Matter of Joseph D. Candino, Jr., Appellant,v.Starpoint Central School District, et al., Respondents.BriefN.Y.August 28, 2014 Jeremy A. Colby Partner Admitted in NY and MA 1400 Liberty Building ● Buffalo, New York 14202 Tel: (716) 842-2800 ● Fax: (716) 845-6709 jcolby@websterszanyi.com ATTORNEYS REDACTED July 2, 2014 VIA FEDERAL EXPRESS New York State Court of Appeals Court of Appeals Hall 20 Eagle Street Albany, New York 12207 Re: Candino v. West Seneca School District, et al. APL-2014-00097 Your Honors: The Fourth Department did not abuse it discretion in denying Joseph Candino’s application for leave to serve a late notice of claim. PRELIMINARY STATEMENT This letter-brief is submitted by Respondents West Seneca School District, West Seneca School District Board of Education, and West Seneca East Senior High School (collectively referred to as “West Seneca”). West Seneca seeks affirmance of the Fourth Department’s decision denying Joseph Candino leave to serve a late notice of claim. Candino is a former West Seneca student who allegedly contracted herpes while participating in a wrestling tournament hosted by the Starpoint Central 2 School District (“Starpoint”) at Starpoint High School on February 5, 2011. Candino wrestled against an infected student, B.V., from Iroquois High School (“Iroquois”) who had been medically cleared to wrestle by B.V.’s personal physician and a physician retained by the NYSPHSAA. Those physicians and the NYSPHSAA are defendants in the action that remains pending below. This appeal pertains to Candino’s attempt to serve a late notice of claim on Starpoint, Iroquois, and his home district, West Seneca. Candino argues that actual notice was created by (1) an all schools advisory that informed districts of the herpes outbreak, but which did not identify any infected students and which did not identify any district purportedly responsible for the outbreak; and (2) a notice of claim served by a Williamsville student, S.B., who wrestled B.V. and who asserted a claim against Starpoint and Iroquois (but not West Seneca or S.B.’s home district). The issue on appeal is simple: did the Fourth Department abuse its discretion in denying Candino leave to serve a late notice of claim where West Seneca’s only possible basis for actual notice was an all schools advisory that did not reference Candino or anything that West Seneca purportedly did wrong? West Seneca’s lack of notice is exacerbated by the fact that Candino waited 19 months to seek leave, a delay for which he admittedly offers no explanation. The Fourth Department noted that Candino “offered no excuse, reasonable or otherwise, for failing to serve a timely notice of claim.” (M&O, at 2). The court 3 held that it was an abuse of discretion to grant Candino leave to serve the notice of claim because “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, and the claim does not ‘patently lack merit.’” Id. (citations omitted). The court found that Candino offered no evidence of actual knowledge, instead he argued that West Seneca “should have known of his injury because another wrestler had filed a timely notice of claim regarding an identical injury because respondents received Health Advisory #279a.” Id. The Fourth Department was correct in finding that these circumstances could, “at most,” show constructive knowledge of the claim. Id. Nothing in the notice of claim filed by S.B. -- which was not even served on West Seneca – would have given it actual knowledge that Candino “was similarly injured.” Id. at 3. Candino concedes that, in order to prevail, he must show that the Fourth Department abused its discretion. Pl.’s Br., at 2-3. JURISDICTIONAL STATEMENT This Court has jurisdiction over this appeal because two Justices of the Appellate Division dissented on points of law. Candino appealed as of right and this Court is authorized to adjudicate this matter pursuant to CPLR § 5601(a). 4 SUMMARY OF THE ARGUMENTS The Fourth Department correctly held that it was an abuse of discretion to grant Candino’s application for leave to serve a late notice claim. First, West Seneca lacked actual knowledge of the claim against it until Candino’s motion 19 months later. Although West Seneca received an “all schools” advisory from public health officials concerning a herpes outbreak at a wrestling tournament, West Seneca had no inkling that Candino claimed that it was responsible in some way for his exposure to herpes. West Seneca never had any reason to believe that anyone would seek to hold it liable for herpes exposure at the tournament – and thus had no reason to investigate the herpes outbreak beyond taking preventive measures (i.e., cleaning mats etc.). Second, Candino failed to explain the 19 month delay beyond stating that he turned 18 years of age on April 8, 2012 and that he did not know about the notice of claim requirement until so informed by his attorney. Candino proffers no reasonable excuse for his delay, and fails to supply any nexus between his infancy and his purported inability to properly and timely serve a notice of claim. Nor does he explain why he waited five months after he turned 18 before filing a motion for leave to serve a late notice of claim. Third, West Seneca would be substantially prejudiced by Candino’s late notice of claim. Had West Seneca been timely informed of the claim (as opposed 5 to the herpes “outbreak”), it could have interviewed tournament participants. The students who participated in the Section VI championship tournament in 2011 have since graduated. Indeed, Candino returned to the wrestling team the following season and then graduated without ever advising West Seneca that he intended to pursue a claim or that he believed West Seneca was somehow at fault. Now, however, West Seneca has been deprived of the opportunity to obtain statements while witness recollections were still fresh and the opportunity to examine plaintiff soon after the alleged exposure. Finally, West Seneca is uniquely situated because, unlike Starpoint and Iroquois, West Seneca was not served a notice of claim (or sued) by S.B. Whatever notice arguably arose from the S.B. notice of claim, such notice was not provided to West Seneca. Accordingly, the Fourth Department correctly denied Candino’s motion for leave to serve a late notice of claim. THE RECORD West Seneca student Joseph Candino Jr. was a high school wrestler in 2010- 11. (R. 36, ¶ 3). He participated in the Section VI wrestling tournament hosted by Starpoint High School on February 4-5, 2011. (R. 36, ¶ 3; R. 54, ¶ 4; R. 50, ¶ 4). At that tournament, Candino wrestled with Iroquois student B.V. (R. 36, ¶ 3). Like all students participating in the tournament, B.V. was medically cleared to participate by a physician retained by Section VI. (R. 50-51, ¶¶ 6-7; R. 103, ¶ 14). 6 B.V. was also cleared by his personal physician on February 3, 2011, two days before the alleged wrestling matches. (R. 59, ¶¶ 16-18, R. 63-65). B.V. suffered from herpes gladiatorum and Candino claims to have been infected during the wrestling match. (R. 36, ¶ 3). Candino did not qualify to advance past the Section VI tournament. (R. 54, ¶¶ 4-6; R. 51, ¶ 8). He returned to wrestle the following season. (R. 54, ¶ 7; R. 51, ¶ 9). A student from another school district who also participated in the tournament, S.B., served a notice of claim on the Starpoint and Iroquois school districts and subsequently filed suit against those districts. (R. 25, ¶ 7). S.B., however, did not file suit against West Seneca nor did he serve it with a notice of claim. (R. 47, ¶¶8-10; R. 51, ¶¶ 10-12). It was Candino’s motion for leave to serve a late notice of claim that first notified West Seneca of any claim against it stemming from the tournament. (R. 55, ¶¶ 8-10; R. 46-47, ¶¶6-8; R. 51, ¶¶ 10-12). The herpes outbreak at this wrestling tournament came to the attention of public health officials who notified school districts in Erie and Niagara Counties. (R. 25, ¶ 8, R. R. 31-34). Although Candino’s counsel indicated that the matter was reported in local and national media, he did not provide any such press materials. (R. 25, ¶ 9). By motion dated September 12, 2012, Candino sought leave to serve a late notice of claim. (R. 20-22). West Seneca argued, inter alia, that it never received 7 a notice of claim or summons and complaint from S.B.. (R. 38-43). Candino did not file reply papers addressing West Seneca’s arguments. (R. 16). Justice O’Donnell issued a Memorandum dated January 11, 2013, which did not address the fact that West Seneca was situated differently than Iroquois and Starpoint, both of whom previously received a notice of claim and summons and complaint from S.B.. (R. 17-19). By Order dated February 1, 2013, Justice O’Donnell granted Candino’s motion. (R. 15-16). Argument Point I CANDINO SHOULD NOT BE PERMITTED TO SERVE A LATE NOTICE OF CLAIM A. West Seneca Did Not Have Timely Actual Knowledge of the Claim The Fourth Department’s decision should be affirmed because it is consistent with other Appellate Division decisions finding that actual notice does not exist where accident or police reports do not identify how the municipality is allegedly responsible. For example, in Manuel v. Riverhead Cent. Sch. Dist., the Second Department recently held that a school lacked actual notice despite the fact that “a school official prepared an accident claim form the day of the incident and a school medical claim form was filled out the day following the incident” because these reports “merely indicated that Zachary hurt his right knee playing two-hand 8 touch football during physical education class.” 116 A.D.3d 1048 (2d Dep’t 2014). These reports did not establish actual knowledge “of the essential facts underlying the claims of negligent supervision and that the school field constituted a defective and dangerous condition.” Id. Courts afford great weight to whether the municipal entity “had actual knowledge of the essential facts constituting the claim within 90 days of its accrual or within a reasonable time thereafter.” Santana v. Western Regional Off-Track Betting Corp., 2 A.D.3d 1304, 1304 (4th Dep’t 2003). In Thomann v. City of Rochester, Justice Cardozo considered a notice of claim provision and noted that: What satisfies the statute is not knowledge of the wrong. What the statute exacts is notice of the ‘claim.’ 256 N.Y. 165, 172 (1931). In Shapiro v. County of Nassau, the Second Department applied Thomann and found that it was appropriate to deny leave to serve a late notice of claim where a county had knowledge of an accident, but where the police report describing the accident failed to “state the connection between the accident and the condition complained of.” 208 A.D.2d 545, 545 (2d Dep’t 1994). Actual notice requires knowledge of a purported connection between West Seneca’s alleged acts or omissions and Candino’s injury. Matter of Gilbert v. Eden Centr. Sch. Dist., 306 A.D.2d 925, 926 (4th Dep’t 2003) (awareness of “the essential facts constituting the claim” requires “connection between the injuries 9 and the alleged negligence of respondents, and respondents were aware of that connection”) (emphasis added); Werner v. Nyack Union Free Sch. Dist., 76 A.D.3d 1026, 1027 (2d Dep’t 2010) (“The statute contemplates not only knowledge of the facts, but also how they relate to the legal claim to be asserted.”) (emphasis added). The Appellate Divisions have held that knowledge of an alleged wrong cannot support a request for leave to serve a late notice of claim. In Ertel v. Town of Amherst, the Fourth Department affirmed denial of leave to serve a late notice of claim because the claimants “failed to establish that [the Town] had notice or knowledge of the specific claim and not general knowledge that a wrong has been committed.” 267 A.D.2d 1024, 1024 (4th Dep’t 1999) (emphasis added and internal quotation marks omitted). “Knowledge of the injuries or damages claimed by a [claimant], rather than mere notice of the underlying occurrence, is necessary to establish actual knowledge of the essential facts of the claim within the meaning of General Municipal Law § 50-e(5).” Id. Ertel cited, inter alia, Sica v. Board of Educ. of the City of New York, which noted that, “[w]hat satisfies [General Municipal Law § 50-e(5)] is not knowledge of the wrong but notice of the claim. The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed.” 226 A.D.2d 542, 543 (2d Dep’t 1996); see also Tavarez v. 10 City of New York, 26 A.D.3d 297, 297-98 (1st Dep’t 2006) (“Knowledge of the facts underlying an occurrence does not constitute knowledge of the claim.”); Brown v. City of Buffalo, 100 A.D.3d 1439, 1440 (4th Dep’t 2012) (“for a [police] report to provide actual knowledge of the essential facts, one must be able to readily infer from that report that a potentially actionable wrong had been committed by the public corporation”) (citation omitted); Bridgeview at Babylon Cove Homeowners Association, Inc. v. Incorporated Village of Babylon, 41 A.D.3d 404, 406 (2d Dep’t 2007) (“The municipality must have notice or knowledge of the specific claim and not general knowledge that a wrong has been committed” and police report and letter to Mayor “did not suggest any connection between the . . . incident and any alleged negligence by the Village”); Walker v. Riverhead Cent. Sch. Dist., 2013 WL 2420840, at *1 (2d Dep’t 2013) (“the accident reports were inadequate to provide the District with actual knowledge of the facts constituting the claim against it, since they did not indicate that the petitioner sustained any injuries as a result of the subject accident”); Lewis v. Northpole Fire Co., Ins., 11 A.D.3d 911 (4th Dep’t 2004) (affirmed denial of leave to serve a late notice of claim where volunteer fire company did not have “timely notice of any injuries or damages claimed by plaintiffs beyond mere notice of the underlying occurrence.”) (emphasis added). 11 Similarly, in Folmar v. Lewiston-Porter Cent. Sch. Dist., the court held that a school district’s knowledge of an accident involving its school bus and the bus driver’s injury was not “actual knowledge of the essential facts constituting the claim.” 85 A.D.3d 1644, 1645 (4th Dep’t 2011). Folmar held that the trial court abused its discretion in granting leave to serve a late notice of claim because the motion was the first time the district learned of the driver’s theories of liability against the district. Id. Before the motion, the district “was unaware of any facts to suggest that it was responsible for claimant's injuries despite its knowledge that the accident occurred.” Id. This rule has been applied in the context of injured student athletes. For example, in Felice v. Eastport/South Manor Cent. Sch. Dist., the court held that a cheerleader injured during a practice was not permitted to serve a late notice of claim seven months after her injury. 50 A.D.3d 138, 150 (2d Dep’t 2008) (citing cases involving injured students). The district lacked “actual knowledge” because “[n]owhere in the injury report is there any recitation or allegation” that the “basers” were too small to catch plaintiff. Id. Nor did the fact that the coach was aware of the injury (Felice was taken away by ambulance) provide actual knowledge. Id. In Le Mieux v. Alden High Sch., the court held that notice of plaintiff’s injury during a track meet, because coaches were present, did not provide “actual 12 notice” of the claim, namely the allegation that the school failed to maintain an adequate amount of sand in long-jump pit. 1 A.D.3d 995, 996 (4th Dep’t 2003). In Jantzen v. Half Hollow Hills Centr. Sch. Dist., a wrestler injured during a scrimmage was not permitted to serve a notice of claim twenty months after injury because information provided to the school nurse was insufficient to place the district on notice of its alleged negligence “in supervising or positioning the members of the wrestling team during the scrimmage.” 56 A.D.3d 474, 475 (2d Dep’t 2007). In Doyle v. Elwood Union Free School Dist., the court held that an Accident Claim Form and Student Incident Report noting that the infant petitioner was injured playing table tennis at school were insufficient to put the school on notice of the essential facts of the claim because “they did not suggest a connection between the happening of the accident and any alleged negligence” by the school. 39 A.D.3d 544, 545 (2d Dep’t 2007) (reversing the lower court’s decision granting leave to serve a late notice of claim). Candino relies on a health advisory that was allegedly sent to all school districts in Erie and Niagara Counties. (R. 25, ¶ 8, R. R. 31-34). That advisory, however, provides no notice whatsoever of a claim by Candino against West Seneca, nor does it in any way describe anything that West Seneca did (or failed to do) which could have possibly contributed to Candino’s plight. (R. 41, ¶ 12). The 13 advisory merely referenced the outbreak and recommended protocol moving forward. (Id.). This, however, is insufficient. Although West Seneca received the advisory concerning the herpes outbreak, this did not inform West Seneca of the identity any of injured wrestler, the nature of Candino’s injuries, his claim, or his assertion that West Seneca did anything wrong. Nor was the advisory even specifically directed to West Seneca. The “all schools” advisory from the Erie County Health Department did not place West Seneca on notice of a claim that it was negligent in some fashion in causing injury to Candino -- as opposed to a potential health issue that required monitoring. (R. 31-34). The advisory simply noted, inter alia, that the DOH was “investigating several cases of skin infection in high school wrestlers” involving wrestlers who participated in the tournament. (R. 31-32). The advisory suggested that schools take precautions including: having participants shower with anti- bacterial soap after competing, disinfecting environmental surfaces, proper ventilation, and good wound management. (R. 32). If police or accident reports investigating a specific incident do not establish actual notice of a claim (but which do not connect the incident to the municipality’s purported negligence), then a general health advisory concerning an outbreak of herpes is even less likely to notify West Seneca of a potential claim against it. 14 Although Candino makes the conclusory assertion that West Seneca failed to provide proper supervision, he offers no specific allegation as to how West Seneca failed to supervise him. Was West Seneca supposed to (A) assume that the two physicians who examined B.V. and cleared him to wrestle would fail to diagnose herpes, and (B) retain its own physician to examine each student scheduled to wrestle against a West Seneca wrestler? Was the coach supposed to do what B.V.’s two physicians failed to do, diagnose a skin disease? Even at this stage, Candino’s brief offers no theory or allegation connecting West Seneca to his herpes. Candino cites this Court’s decision in Williams v. Nassau County Med. Ctr., 6 N.Y.3d 531 (2006), which supports West Seneca. Like the medical chart in Williams, the all schools advisory contained no indication that Candino was injured or that West Seneca was somehow responsible. Indeed, even if West Seneca had investigated the herpes outbreak, it would not have necessarily investigated the claim that Candino now seeks to raise, i.e., that West Seneca failed to supervise Candino in some unspecified manner. Candino simply makes the conclusory assertion that he was injured “under circumstances evincing school’s failure to adequately supervise the proceedings and protect the students.” (Pl.’s Br., at 19). Although Candino argues that Williams stands for the proposition that a municipality must be aware of a “potential injury,” Williams in fact held that late 15 notice of claim was inappropriate, and only discussed “potential injury” because the alleged injury was a birth injury that did not manifest until ten years later. This Court held that the records did not provide notice of any injury. Candino also argues that West Seneca’s Superintendent, Athletic Director, and coach have not denied “being aware” that Candino “was among the wrestlers who were infected at the meet.” (Pl.’s Br., at 18). First, as discussed above, Candino (not West Seneca) bears the burden of showing “actual notice.” Second, even if the coach had been aware that Candino was infected at the tournament, such knowledge would not inform West Seneca how the injury was allegedly caused by West Seneca. Third, West Seneca did not investigate Candino’s alleged injury because it had no reason to believe that it was being blamed. (R. 47, ¶¶ 11- 12; 51, ¶ 12; 55, ¶ 10). Finally, Candino cannot rely on the fact that Williamsville student, S.B., served a notice of claim with Iroquois and Starpoint. (R. 5, ¶ 7). West Seneca was not named in or served with any notice of claim or lawsuit concerning S.B.. (R. 47, ¶¶ 8-10). Candino acknowledged that West Seneca was not a party to that claim or action. (R. 26, ¶ 12). Moreover, West Seneca’s Superintendent, Athletic Director, and wrestling coach each submitted affidavits noting that they lacked any knowledge of any potential claim by Candino until he filed a motion for leave. (R. 46-47, ¶¶ 6-10; R. 55, ¶¶ 8-9; R. 51, ¶¶ 10-11). Consequently, the trial court 16 erroneously “transmute[d] the requirement of ‘actual knowledge of the facts constituting the claim’ into actual knowledge of the accident and constructive knowledge of the essential facts constituting the claim.” Felice, 50 A.D.3d at 155. In the area of municipal notices of claim, outcomes must be “more predictable and not merely the product of judicial whimsy.” Id. at 139. Accordingly, the Fourth Department was correct in denying Candino’s request for leave to serve a late notice of claim. B. Candino Offered No Reasonable Excuse for Failing to File a Timely Notice of Claim In seeking leave to serve a late notice of claim, the moving party must demonstrate “a reasonable excuse for the failure to serve a timely notice of claim.” Lewis, 11 A.D.3d at 911. Candino’s proffered excuses were that (A) he was unaware of the notice of claim requirement and (B) he was an infant. (R. 36, ¶ 5; R. 26, ¶ 13). As the court held in Le Mieux, however, “neither infancy alone . . . nor ignorance of the law . . . provides a sufficient excuse for failure to [serve] a timely notice of claim.” 1 A.D.3d 995, 996 (4th Dep’t 2003). Indeed, “[i]gnorance of the notice of claim requirement is not an acceptable excuse.” Felice, 50 A.D.3d at 150. Likewise, in Brown, the Fourth Department held that claimant’s ignorance of the “notice of claim requirement” did not establish reasonable excuse for the delay. 100 A.D.3d at 1440. Accordingly, 17 Candino’s excuse that he “was unaware that [the school districts] required a Notice of Claim within a limited time period” (R. 36, ¶ 5; R. 26, ¶ 13) was properly rejected by the Fourth Department. Doyle, 39 A.D.3d at 545. Nor was it an acceptable excuse that Candino was an infant at the time of the tournament without also proffering a reason why his infancy purportedly prevented him from complying with the notice of claim requirements. Le Mieux, 1 A.D.3d at 996; Felice, 50 A.D.3d at 150; Doyle, 39 A.D.3d at 545. Nor did Candino proffer any nexus between infancy and his delay. Indeed, his excuse appears to be no different than the injured athlete in Le Mieux. Candino’s generalized reliance upon infancy was properly rejected because “the infancy of an injured claimant does not, by itself, compel the granting of a petition for leave to serve a late notice of claim.” Rennell S. v. North Junior High Sch., 12 A.D.3d 518, 519 (2d Dep’t 2004); see also Conte v. Valley Stream Cent. High Sch. Dist., 23 A.D.3d 328, 328 (2d Dep’t 2005) (court improvidently granted leave where plaintiff “failed to establish a reasonable excuse for the delay, as there was no nexus between the plaintiff's infancy and the delay in serving the notice”). Candino proffered no reason why his infancy purportedly resulted in delay – as opposed to the fact that he apparently elected to return to the wrestling team and defer a notice of claim until after he graduated. At the time of the tournament, Candino was two months’ shy of his seventeenth birthday, but he waited for 19 18 months after the tournament to seek leave to serve a late notice of claim. (R. 36, ¶ 5; R. 26, ¶ 13). Courts have consistently denied infant students leave to serve a late notice of claim under circumstances similar to this case. See e.g., Felice 50 A.D.3d at 139- 42 (tenth grade cheerleader failed to proffer reason for delay where she waited seven months to see if she would return to the cheerleading team before asserting claim); Le Mieux, 1 A.D.3d at 996 (seventeen year-old high school athlete failed to proffer reason for twenty-one month delay after injuring knee in track meet); Ryder v. Garden City Sch. Dist., 277 A.D.2d 388, 389 (2d Dep’t 2000) (high school football player injured during practice “failed to proffer any excuse” for eleven month delay); see also In re Lennon v. Roosevelt Union Free Sch. Dist., 6 A.D.3d 713, 714 (2d Dep’t 2004) (denying leave where elementary school student’s mother proffered no reason for eleven month delay after he was injured by carrying a crate at the direction of his teacher). Likewise, the Fourth Department did not abuse its discretion in denying leave to serve a late notice claim. Finally, Candino offered no excuse other than ignorance (which is insufficient) for his decision to wait five months after he turned 18 before seeking leave to serve a late notice of claim. (R. 39, ¶¶ 5-6; R. 36, ¶ 5). The Fourth 19 Department, therefore, correctly held that Candino proffered no reasonable excuse for his delay. C. West Seneca Would Be Substantially Prejudiced by Candino’s Late Notice of Claim Candino did not meet his burden of demonstrating that West Seneca would not have been prejudiced. Torres v. Tuckahoe Union Free School Dist., 94 A.D.3d 770, 771 (2d Dep’t 2012) (“petitioners failed to establish that the delay in serving a notice of claim would not substantially prejudice the School District”); Grogan v. Seaford Union Free School Dist., 59 A.D.3d 596, 597 (2d Dep’t 2009) (“plaintiffs fail to satisfy their burden” of demonstrating the three elements). Candino’s nineteen month delay in seeking to serve a late notice of claim substantially prejudiced West Seneca. Courts have held that, as a matter of law, delay results in the diminished likelihood of obtaining “fresh” witness recollections, without the need for proffering specific evidence to support the assertion. For example, in Kelley v. New York City Health & Hospitals Corp., the First Department held that petitioner bore the burden of “showing a lack of prejudice, but asserts nothing to demonstrate that the passage of time has not caused prejudice.” 76 A.D.3d 824, 829 (1st Dep’t 2010) (citation omitted). The court noted that, “[o]f course, the likelihood of the [hospital] staff having any 20 recollection of petitioner is diminished by the passage of time . . . where there is a one-year period of delay.” Id. A municipality is substantially prejudiced where it is prevented from conducting a prompt and effective investigation into the allegations at issue. In Friend v. Town of West Seneca, the court reversed a decision granting leave to serve late notice of claim fourteen months after accident where town was “substantially prejudiced by the delay because it could not promptly obtain witness statements and a medical examination of claimant.” 71 A.D.3d 1406, 1407 (4th Dep’t 2010); Santana, 2 A.D.3d at 1305 (finding prejudice where defendant was prevented “from promptly obtaining witness statements and a medical examination of claimant”). Such delay is “particularly significant” where, as here, “there was no injury apparent immediately after the incident.” Id. This need for “fresh recollections” is especially applicable in the context of injured students where the ability to interview witnesses quickly diminishes after the school year ends. Candino’s delay prevented West Seneca from interviewing tournament participants that school year, before students graduated and their memories faded concerning the tournament. For example, in Felice the district was substantially prejudiced in its ability to interview students involved in cheerleading practice whose memories “may already have faded in the more-than 180 days between the date of the accident.” 50 A.D.3d at 139-42; see also Jantzen, 21 56 A.D.3d at 475 (abuse of discretion to permit wrestler to pursue claim three years after being injured during scrimmage because claimant failed to show that school was not prejudiced); Matter of Joseph v. City of New York, 101 A.D.3d 721, 722 (2d Dep’t 2012) (court abused discretion in granting application where student did not rebut district’s assertion that two year delay prejudiced its ability “to locate and examine witnesses while their memories of the facts are still fresh” concerning slip and fall in cafeteria). Not only does Candino fail to bear his burden of showing “no prejudice” to West Seneca due to fading memories and transient witnesses, but he does not even address the fact that West Seneca was deprived of an opportunity to promptly have a medical examination conducted. Friend, 71 A.D.3d at 1407; Santana, 2 A.D.3d at 1305 (finding prejudice where defendant prevented “from promptly obtaining witness statements and a medical examination of claimant”). Although West Seneca’s coach was at the tournament (and even assuming arguendo that he watched Candino’s match), that does not amount to actual notice. Indeed, this Court and others have held that a coach’s presence during a student athlete’s injury, does not necessarily provide actual notice. For example, in LeMieux, this Court held that district did not have actual notice of claim even though coach was present when athlete injured knee during long jump. 1 A.D.3d at 996; see also Felice, 50 A.D.3d at 150 (no actual notice despite fact that coach 22 was aware that cheerleader injured during a practice because cheerleader was taken away by ambulance). West Seneca conducted no investigation of the herpes outbreak at the tournament because it had no prior notice of Candino’s claim. (R. 47, ¶¶ 11-12; R. 55, ¶¶ 8-10). Had a timely Notice of Claim been served, West Seneca would have: 1. Interviewed the West Seneca wrestlers, and sought to interview wrestlers from other districts, concerning what happened at the tournament, what they saw, what they heard; 2. Obtained statements from the then-current coaches to memorialize what they saw and heard at the tournament; and 3. Obtained a prompt medical examination of Candino. (R. 42-43, ¶ 19). Candino’s nineteen month delay prevented West Seneca from obtaining a prompt medical examination to ensure that he did not contract herpes from another source. For example, in In re Jackson v. Newburgh Enlarged City Sch. Dist., the court found that it was an abuse of discretion to grant leave to serve a late notice of claim where a one year delay prevented the district from promptly obtaining medical examination of infant plaintiff, “especially since there was no injury apparent immediately after the incident.” 