DOE v. North Tonawanda School District, Defendant-Appellant. (2005)

 Plaintiff commenced this action against Jason Lorich and his employer, the North Tonawanda School District (defendant), seeking damages for the alleged sexual abuse of plaintiff's daughter when she was a student in Lorich's third grade class.   Plaintiff alleges that defendant was negligent in that its school principal failed to protect plaintiff's daughter when he knew or should have known that she was at risk of being sexually abused by Lorich.   Contrary to the contention of defendant, Supreme Court properly denied its motion for summary judgment dismissing the complaint.  “The standard to determine whether the school has breached its duty is to compare the school's supervision and protection to that of ‘a parent of ordinary prudence placed in the identical situation and armed with the same information’ ” (Dia CC. v. Ithaca City School Dist., 304 A.D.2d 955, 956, 758 N.Y.S.2d 197, lv. denied 100 N.Y.2d 506, 763 N.Y.S.2d 812, 795 N.E.2d 38, quoting Mary KK. v. Jack LL., 203 A.D.2d 840, 841, 611 N.Y.S.2d 347;  see Murray v. Research Found. of State Univ. of N.Y., 283 A.D.2d 995, 996-997, 723 N.Y.S.2d 805, lv. denied 96 N.Y.2d 719, 733 N.Y.S.2d 371, 759 N.E.2d 370).   Here, even assuming, arguendo, that defendant met its burden on the motion to establish its entitlement to dismissal of the complaint (see e.g. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Pizzuto v. Poss [Appeal No. 1], 198 A.D.2d 910, 605 N.Y.S.2d 721), we conclude that plaintiff raised a triable issue of fact whether defendant's school principal, after obtaining possession of a certain letter written by Lorich to another student, “ ‘exercise[d] the same degree of care and supervision over [plaintiff's daughter that] a reasonably prudent parent would exercise under the same circumstances' ” (Murray, 283 A.D.2d at 996, 723 N.Y.S.2d 805).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM: