER-STATEMENT OF FACTS The claimant alleges that he contracted h rpes gladiatorum on February 5, 2011 when, as a student at he participated in a wrestling tournament held at Starpoint High School, and engaged in a wrestling match with (R.36).1 The claimant did not file an application to serve a late notice of claim against the respondents until September 17,2012, more than nineteen months after this wrestling tournament (R. 20-37). In his application for leave to serve a late notice of claim, the claimant alleged that, at some unspecified time after he wrestled with he "found out" References to (R. ) are references to the Record on Appeal before the Appellate Division. 2 in some unspecified way that when he wrestled with "had a highly contagious communicable disease and was infected with herpes gladiatorum" (R. 36). The claimant alleged that as a result of his contact with he became infected with herpes gladiatorum (R. 36). The claimant did not, however, offer any medical evidence that he currently has, or ever has had, herpes gladiatorum, and he did not offer any evidence of when this condition was allegedly diagnosed. In the proposed notice of claim he submitted in support of his application, the claimant alleged that the respondents were negligent in, among other things, allowing to participate in the tournament "when he had open wounds, blisters andlor rashes on his body, face and head," and failing to ensure that all participants in the tournament "were properly and thoroughly examined by a qualified health care provider prior to being allowed to come into contact with other wrestlers" (R. 28-29) In support of his application, the claimant submitted a copy of Health Advisory 9279a, which was issued to high school superintendents by the Erie County Department of Health on or about February 11, 2011 ("Health Advisory") (R. 31-34). According to the Health Advisory, the Erie County and Niagara County Departments of Health, in cooperation with the New York State Department of Health, were investigating several cases of skin infection in high school wrestlers who had participated in the tournament at Starpoint High School on February 4 and 5, 2011 3 (R 31). Herpes gladiatorum was listed on the Health Advisory as one of three skin infections that are commonly diagnosed among athletes (R. 31-33). The Health Advisory did not identify as a student who had allegedly transmitted a skin infection, and it certainly did not suggest that the claimant was one of the students who were allegedly infected at the tournament (R. 31-33). Also in support of his application, the claimant argued that another student, claimed to have been infected with herpes gladiatorum by at the same wrestling tournament (R. 25). The claimant asserted that had previously served a notice of claim on Iroquois and Starpoint, that a 50-h hearing had been held, and that the matter had been placed into suit (R. 25). The claimant did not, however, submit a copy of notice of claim in support of his application. Iroquois opposed the claimant's application, arguing that the claimant had not established that Iroquois had actual knowledge of the essential facts constituting his claim within ninety days of February 5, 2011, and that the claimant had offered no reasonable excuse for his failure to serve a timely notice of claim (R. 57-58). Iroquois also argued that the claimant's purported claim was without merit because, assuming arguendo that the claimant had actually contracted herpes gladiatorum, his claim was barred by express assumption of the risk (R. 59). In addition, Iroquois 4 submitted proof that had obtained medical clearance to wrestle in the tournament from his primary physician and had provided proof of such clearance to Iroquois, and that had also been cleared to wrestle at the tournament itself by a physician retained by Section VI of the New York State Public High School Athletic Association ("Section VI") (R. 59, 63-65). In an Order filed with the Erie County Clerk’s Office on February 1, 2013, the Supreme Court granted the claimant’s application for leave to serve a late notice of claim against the respondents (R. 15-19). The respondents appealed to the Appellate Division, and a three-Justice majority held that the Supreme Court abused its discretion in granting the claimant’s application, reversed the Supreme Court’s Order, and denied the claimant’s application. See Candino v. Starpoint Cent. School Dist., 115 AD3d 1170 (4th Dept. 2014). The claimant appealed to this Court as of right pursuant to CPLR € 5601(a). STANDARD OF REVIEW This Court will only reverse an Appellate Division’s decision to deny a claimant’s application for leave to serve a late notice of claim if the Appellate Division abused its discretion as a matter of law. See Williams v. Nassau County Med. Ctr., 6 NY3d 531 (2007); Chattergoon v. City of New York Hous. Autk, 78 NY2d 958 (1991). So long as the Appellate Division "’acted within the parameters 5 of reason," this Court has "consistently affirmed" the Appellate Divisions’ exercises of discretion, regardless of whether that discretion was invoked to grant or deny leave to serve a late notice of claim. See Williams, supra t 539 (quoting Murray v. City of New York, 30 NY2d 113, 119 (1972)). LEGAL ARGUMENT POINT I THE APPELLATE DIVISION DID NOT ERR IN DENYING THE CLAIMANT'S APPLICATION FOR LEAVE TO SERVE A LATE NOTICE OF CLAIM Courts consider the following factors in determining whether to grant a claimant’s application for leave to serve a late notice of claim against a school district: (1) whether the claimant has offered a reasonable excuse for his delay; (2) whether the school district or its agents acquired actual knowledge of the essential facts constituting the claim within ninety days after the claim arose, or within a reasonable time thereafter; and (3) whether the delay in serving the late notice of claim substantially prejudiced the school district in maintaining its defense on the merits. See N.Y. General Municipal Law € 50-e(5); Education Law € 3813(2-a); Friend v. Town of West Seneca, 71 AD3d 1406 (4th Dept. 2010). A court must deny an application for leave to serve a late notice of claim when the claimant’s proposed claim is patently lacking in merit. See Hess v West Seneca Cent- School Dist., 15 NY3d 813 (2010). In this case, the Appellate Division did not abuse its discretion in denying the claimant's application for leave to serve a late notice of claim. As the Appellate Division correctly concluded, the claimant did not offer a reasonable excuse for his nineteen-month delay, and the claimant failed to establish that Iroquois had timely actual knowledge of the essential facts constituting his claim. In addition, although the Appellate Division majority did not address prejudice or merit because it was unnecessary to do so, it is respectfully submitted that Iroquois would be substantially prejudiced if the claimant were permitted to serve a late notice of claim, and that the claimant's claim is patently meritless. A. The claimant did not offer a reasonable excuse for his excessive nineteen-month delay. There can be no question in this case that the claimant did not have an excuse, let alone a reasonable one, for his more than nineteen-month delay in seeking to serve a late notice of claim. In support of his application, the claimant simply argued that at the time of the wrestling match, he was under the age of 18 and "unable" to serve a notice of claim on his own behalf, and that after he turned 18 on April 12, 2012, he was unaware of the notice of claim requirement (R. 26, 36). A claimant's infancy, however, does not, standing alone, require a court to grant an application for leave to serve a late notice of claim. See Rennell v. North Junior High School, 12 AD3d 518 (2d Dept. 2004). Further, the claimant in this case made no attempt to establish a nexus between his infancy and his failure to serve a timely notice of claim. This lack of nexus, although not fatal to his application, makes his nineteen-month delay less excusable. See Williams v. Nassau County Med. Ctr., 6 NY3d 531 (2006). As for the delay after the claimant turned 18, it is well- established that ignorance of the notice of claim requirement is not a reasonable excuse for failing to serve a notice of claim, even when the claimant is an infant. See Doyle v. Elwood Union Free School Dist., 39 AD3d 544 (2d Dept. 2007). In his brief to the Appellate Division, the claimant essentially conceded that he had no reasonable excuse, and on appeal to this Court, the claimant has not challenged the Appellate Division's conclusion that he "offered no excuse, reasonable or otherwise, for failing to serve a timely notice of claim." See Candino v. Starpoint Cent. School Dist., 115 AD3d 1170, 1171 (4th Dept. 2014). 8 U! The claimant failed to meet his burden of establishing that Iroquois had the necessary knowledge under General Municipal Law € 50-e. When, as in this case, the claimant has not offered a reasonable excuse for his delay, a court may only grant leave to serve a late notice of claim if the municipality had timely actual knowledge of the essential facts constituting the claim and there is no compelling showing of prejudice to the municipality. See Hall v. Madison-Oneida County Bd. of Cooperative Educ. Servs., 66 AD3d 1434 (4th Dept. 2009); Vasquez v. City of Newburgh, 35 AD3d 621 (2d Dept. 2006); Caminero v. New York City Health & Hosps. Corp., 21 AD3d 330 (1st Dept. 2005). The Appellate Division properly applied this rule in this case, and held that even assuming argue do that Iroquois suffered no prejudice from the claimant’s delay, and even assuming arguendo that the claimant’s claim was not patently meritless, the Supreme Court abused its discretion in granting the claimant’s application because Iroquois lacked the necessary knowledge under General Municipal Law € 50-c(5). In his submission to this Court, the claimant argues that when Iroquois received the Health Advisory, Iroquois had the opportunity and the incentive to conduct an investigation, which is the "only legitimate purpose" of the notice of claim requirement, and that if it had done an investigation, Iroquois could have identified Ze as the student who allegedly transmitted h rpes gladiatorum, and that Iroquois could have identified the claimant as one of opponents at the wrestling tournament. See Claimant’s Submission, pp. 17-21. The claimant further argues that notice of claim, coupled with the Health Advisory, apprised Iroquois and Starpoint of the essential facts constituting the claimant’s claim. See Claimant’s Submission, pp. 19-2 1. The claimant’s argument, however, is flawed and inconsistent with the plan language of General Municipal Law € 50- e(5) and the cases interpreting it. Pursuant to General Municipal Law € 50-e(5), when a claimant makes an application for leave to serve a late notice of claim, the court must inquire whether the municipality had "actual knowledge of the essential facts constituting the claim" within ninety days of the incident, or within a reasonable time thereafter. The claimant bears the burden of establishing that the municipality had the necessary knowledge. See Dalton v. Akron Cent. Schools, 107 AD3d 1517 (4th Dept. 2013), aff'd 22 NY3d 1000 (2013). This knowledge factor requires more than mere knowledge of an underlying occurrence. See Santana v. Western Regional Off Track Betting Corp., 2 AD3 d 1304 (4th Dept. 2003); Lemma v. Off Track B etting Corp., 272 AD2d 669 (4th Dept. 2000). The municipality must have had actual knowledge of the specific claim, not simply a "general knowledge that a wrong has been 10 committed." See Erie! v. Town of Amherst, 267 AD2d 1024, 1024 (4th Dept. 1999) (quoting Sica v. Board of Educ. of the City of New York, 226 AD2d 542, 543 (2d Dept. 1996)); see also Bridgeview at Babylon Cove Homeowners Assoc., Inc. v. Incorporated Village of Babylon, 41 AD3d 404 (2d Dept. 2007). As the Fourth Department stated in Dalton, supra, which was subsequently affirmed by this Court, the municipality must have had actual knowledge of both the underlying occurrence and the claimant's injuries or damages.2 Contrary to the claimant's contention, the Appellate Division majority correctly concluded the necessary knowledge was lacking in this case. As the Appellate Division correctly determined, there was nothing in either the Health Advisory or in the notice of claim to give Iroquois actual knowledge that this particular claimant allegedly suffered an injury at the wrestling tournament. The Health Advisory and the notice of claim gave Iroquois, at most, constructive knowledge of the claimant's claim, which the Fourth Department concluded was 2 The claimant argues that the Appellate Division erred as a matter of law by requiring proof of "knowledge of the injuries or damages claimed by a claimant." In support of this argument, the claimant cites to this Court's decision in Williams, and argues that proof of a "potential injury" is sufficient. See Claimant's Submission, pp. 21-22. The Appellate Division, however, cited its prior decision i Dalton for this requirement, and Dalton has been affirmed by this Court. Further, even if the claimant were correct, none of the evidence offered by the claimant suggests, in any way, that the respondents had actual knowledge of even a "potential" injury to the claimant before he made this application for leave to serve a late notice of claim. 11 insufficient to satisfy the knowledge requirement of General Municipal Law € 50- e(5), the plain text of which clearly requires "actual knowledge." At most, the Health Advisory made Iroquois generally aware that the Erie and Niagara County Departments of Health were investigating cases of skin infection in wrestlers who had participated in the wrestling tournament. The Health Advisory did not, however, suggest that Iroquois was responsible for the skin infections or that any of the students involved were Iroquois students. It did not specifically identify s the student who allegedly transmitted herpes gladialorum, and it certainly did not suggest that the claimant himself was one of the students who were allegedly infected at the tournament. The claimant is, therefore, now left to argue, after-the-fact, that Iroquois should have conducted an investigation, and he is left to speculate that if such an investigation had been conducted, Iroquois would not only have identified as the student who allegedly transmitted herpes gladiatorum, but that it would also have identified the claimant as one of the students who was allegedly infected. Such speculation does not amount to the "actual knowledge" required by the General Municipal Law. As for notice of claim, the claimant did not submit a copy of this notice of claim in support of his application, even though he had the burden to prove knowledge and could certainly have obtained a copy of it through a FOIL 12 request. Since this notice of claim is not part of the record before this Court, the claimant cannot use that notice of claim to make an informed argument regarding what Iroquois knew, or did not know, within the statutory period. In any case, the claimant has never argued that notice of claim actually identified the claimant in particular as someone who had allegedly contracted herpes gladiatorum from during the February 2011 wrestling tournament3 Further, if this Court were to adopt the claimant’s analysis, it would have the effect of elevating prejudice over all of the other factors in General Municipal Law € 50-e(5) The claimant appears to be arguing that the knowledge factor is only relevant to the extent knowledge bears on whether the municipality had a motive and an opportunity to conduct a timely investigation, and therefore, whether the municipality would be substantially prejudiced by service of a late notice of claim. See Claimant’s Submission, pp. 15-21 The claimant contends that the Appellate Although the claimant does not reference it in his submission to this Court, the dissenting Appellate Division justices referred in their opinion to the "media coverage" allegedly received by the skirt infections following the February 2011 wrestling tournament. See Candino, supra at 1173. The claimant, however, did not provide any examples of this alleged media coverage in support of his application, even though it was his burden to prove that Iroquois had the necessary knowledge. See Dalton, supra In addition, the claimant did not offer any proof, or even suggest in his application, that the alleged media coverage related to him specifically. Based on this absence of proof, it can be inferred that if there was media coverage at all, it was related to the incidence of skin infections in wrestlers who had participated in the tournament, not to the claimant in particular, or to his claimed injuries. Therefore, assuming there was media coverage at all, it did not give Iroquois actual knowledge of the claimant’s alleged injuries. 13 Division erred when it treated knowledge as "an essential requirement" in the late notice of claim analysis, and that knowledge cannot be "divorced from the fundamental question" of prejudice. See Claimant's Submission, p. 23. The claimant's analysis is flawed and incorrect. The courts of this State have expressly stated that a lack of prejudice is not dispositive in a late notice of claim analysis. See Rusiecki v. C/arkstown Cent. School Dist., 227 AD2d 493 (2d Dept. 1996); Downey v. Macedon Ctr. Volunteer Fire Dept., 179 AD2d 999 (4th Dept. 1992); Stenowich v. Colonie Indus. Dev. Agency, 151 AD2d 894 (3d Dept. 1989). The knowledge factor, on the other hand, is one that, although not dispositive, is entitled to "great weight." See Wright v. City of New York, 99 AD3d 717 (2d Dept. 2012); Plaza v. New York Health & Hosps. Corp., 97 AD3d 466 (1st Dept. 2012); Hilton v. Town of Richland, 216 AD2d 921 (4th Dept. 1995); Stenowich, supra. In fact, if a claimant fails to meet his burden of establishing knowledge, it is an abuse of discretion to grant the claimant's application even if the municipality will not suffer substantial prejudice. See Heffelfinger v. Albany Intl. Airport, 43 AD3d 537 (3d Dept. 2007); see also Brown v. City ofBuffalo, 100 AD3d 1439 (4th Dept. 2012); Carpenter v. City ofNew York, 30 AD3d 594 (2d Dept. 2006). In addition, it is well- established that, in cases such as this, where the claimant does not have a reasonable excuse for his delay, a court may only grant leave where the municipality had the necessary actual knowledge and there is no compelling showing of prejudice. See Hall, supra; Vasques, supra; Cam inero, supra. If prejudice were the only relevant consideration, there would be no need to express this rule in the conjunctive. It is also worth noting that the claimant's analysis could have the practical, and surely unintended, effect of imposing the ultimate burden of proof in late notice of claim cases on municipalities in cases brought in the Fourth Department, where the burden to prove prejudice has traditionally been placed upon the municipality. See McBee v. County of Onondaga, 34 AD3d 1360 (4th Dept. 2006). The analysis is done differently in the First, Second, and Third Departments, where the courts impose the burden of establishing a lack of prejudice on the claimant. See Torres v. Tuckahoe Union Free School Dist., 94 AD3d 770 (2d Dept. 2012); Kelley v. New York City Health & Hosps. Corp., 76 AD3 d 824 (1St Dept. 2010); Hubbard v. County of Madison, 71 AD3d 1313 (3d Dept. 2010). In the Second Department, the claimant must establish that the municipality had proper and timely actual knowledge of the essential facts constituting the claim in order to make an initial showing of lack of prejudice, which shifts the burden to the municipality to make a showing of prejudice. See Fennel! v. City School Dist. of City of Long Beach, 2014 NY App Div LEXIS 4106, 2014 NY Slip Op 4192 (2d Dept. 2014). ' For the Court's convenience, a copy of this opinion is attached hereto. 15 Because the Appellate Division concluded that Iroquois lacked the necessary knowledge, there was no need for the Appellate Division to analyze the prejudice factor.5 Nonetheless, Iroquois respectfully submits that it will suffer significant prejudice if the claimant is permitted to serve a late notice of claim. Until it received the instant application, Iroquois had no knowledge that the claimant claimed to have contracted herpes gladiatorum at the February 2011 wrestling meet, and therefore had no reason to conduct any investigation into whether the claimant actually contracted it during the tournament and, if so, how. See Ryder v. Garden City School Dist., 277 AD2d 388 (2d Dept. 2000). In support of his application, the claimant did not offer any proof regarding Iroquois’s ability to investigate his claims, such as which witnesses would possess relevant information and whether they were still available. There was, therefore, no support in the record for the Supreme Court’s conclusion that there were only a small number of witnesses, and that most, if not all, of the witnesses were still associated with the respondents. Iroquois was also deprived of an opportunity to have a timely physical examination conducted of the claimant, which is particularly relevant in this Contrary to the claimant’s contention, the Appellate Division did not abuse its discretion by failing to consider any of the factors in General Municipal Law € 50-e(5). See Claimant’s Submission, p. 23. Because the claimant failed to prove reasonable excuse and actual knowledge, there was no need for the Appellate Division to analyze prejudice. 