A high school athlete who allegedly contracted herpes during a wrestling match narrowly lost his legal bout after an appellate panel split 3-2 in tossing the case for failure to file a timely claim.

In Candino v. Starpoint, 13-01241, the Appellate Division, Fourth Department, reversed Buffalo Supreme Court Justice John O’Donnell (See Profile), holding that the trial court should have dismissed the case. O’Donnell had allowed the matter to go forward even though the claim was lodged 19 months after the alleged incident, far beyond the 90-day notice requirement.

The case began with a high school wrestling championship match in February 2011.

The plaintiff, Joseph Candino, a student at West Seneca East Senior High School, contends he got herpes from a competitor who was infected with a highly contagious virus. It is undisputed that the competitor was infected.

Candino sought leave to file a late notice of claim in September 2012, five months after he turned 18 and nearly two years after the incident. O’Donnell granted the motion on the grounds that the several school districts named in the complaint would not be prejudiced by a late claim.

Records show that the Erie County Health Department had issued an advisory to all nearby school districts within a week of the tournament, alerting the schools that it was investigating an outbreak of skin infections among wrestlers who had participated in the event. Additionally, another wrestler with claims almost identical to Candino’s filed a timely notice of claim.

Regardless, Fourth Department justices John Centra (See Profile), Stephen Lindley (See Profile) and Rose Sconiers (See Profile), said Candino “offered no excuse, reasonable or otherwise, for failing to serve a timely notice of claim.” The majority rejected the plaintiff’s assertion that the health department investigation and the claim by the other wrestler provided the defendants with adequate notice.

“Here, claimant’s proof in support of his application establishes, at most, that respondents had constructive knowledge of his claim,” the majority said in a memorandum. “In other words, there is nothing in the notice of claim by the other wrestler who was infected at the tournament or [the health department advisory] that gave respondents actual knowledge that claimant was similarly injured.”

Justices Eugene Fahey (See Profile) and Gerald Whalen (See Profile) dissented, arguing that the defendants had actual knowledge of the facts surrounding the claim.

“In our view, the opportunity to investigate provided by the health advisory, and the investigation that such advisory should have triggered, ameliorate the potential prejudice to the [defendants],” Fahey and Whalen said. “At a minimum, there is a question of fact whether the [host of the tournament] exercised sufficient control over the tournament and whether that control created a duty to claimant upon which their legal responsibility could be based.”

John Collins of Lipsitz Green Scime Cambria in Buffalo represented Candino. Appearing for the various school district defendants were: Louis Dingeldey Jr. of Baxter Smith & Shapiro in West Seneca, Jenna Klucsik of the Sugarman Law Firm in Syracuse, and Jeremy Colby of Webster Szanyi in Buffalo.

The Fourth Department also issued divided opinions recently in two labor law cases—one involving a plaintiff who claims he fell off a ladder and another centered on a worker who fell on a flat roof.

Ridge v. Gold, 13-00908, the ladder case, arose from Buffalo. The court split 3-2 in reversing the trial court and dismissing the complaint on collateral estoppel grounds. Steven Ridge alleged he was injured when he fell from a ladder while working on a home owned by two women.

After the Workers’ Compensation Board determined that Ridge lacked credibility and the accident, as alleged by the laborer, never happened, the plaintiff brought a labor law and common law negligence action against the homeowners and general contractor.

The contractor moved for summary judgment, but Erie County Supreme Court Justice Tracey Bannister denied the motion. The Fourth Department reversed, holding that Ridge already had one chance to make his case and is not entitled to another.

“[P]laintiff failed to establish that he did not have a full and fair opportunity to litigate the issue whether an accident in fact occurred in the prior proceeding,” justices Centra, Carni and Erin Peradotto said in a memorandum. “Plaintiff, who was represented by counsel, had notice of the issue prior to the hearing, testified at the hearing, and had the opportunity to cross examine the witnesses against him.”

Justices Sconiers and Whalen dissented.

“[W]e note that the [Workers' Compensation Board] found in its decision ‘that no accident occurred as [plaintiff] has alleged, based on [his] lack of credibility,’ which is not equivalent to a finding that no accident occurred at all,” the dissenters said.

Carlton Brownell III of the Sugarman Law Firm argued for the defendant. Ridge was represented by Aaron Glazer of Gibson, McAskill & Crosby in Buffalo.

The slip-on-the-roof case, Hargrave v. LeChase Construction, 13-00925, also sparked a dissent. That case began when Garrett Hargrave tripped on a piece of insulation while walking backwards on a roof.

Records show that Hargrave was dragging materials from one section of a flat high school roof to another when he tripped on a piece of old insulation that had blown into his path. Hargrave sued the construction manager, LeChase Construction, claiming it was liable as an agent of the school district. Supreme Court Justice Norman Seiter Jr. (See Profile) dismissed one of the two labor law claims. The Fourth Department majority said he should have dismissed both.

Presiding Justice Henry Scudder (See Profile) along with justices Centra, Carni and Sconiers said there was insufficient evidence that LeChase had supervisory control.

“The deposition testimony and affidavits submitted by defendant established that defendant acted in accordance with its authority under the contract, i.e., coordinating the schedules of the contractors and ensuring that their work complied with the requirements of the construction documents, and did nothing more,” the majority said.

Whalen dissented, arguing that a question of fact remained as to the degree of LeChase’s supervisory control.

L. Damien Costanza of Osborn, Reed & Burke in Rochester argued for the defendant. The plaintiff was represented by Michael Kenny of Kenny & Kenny in Syracuse.