85 A.D.3d 1031, 1032 (2d Dep’t 2011). 23 Point II CANDINO’S CLAIM IS PATENTLY MERITLESS Underscoring the prejudice to West Seneca is the fact that the proposed claim has no merit as against West Seneca, which had no responsibility for or control over B.V., the decision to allow him to wrestle, the physicians who cleared him to wrestle, or the tournament generally. (R. 50-51, ¶¶ 6-7; R. 59, ¶¶ 16-18; R. 63-65; R. 103, ¶¶ 12-16; R. 98-99, ¶¶ 9-15). Leave is not appropriate for a meritless claim. Hess v. West Seneca Cent. Sch. Dist., 15 N.Y.3d 813 (2010) (holding that it was an abuse of discretion to grant leave to serve late notice of claim where school district “did not create or have responsibility for the allegedly hazardous condition of the intersection where claimant’s son was injured”). Consequently, the Fourth Department’s decision should be affirmed as against West Seneca – independent of the reasons set forth above -- because West Seneca had no control over the decision to permit B.V. to participate in the tournament. Indeed, Candino has claims pending against B.V., the physicians who cleared him to wrestle, and the league that retained the physician to examine tournament participants. In Farrell v. Hochhauser, the Second Department was faced with similar facts involving a high school wrestler who sued a school district based on allegations that he contracted herpes simplex I during a wrestling match. 65 24 A.D.3d 663 (2d Dep’t 2009). The Court agreed that contracting a communicable disease is an inherent danger of wrestling and held that the infant plaintiff had assumed the risk, and therefore, could not hold the school district liable. Id. at 663- 64. Like Farrell, Candino’s claim lacks merit because West Seneca had no control over the decision to permit B.V. to wrestle. Candino seeks to distinguish Farrell by arguing that it granted summary judgment and that West Seneca did not proffer evidence entitling it to judgment. No evidence is necessary to demonstrate the lack of merit of Candino’s claim. He does not allege a single thing that West Seneca did or failed to do that resulted in his contraction of a skin disease – which, under Farrell, is an inherent danger of the sport of wrestling as a matter of law. Candino also argues that the “all schools” advisory shows that the danger of skin infection is over and above the “usual dangers that are inherent in the sport of” wrestling. (Pl.’s Br., at 13) (citing Owen v. RJS Safety Equip., 79 N.Y.2d 967, 970 (1992)). This argument must be rejected for several reasons. First, Owen is distinguishable because it involved a track that was “unique” in its design, and thus presented a risk that was beyond the risks that auto racing participants normally assume through voluntary participation. Here, there is no “unique” danger, and certainly no unique danger created by West Seneca (unlike the track owner in Owen). Cf. Bukowski v. Clarkson Univ., 19 N.Y.3d 353, 357 25 (2012) (distinguishing Owen because it involved a negligent track design, which is different than “suboptimal” playing conditions associated with indoor baseball practice). Second, the “all schools” advisory does not suggest that skin disease is an uncommon danger. Quite the opposite. The advisory notes that, “[d]ue to the direct skin to skin contact that occurs during wrestling matches, the potential for transmission of pathogens between wrestlers is significant [and] [c]ommon skin infections that affect wrestlers and other athletes with skin to skin contact include: Herpes gladiatorum”, Staph, MRSA, and ringworm. (R. 33) (emphasis added). Diseases transmitted through skin-to-skin contact are an inherent danger of wrestling, as recognized by the National Federation of State High School Associations and academic literature: • http://www.vhsl.org/doc/upload/smac-sports-related-skin-infections-nfhs- oct06.pdf; • http://www.atsnj.org/documents/pdf/2010_Managing_Herpes_Wrestling. pdf. Point III WEST SENECA RESERVES ARGUMENTS IN APPELLATE DIVISION BRIEFS Under 22 NYCRR 500.11(f), West Seneca reserves all arguments made in its brief to the Appellate Division, Fourth Department. 26 CONCLUSION For these reasons, West Seneca respectfully requests that this Court affirm the Fourth Department’s decision denying Claimant’s motion for leave to serve a late notice of claim. Very truly yours, s/Jeremy A. Colby Jeremy A. Colby JAC:smb cc: John A. Collins (by U.S. Mail) Jenna W. Klucsik (by U.S. Mail) Louis B. Dingeldey, Jr. (by U.S. Mail)