16 case, where the claimant has not offered any medical proof regarding his alleged diagnosis or when it was allegedly made. S e Santana, supra; Lemma, supra. The notice of claim served by certainly did not negate this prejudice, since Iroquois did not learn any medical facts about the claimant through the matter. C. The claimant's claim is patently meritless. Again, because the Appellate Division concluded that Iroquois lacked the necessary knowledge, there was no need for the Appellate Division to analyze whether the claimant's claim is patently meritless. Nonetheless, Iroquois respectfully submits that this was another basis for denying the claimant's application. An application for leave to serve a late notice of claim must be denied where the claimant's proposed claim is patently meritless. See Hess v. West Seneca Cent. School Dist., 15 NY3d 813 (2010); Catherine G. v. County of Essex, 3 NY3d 175 (2004). Although a court should not "delve into the merits of an action" when it determines an application for leave to serve a late notice of claim, a claimant's proposed claim cannot be wholly lacking in merit. See Katz v. Town ofBedford, 192 AD2d 707, 708 (2d Dept. 1993). As one court has noted, if a claimant's "chances of demonstrating a valid claim appear nonexistent," it "would make little sense" to grant 17 his application for leave to serve a late notice of claim. See Groeli v. City of New York, 135 Misc2d 823, 827 (New York County Supreme Court 1987). In this case, the claimant offered only conclusory and speculative allegations to support his claim that he contracted herpes giadiatorum from The claimant did not offer any medical evidence that he currently has, or ever has had, herpes gladiatorum, or, if he has this condition, when it was allegedly diagnosed. Further, the claimant did not offer any proof to link his alleged condition to any action or inaction by Iroquois. Instead, the claimant simply alleged that on February 5, 2011, he wrestled in a match against The claimant then alleged that, at some unspecified time after his wrestling match with , he "found out" in some unspecified way that iad herpes giadiatorum (R. 36). It' s respectfully submitted that these allegations are insufficient to render the proposed claim more than "patently meritless." In P.A. v. State ofNew York, 277 AD2d 671 (3d Dept. 2000), a Court of Claims case that was appealed to the Third Department, the claimant was an inmate who claimed that he contracted HTV as a result of the State's negligence in putting him in a cell with an inmate who was infected with HIV. The claimant alleged that he became infected when he used his celimate's razor. More than a year after allegedly 19 learning that he had contracted the virus, the claimant sought permission to file a late claim, which the Court of Claims denied. In its decision affirming the denial of the claimant’s application, the Third Department noted that the "claimant failed to offer any expert medical opinion evidence to support his assertion that he contracted the virus from having switched razors with his unnamed ceilmate." P.A., supra at 671. Although the standard for merit is, admittedly, not as stringent on a motion for leave to serve a late notice of claim pursuant to General Municipal Law € 50-e(5), as it is on a motion for leave to file a late claim pursuant to Court of Claims Act € 10(6), P.A. is instructive in this case. In the absence of any medical proof that the claimant actually has herpes gladiatorum and when it was allegedly diagnosed, and in the absence of any proof linking his alleged condition to the claimant in this case has not even made a basic showing that his proposed claims against Iroquois have merit. Further, in opposition to the claimant’s application, Iroquois established that had actually received medical clearance from his primary care physician to wrestle in the tournament only two days before, on February 3,201 1, and that had provided proof of that clearance to Iroquois (R. 59, 63-65). In addition, the respondents established in opposition to the claimant’s application that was cleared to wrestle at the tournament itself by a physician retained by 19 Section VI, who screened athletes to ensure that they were medically-fit to participate in the tournament, including by performing a "skin check" for contagious medical conditions (R. 50-51, 59, 98-99). It is also respectfully submitted that contracting a communicable disease, including herpes gladiatorumn, is an inherent danger of wrestling and that, as such, the claimant's proposed claim against Iroquois is barred by the primary assumption of the risk doctrine. See Farrell v. Hochhauser, 65 AD3d 663 (2d Dept. 2009); see also Palozzi v. Priest, 280 AD2d 986 (4th Dept. 2001). The claimant's contention that the existence of the Health Advisory demonstrates that herpes gladiatorum is not an inherent danger in the sport of wrestling must be rejected. S e Claimant's Submision, pp. 25-26. The Health Advisory itself expressly refers to herpes gladiatorum as a "[c]ommon skin infection[] thataffect[s] wrestlers and other athletes with skin to skin contact" (R. 33). The case the claimant relies upon, Owen v R.JS. Safety Equipment, Inc., 79 NY2d 967 (1992), is completely distinguishable. Whereas the Health Advisory noted that herpes gladiatorum is common in the sport of wrestling, the racetrack in Owen involved a condition that was "unique and created a dangerous condition over and above the usual dangers that are inherent in the sport of auto racing." Supra at 970. Finally, the assertion in the claimant’s application that proceeding against the respondents "is the only means available to [him] by which to seek full redress for the injuries sustained," is incorrect (R. 26). The claimant could attempt to seek redress from the physicians who examined him or from Section VI. He could also seek redress from , if did in fact transmit herpes gladiatorum to the claimant. See Silver v. Levittown Union Free School Dist., 180 Misc2d 1015 (Nassau County Supreme Court 1999). At the time the claimant made the instant application, the statute of limitations had not run on any of these potential claims. Therefore, the claimant’s proposed claims against Iroquois are patently meritless, and his application for leave to serve a late notice of claim should have been denied on that basis as well. POINT II IROQUOIS RESERVES ALL ARGUMENTS MADE IN ITS BRIEFS TO THE APPELLATE DIVISION Pursuant to 22 NYCRR € 500.11(f), Iroquois hereby reserves all arguments made in its appellant and reply briefs to the Appellate Division to the extent those arguments are not addressed above. 21 CONCLUSION It is respectfully submitted that the Appellate Division did not abuse its discretion as a matter of law when it reversed the Supreme Court's Order and denied the claimant's application for leave to serve a late notice of claim against Iroquois: The Appellate Division's Memorandum and Order should be affirmed. Respectfully submitted, JatW. Klu acs ik Direct Dial No.: (315) 362-8965 jklucsiksugarmanlaw.com JWK cc: James T. Scinie, Esq. Lipsitz, Green, Scirne, Cambria., LLP 42 Delaware Avenue - Suite 120 Buffalo, New York 14202 Louis B. Dingeldey Jr., Esq. Baxter Smith & Shapiro, P.0 182 Dwyer Street West Seneca, New York 14224 Jeremy A. Colby, Esq. Webster Szanyi, LLP 1400 Liberty Building Buffalo, New York 14202 22 JW LexisNexis & 0 Analysis As of Jun 25, 2014 * I] In the Matter of James Fennell, respondent, v City School District of City of Long Beach, appellant. (Index No. 9983/12) 2013-01392 SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT 2014 N. Y. App. Div. LEXIS 4106; 2014 NY Slip Op 4192 June 11, 2014, Decided NOTICE: JP., DICKERSON, CHAMBERS, HINDS-RADIX and MALTESE, JJ., concur. THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF OPINION THE FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE PUBLICATION IN THE DECISION & ORDER OFFICIAL REPORTS. Page 1 SUBSEQUENT HISTORY: Subsequent appeal at Matter of Matter of Fennell v. City School Dist of City of Long Beach, 2014 N. Y. App. Div. LEXIS 4205 (N. Y. App. Div. 2dDep’t, June 11, 2014) COUNSEL: [*)] Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, NY. (Gregory A. Cascino of counsel), for appellant. Seiden & Kaufman, Carle Place, N.Y. (Steven J. Seiden of counsel), for respondent. JUDGES: REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, SYLVIA 0. HINDS-RADIX, JOSEPH J. MALTESE, JJ. RIVERA, In a proceeding pursuant to General Municipal Law € 50-e(5) for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served, the City School District of the City of Long Beach appeals from an order of the Supreme Court, Nassau County (Bruno, J.), entered November 28, 2012, which granted the petition. ORDERED that the order is affirmed, with costs. In determining whether to grant an application for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served, the court must consider whether (1) the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within 90 days after 2014 N.Y. App. Div. LEXIS 4106, *1; 2014 NY Slip Op 4192, '1 Page 2 the claim arose or a reasonable time thereafter, (2) the [*2] petitioner demonstrated a reasonable excuse for the failure to serve a timely notice of claim and for the delay in filing the petition, and (3) the delay would substantially prejudice the public corporation in its defense on the merits (see General Municipal Law € 50-e[5]; Matter of Hampson v Conneiquot Cent. School Dist., 114 AD3d 790, 980 N. YS.2d 132; Plait v New York City Health & Hasps. Corp., 105 AD3d 1026, 1027, 964 N. YS.2d 223; Matter of Bell v City of New York, 100 AD3d 990, 954 N. YS-2d 229). Here, the City School District of the City of Long Beach (hereinafter the District) acquired actual knowledge of the essential facts constituting the claim within 90 days after the claim arose. An accident/incident report and a written statement were prepared on the date of the accident by the District's security officer, and an OSHA form reporting the petitioner's injury was prepared two days after the accident. These documents, which were admitted to have been filed with the District, its insurance carrier, and its attorneys, described the time and date of the accident, the petitioners injury, and how the accident occurred, indicated that the petitioner was transported to the hospital, and provided actual knowledge of the essential facts [*3] constituting the petitioner's claim, inter alia, that the District had violated Labor Law € 240(l) (see Klein v City of New York, 89 NY2Q’ 833, 675 N.E.2d 458, 652 N.YS.2d 723; Gibbs v City of New York, 22AD3d 717, 719, 804 N.YS.2d 393; Mailer of Farrell v City of New York, 191 AD2d 698, 595 N. YS.2d 531; Matter of Andrews v New York City Hous. Auth., 190 AD2d 732, 593 N.YS.2d 324). Since the District acquired timely knowledge of the essential facts constituting the petitioner's claim, the petitioner met his initial burden of showing a lack of prejudice (see Matter of Viola v Ronkonkoma Middle Sch., 107 [**2] AD3d 1009, 1010, 968 N. Y.S.2d 876; Matter of Shapiro v County of Nassau, 5 AD3d 690, 691, 774 N. YS.2d 752; Rosenblatt v City of New York, 160 AD2d 927, 928, 554 N.Y.S.2d 800). The District's conclusory assertions of prejudice, based solely on the petitioner's six-week delay in serving the notice of claim, were insufficient to rebut the petitioner's showing (see Matter of Viola v Ronkonkoma Middle Sch., 107 AD3d at 1010; Matter of Rodriguez v Woodhull Sch., 105 AD3d 1050, 963 N. Y.S.2d 724; Matter of Joy v County of Suffolk, 89 AD3d 1025, 1026, 933 N.YS.2d369). While the petitioner did not demonstrate a reasonable excuse for the failure to serve a timely notice of claim and for the further delay in commencing this proceeding (see Matter of Hampson v Connetquot Cent. School Dist., 114 AD3d at 791; [*4] Matter of Ryan v New York City Tr. Auth., 110 AD3d 902, 903, 973 N. YS.2d 312; Casias City of New York, 39 AD3d 681, 683, 833 N.YS.2d 662), the absence of a reasonable excuse is not fatal to a petition where, as here, there was actual notice and an bsence of prejudice (see Matter of Viola v Ronkonkoma Middle Sch., 107 AD3d at 1010; Matter of Rodriguez v Woodhull Sch., 105 AD3d at 1051; Matter of McLeod p City of New York, 105 AD3d 744, 746, 962 N. YS.2d 641). Accordingly, the Supreme Court properly granted the petition for leave to serve a late notice of claim or to deem a late notice of claim to have been timely served. RIVERA, J.P., DICKERSON, CHAMBERS, HINDS-RADIX and MALTESE, ii., concur.