SUPREME COURT : COUNTY OF CHAUTAUQUA

DALE H. SPETA and KIMBERLY J. SPETA

Individually and as Parents and

Natural Guardians of MELISSA A.

SPETA, an Infant,

Petitioners,

-vs- Index #H-09587

FALCONER CENTRAL SCHOOL DISTRICT,

Respondent.

JOSEPH C. DWYER, P.C.

(Joseph C. Dwyer, Esq.

of Counsel) for Petitioners

SAPERSTON & DAY, P.C.

(Katherine B. Roach, Esq.

of Counsel) for Respondent

DECISION and ORDER

GERACE, J.

This is a motion for permission to file a late notice of

claim on behalf of a 15 year old infant for injuries she received on March 29, 1993, while trying to perform a maneuver known as a "kip up" in a gym class. Over 6 months later, an attorney was retained. Another eight months passed and in June, 1994, an action and this petition for late filing were put in motion.

The Court denied, with prejudice, the motion of the parents for permission to file a late notice of claim and permitted depositions to determine whether there has been any prejudice to the school.

Plaintiff asks the Court to allow the late filing because

(1) she was an infant and had no knowledge of the requirements

relating to filing claims (2) that the school will not be

prejudiced.

The proposed notice of claim alleges the school was

negligent because (1) of failure to adequately supervise and

oversee the students who are performing gymnastic maneuvers (2) failure to adequately instruct and demonstrate proper technique; failure to adequately train gym teachers; (3) failure to provide adequate medical attention (4) demanding the performance of an unrecognized gymnastic maneuver, i.e., the "kip up".

There is nothing in the papers or depositions to support any of these allegations; no affidavit by the infant or anyone else that supervision, instruction, demonstration or training of teachers was lacking; nothing to suggest medical attention was inadequate - in fact, the depositions indicate otherwise.

There was nothing to show that the "kip up" was an

unrecognized gymnastic maneuver, nor that the performance was

demanded; in fact, there is testimony by a student that "you

could try it yourself if you wanted to. I believe she was trying it on her own" and "at the time he asked us if, you know, we felt confident trying it ourselves". See Page 25, Sari Raeon Deposition.

Even if plaintiff had established there was merit to the

claim, the depositions reveal that the teachers and students had difficulty recalling the incident; result: the school would not have been able to investigate the case effectively 14 months after the accident. See POWELL V. GATES, 36 AD2d 220, 319 NYS2d 650 (4th Dept).

The school officials had no idea a claim would be made;

there was nothing in any of insurance papers filed for medical

bills to suggest negligence; thus, no investigation was

undertaken.

Falconer school would be prejudiced by permitting the filing of this late claim. The motion is denied, without costs.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO FURTHER ORDER

SHALL BE NECESSARY.

Dated: February 21, 1995

Mayville, New York

JOSEPH GERACE

Justice of Supreme Court

TAKE NOTICE THAT THE ORIGINAL OF THIS

DECISION AND ORDER HAS BEEN DULY FILED

IN THE OFFICE OF THE COUNTY CLERK ON

THE DAY OF FEBRUARY, 1995.

Linda A. Williams

Secretary to Justice

Joseph Gerace