The Fourth Department determined claimant high school wrestler should not have been granted leave to serve a late notice of claim against one of the two named schools, Akron. The claimant alleged he contracted herpes from an Akron wrestler during a tournament at Akron. Although Akron was deemed to have constructive knowledge of the claim, the court found it did not have timely actual knowledge of the essential facts of the claim:
We agree with Akron … 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. …[C]laimant here established that, at most, Akron had constructive knowledge of the claim, which is insufficient … . 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 … . 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 … . Matter of Ficek v Akron Cent. Sch. Dist., 2016 NY Slip Op 07545, 4th Dept 11-10-16
EDUCATION SCHOOL LAW (LATE NOTICE OF CLAIM, SCHOOL MAY HAVE HAD CONSTRUCTIVE KNOWLEDGE OF THE STUDENT’S CLAIM, BUT DID NOT HAVE ACTUAL KNOWLEDGE, LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NEGLIGENCE (SCHOOL, LATE NOTICE OF CLAIM, SCHOOL MAY HAVE HAD CONSTRUCTIVE KNOWLEDGE OF THE STUDENT’S CLAIM, BUT DID NOT HAVE ACTUAL KNOWLEDGE, LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)/NOTICE OF CLAIM (SCHOOL, LATE NOTICE OF CLAIM, SCHOOL MAY HAVE HAD CONSTRUCTIVE KNOWLEDGE OF THE STUDENT’S CLAIM, BUT DID NOT HAVE ACTUAL KNOWLEDGE, LEAVE TO SERVE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED)