Opinion
No. 202 SSM 34.
Decided September 2, 2010.
APPEAL from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered March 26, 2010. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), which had granted that part of claimant's application for leave to serve a late notice of claim on respondent West Seneca Central School District. Claimant sought to commence an action against respondent school district on the ground that the district breached its duty of care to her son when he was released into a potentially hazardous situation.
Matter of Hess v West Seneca Cent. School Dist., 71 AD3d 1568, reversed.
Baxter Smith Shapiro, P.C., West Seneca ( Louis B. Dingeldey, Jr.), for appellant.
Collins Brown, LLC, Buffalo ( Charles H. Cobb of counsel), for respondent.
Before: Chief Judge LIPPMAN and Judges CIPAPJCK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, and that part of claimant's application that sought to file a late notice of claim against West Seneca Central School District (WSCSD) denied. We agree with the Appellate Division dissenters that claimant's proposed negligence claim against WSCSD patently lacks merit because WSCSD established that it did not create or have responsibility for the allegedly hazardous condition of the intersection where claimant's son was injured ( see Pratt v Robinson, 39 NY2d 554, 560; cf. Ernest v Red Cr. Cent. School Dist., 93 NY2d 664, 671; see also Matter of Catherine G. v County of Essex, 3 NY3d 175, 179 [" (1)eave is not appropriate for a patently meritless claim"]).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order reversed, etc.