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PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING.

The Fourth Department determined the doctrine of primary assumption of the risk precluded recovery by a professional wrestler for injuries resulting from a planned jump from the ropes into the ring:

It is well settled that the primary “assumption of [the] risk doctrine applies where a consenting participant in sporting and amusement activities is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks’ ” … . The participant assumes the risks that are inherent in the “sporting or amusement activit[y]” (id.), which “commensurately negates any duty on the part of the defendant to safeguard him or her from the risk” … . Consequently, a participant in such activity ” consents to those commonly appreciated risks which are inherent in and arise out of the nature of the [activity] generally and flow from such participation’ ” … . “[F]or purposes of determining the extent of the threshold duty of care, knowledge plays a role but inherency is the sine qua non” … . Finally, “[t]he primary assumption of the risk doctrine also encompasses risks involving less than optimal conditions . . . It is not necessary to the application of assumption of [the] risk that the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as he or she is aware of the potential for injury of the mechanism from which the injury results’ ” … .

Here, the court properly concluded that the risk of severe neck and back injuries is inherent in the planned and staged activity engaged in by plaintiff, i.e., jumping from a four-foot high rope onto a wrestling ring, landing on one’s back, and then being pushed out of the ring by another performer. Thus, “it is indisputable that . . . plaintiff assumed the risk of landing incorrectly when tumbling in the manner he had been trained to do during his [five-year career as a professional wrestling performer]. The fact that the [rope was slightly looser], a circumstance of which . . . plaintiff was plainly aware, does not raise an issue of fact” … . Therefore, “by participating in the [exhibition], plaintiff consented that the duty of care owed him by defendants was no more than a duty to avoid reckless or intentionally harmful conduct . . . [and] consent[ed] to accept the risk of injuries that are known, apparent or reasonably foreseeable consequences of his participation in” that exhibition … , including the risk of the injuries he sustained. Kingston v Cardinal O’Hara High School, 2016 NY Slip Op 07798, 4th Dept 11-18-16

 

NEGLIGENCE (PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING)/ASSUMPTION OF THE RISK (PROFESSIONAL WRESTLER ASSUMED RISK OF INJURY WHEN JUMPING FROM THE ROPES INTO THE RING)

ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE.

The Fourth Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this slip and fall case should not have been granted. There was evidence a step leading to defendants’ premises was dangerous because there were no markings or differences in color between the step and the sidewalk:

“[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the particular facts and circumstances of each case and is generally a question of fact for the jury” … . In view of the pertinent “factors that may render a physically small defect actionable” … , we conclude that … (defendants) failed to sustain their burden of establishing as a matter of law the absence of any defect with the step … . In any event, we conclude that, in opposition to the motion and cross motion, plaintiff raised a triable issue of fact concerning the existence of a defect by submitting evidence that there were no markings on the step or differences in color between the step and the sidewalk … . Furthermore, the step was located in or very near a doorway, “where a person’s attention would be drawn to the door, not to the [step]” … .

We further conclude that the court erred in determining that plaintiff’s inattention to the step upon exiting the premises was the sole proximate cause of her injuries as a matter of law inasmuch as defendants “failed to establish that plaintiff’s fall was unrelated to the alleged defect” … . Thus, “while plaintiff may have been comparatively negligent in failing to observe the step or in failing to remember that the step was there, any such comparative negligence would not serve to negate the liability of the . . . landowner[,] who has a duty to keep the premises safe’ ” … . Grefrath v DeFelice, 2016 NY Slip Op 07786, 4th Dept 11-18-16

 

NEGLIGENCE (ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)/SLIP AND FALL (ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)/STEPS (SLIP AND FALL, ABSENCE OF MARKINGS OR COLOR DIFFERENTIATION BETWEEN STEP AND SIDEWALK CREATED AN ISSUE OF FACT WHETHER THE STEP WAS A DANGEROUS CONDITION, IRRESPECTIVE OF PLAINTIFF’S POSSIBLE COMPARATIVE NEGLIGENCE)

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RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT.

The Fourth Department, reversing (modifying) Supreme Court, determined that the “reckless disregard” standard applied to the defendant police officer’s driving and dismissed plaintiff bicyclist’s complaint. Apparently, the officer was moving his car into an intersection, trying to get the attention of another driver to whom he wished to speak. Plaintiff bicyclist, who had the green light, collided with the officer’s car:

… [W]e note that there is no dispute that defendant officer was operating an “authorized emergency vehicle” (Vehicle and Traffic Law § 101). We reject plaintiff’s contention that, in determining whether defendant officer’s operation of the police vehicle qualifies as an “emergency operation” within the meaning of Vehicle and Traffic Law § 114-b, we should adopt the definition of “pursuit” contained in the operations manual of defendant City of Syracuse Police Department … . Likewise, it is irrelevant whether defendant officer believed he was involved in an emergency operation … . Contrary to plaintiff’s further contentions, we conclude that defendant officer’s actions constituted an “emergency operation” as contemplated by Vehicle and Traffic Law § 114-b … ; the applicable standard of liability is reckless disregard for the safety of others rather than ordinary negligence (see § 1104 [e]…); and defendants established as a matter of law that defendant officer’s conduct did not constitute the type of recklessness necessary for liability to attach … . Lacey v City of Syracuse, 2016 NY Slip Op 07794, 4th Dept 11-18-16

MUNICIPAL LAW (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/NEGLIGENCE (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/EMERGENCY VEHICLES (POLICE OFFICERS, RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)/POLICE OFFICERS (RECKLESS DISREGARD STANDARD APPLIED TO COLLISION BETWEEN BICYCLE AND POLICE CAR, EVEN THOUGH THE OFFICER WAS NOT IN PURSUIT)

PLAINTIFF COULD NOT IDENTIFY CAUSE OF THE FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT.

The First Department determined defendants’ motion for summary judgment in this sidewalk slip and fall case was properly granted. Plaintiff could not identify the cause of the fall and any defect that might have existed was deemed trivial:

Defendants established prima facie that any defect in the sidewalk that allegedly caused plaintiff to trip and fall was insignificant and that there were no surrounding circumstances that magnified the dangers it posed … . They submitted plaintiff’s testimony that he could not describe the characteristics of the alleged defect or specify exactly where on the sidewalk he fell, and an affidavit by an expert who took photographs and measured the area and found no defect presenting an elevation differential of more than one quarter inch and no space between sidewalk slabs greater than one half inch. Contrary to plaintiff’s contention, the fact that the photographs were taken and the inspection performed almost two years after the accident is immaterial. Defendants submitted testimony that there had been no repairs to the sidewalk since the accident, and plaintiff does not argue that the photographs do not show the sidewalk in substantially the same condition as existed at the time of the accident.

In opposition, plaintiff failed to raise a triable issue of fact. He was unable to describe the defect, except to say that it was not wide and it was not deep, and he cites no surrounding circumstances that enhanced the danger. Nor did he offer any measurements of the alleged defects in the area of his fall in refutation of defendants’ expert’s measurements. Saab v CVS Caremark Corp., 2016 NY Slip Op 07763, 1st Dept 11-17-16

NEGLIGENCE (PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)/SLIP AND FALL (PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)/SIDEWALKS (SLIP AND FALL, PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)/TRIVIAL DEFECTS (PLAINTIFF COULD NOT IDENTIFY CAUSE OF FALL AND ANY DEFECTS IN THE SIDEWALK WERE INSIGNIFICANT)

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MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT.

The Second Department determined plaintiff’s motion to serve a late notice of claim should have been granted. The plaintiff served a notice of claim 30 days after the 90-day time limit expired, but defendant NYC Health and Hospitals Corporation conducted a 50-h hearing. After serving the summons and complaint, the plaintiff moved for leave to file a late notice of claim:

General Municipal Law § 50-e(5) permits a court to extend the time to serve a notice of claim. In determining whether to grant such an extension, the court must consider various factors, of which the ” most important'” is “whether the public corporation acquired actual notice of the essential facts constituting the claim within 90 days of the accrual of the claim or within a reasonable time thereafter” … .

Under the circumstances of this case, in which the defendant received a late notice of claim less than one month after the expiration of the 90-day period, which it accepted and with respect to which it conducted an examination pursuant to General Municipal Law § 50-h, the defendant acquired actual knowledge of the essential facts underlying the claim within a reasonable time after the expiration of the 90-day period … . Brunson v New York City Health & Hosps. Corp., 2016 NY Slip Op 07618, 2nd Dept 11-16-16

 

MUNICIPAL LAW (MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)/NOTICE OF CLAIM (MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)/NEGLIGENCE (MUNICIPAL LAW, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)/MEDICAL MALPRACTICE (MUNICIPAL LAW, MOTION FOR LEAVE TO FILE LATE NOTICE OF CLAIM SHOULD HAVE BEEN GRANTED, DEFENDANT HAD ALREADY CONDUCTED A 50-h HEARING AND THEREFORE HAD NOTICE OF THE ESSENTIAL FACTS WITHIN ONE MONTH OF THE EXPIRATION OF THE 90-DAY TIME LIMIT)

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COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS.

The Second Department determined the county’s motion for summary judgment was properly denied in this intersection car accident case. Plaintiff alleged the county was negligent in failing to install a traffic control device with a left turn signal, because there was a designated lane for a left turn. The accident occurred when plaintiff attempted to make a left turn. Because the county did not demonstrate the issue had been adequately studied, it did not demonstrate government immunity applied. Therefore the county’s motion was properly denied without need to address the opposing papers:

A governmental entity has a duty to the public to keep its streets in a reasonably safe condition … . “While this duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the [government’s] planning and decision-making functions. Thus, in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision” … . Under the doctrine of qualified immunity, a governmental entity may not be held liable for a highway safety planning decision unless its study of a traffic condition is plainly inadequate, or there is no reasonable basis for its traffic plan … . Immunity will apply only “where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury” … .

Here, the County failed to establish that the design of the subject traffic signal, including the determination that no left-turn signal was warranted, was based on a study which entertained and passed on the very same question of risk that the plaintiff would put to a jury … . Warren v Evans, 2016 NY Slip Op 07641, 2nd Dept 11-16-16

 

MUNICIPAL LAW (COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS)/IMMUNITY (HIGHWAYS, COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS)/NEGLIGENCE (MUNICIPAL LAW, HIGHWAYS, COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS)/HIGHWAYS (COUNTY DID NOT DEMONSTRATE THE NEED FOR A LEFT TURN SIGNAL HAD BEEN STUDIED, THEREFORE THE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT ON IMMUNITY GROUNDS)

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DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK.

Defendant, Frasier, was driving to work in his own car when he was involved in a rear-end collision with plaintiff. Plaintiff sued defendant’s employer under the doctrine of respondeat superior. The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment should have been granted. The defendant was not acting within the scope of his employment when the accident occurred:

As a general rule, an employee driving to and from work is not acting in the scope of his [or her] employment . . . Although such activity is work motivated, the element of control is lacking” … . “Although the issue whether an employee is acting within the scope of his or her employment generally is one of fact, it may be decided as a matter of law in a case such as this, in which the relevant facts are undisputed” … .

Contrary to plaintiffs’ contention, the mere fact that Frasier carried his own tools in his vehicle was insufficient to “transform the use of the automobile into a special errand [for defendant] or an extension of the employment” … . Moreover, the fact that Frasier drove a coworker to work that morning is of no significance because he was not directed to do so, and the carpool was based on the employees’ “personal arrangement” … . Finally, the fact that defendant paid for lodging for Frasier while he was at a remote work site also does not require a different finding inasmuch as defendant did not require its employees to stay at the procured hotel, and the employees did not have “to inform defendant of their whereabouts [outside of working hours]” … . Figura v Frasier, 2016 NY Slip Op 07525, 4th Dept 11-10-16

 

NEGLIGENCE (DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)/EMPLOYMENT LAW (NEGLIGENCE, RESPONDEAT SUPERIOR, DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)/RESPONDEAT SUPERIOR (DEFENDANT EMPLOYEE WAS NOT ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE REAR-END COLLISION OCCURRED; DEFENDANT WAS DRIVING HIS OWN CAR TO WORK)

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PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW.

The Fourth Department, reversing Supreme Court, determined plaintiff had raised an issue of fact whether defendant contractor owed a duty to plaintiff because its flooring work created an unreasonable risk of harm to others. However Supreme Court erred in not finding the defect trivial as a matter of law:

Here, the record establishes that the bullnose tile was slightly less than one-half of an inch in height and was not the same color as the tile floor. * * * …”[T]he test established by the case law in New York is not whether a defect is capable of catching a pedestrian’s shoe. … [T]he relevant questions are whether the defect was difficult for a pedestrian to see or to identify as a hazard or difficult to pass over safely on foot in light of the surrounding circumstances” … . Upon our review of the photos of the alleged defect and in view of the less than ½-inch height of the bullnose tile and the circumstances surrounding decedent’s accident … , we conclude that, although an accident occurred that is “traceable to the defect, there is no liability” because the alleged defect ” is so slight that no careful or prudent [person] would reasonably anticipate any danger from its existence’ ” under the circumstances present here … . Stein v Sarkisian Bros., Inc., 2016 NY Slip Op 07501, 4th Dept 11-10-16

NEGLIGENCE (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW)/CONTRACT LAW (TORT LIABILITY TO THIRD PARTIES, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW)/SLIP AND FALL (PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW)/TRIVIAL DEFECT (SLIP AND FALL, PLAINTIFF RAISED A QUESTION OF FACT WHETHER DEFENDANT CONTRACTOR CREATED AN UNREASONABLE RISK OF HARM WHEN INSTALLING A FLOOR AND THEREFORE OWED A DUTY TO PLAINTFF, HOWEVER THE DEFECT WAS TRIVIAL AS A MATTER OF LAW)

STORM IN PROGRESS RULE REQUIRED SUMMARY JUDGMENT TO DEFENDANT IN THIS SLIP AND FALL CASE, FAILURE TO REMOVE ALL SNOW FROM A PARKING LOT DOES NOT CREATE A HAZARD.

The Fourth Department, reversing Supreme Court, determined defendant’s motion for summary judgment in this slip and fall case should have been granted. Defendants established they had no duty to remove snow at the time of plaintiff’s fall under the storm in progress doctrine. The court noted that the duty to render a parking lot safe does not entail the removal of all the snow:

It is undisputed that defendants met their initial burden on the motion “by establishing that a storm was in progress at the time of the accident and, thus, that they had no duty to remove the snow and ice until a reasonable time ha[d] elapsed after cessation of the storm” … . In opposition, plaintiff failed to raise a triable issue of fact ” whether the accident was caused by a slippery condition at the location where [she] fell that existed prior to the storm, as opposed to precipitation from the storm in progress, and that the defendant[s] had actual or constructive notice of the preexisting condition’ ” … . Even assuming, arguendo, that plaintiff was entitled to rely upon the theory that the icy condition formed prior to the storm upon the melting and refreezing of snow piles created by defendants’ plowing practices … , we conclude that plaintiff’s assertion is based on mere speculation and thus is insufficient to raise an issue of fact … . Indeed, in surmising that there must have been snow piles throughout the parking lot from prior accumulations, plaintiff relied upon inadmissible printouts from a weather data website … , as well as defendants’ general practices regarding snow removal as set forth in their contract … . The record is devoid of competent evidence that any such snow piles existed or, more specifically, that a pile of snow was located near the area of the parking lot where plaintiff fell that had melted and had then refrozen prior to the storm, resulting in the icy condition that caused plaintiff’s accident … . Finally, to the extent that plaintiff contends that defendants’ snow removal efforts created the hazardous condition because they did not properly care for the area where she fell even though they had treated other areas of the parking lot during the storm, we note that it is well settled that ” [t]he mere failure to remove all snow and ice from a . . . parking lot does not constitute negligence’ and does not constitute creation of a hazard” … . Hanifan v Cor Dev. Co., LLC, 2016 NY Slip Op 07498, 4th Dept 11-10-16

NEGLIGENCE (STORM IN PROGRESS RULE REQUIRED SUMMARY JUDGMENT TO DEFENDANT IN THIS SLIP AND FALL CASE, FAILURE TO REMOVE ALL SNOW FROM A PARKING LOT DOES NOT CREATE A HAZARD)/STORM IN PROGRESS (STORM IN PROGRESS RULE REQUIRED SUMMARY JUDGMENT TO DEFENDANT IN THIS SLIP AND FALL CASE, FAILURE TO REMOVE ALL SNOW FROM A PARKING LOT DOES NOT CREATE A HAZARD)/SLIP AND FALL (STORM IN PROGRESS RULE REQUIRED SUMMARY JUDGMENT TO DEFENDANT IN THIS SLIP AND FALL CASE, FAILURE TO REMOVE ALL SNOW FROM A PARKING LOT DOES NOT CREATE A HAZARD)

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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.

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)

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