TROY v. Lackawanna City School District, Defendant-Respondent, et al., Defendant.

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Supreme Court, Appellate Division, Fourth Department, New York.

Elizabeth TROY, Individually and as Parent and Natural Guardian of Richard Fletcher, Plaintiff-Appellant, v. NORTH COLLINS CENTRAL SCHOOL DISTRICT, Defendant-Appellant, Lackawanna City School District, Defendant-Respondent, et al., Defendant.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Christopher C. Kerr, New York City, for Plaintiff-Appellant. Richard T. Saraf, Buffalo, for Defendant-Appellant. Mark F. Scarcello, Rochester, for Defendant-Respondent.

Defendant Lackawanna City School District (Lackawanna) formulated an individual education program (IEP) for plaintiff's disabled son as mandated by Education Law article 89.   The IEP, implemented by BOCES at a school in defendant North Collins Central School District (North Collins), but monitored and enforced by Lackawanna, provided that plaintiff's son should be enrolled in a technology class.   Plaintiff's son was injured in technology class while operating a miter saw.

Supreme Court erred in granting the motion of Lackawanna for summary judgment dismissing the complaint and cross claims against it.   Even assuming that Lackawanna met its initial burden, we conclude that plaintiff and North Collins raised a triable issue of fact whether plaintiff's son was within Lackawanna's “orbit of authority” by virtue of Lackawanna's statutory duty to formulate and enforce the IEP (Chainani v. Board of Educ., 87 N.Y.2d 370, 378, 639 N.Y.S.2d 971, 663 N.E.2d 283) and thus whether Lackawanna owed plaintiff's son a duty of care in supervising and controlling him.   Further assuming that there is a duty, we conclude that there is also a triable issue of fact whether Lackawanna was negligent in placing plaintiff's son in a situation posing a foreseeable risk of harm.  “ ‘Negligence is to be gauged by the ability of one to anticipate danger’ ” (Lauricella v. Board of Educ., 52 A.D.2d 710, 711, 381 N.Y.S.2d 566, quoting Lane v. City of Buffalo, 232 App.Div. 334, 338, 250 N.Y.S. 579).   The proof submitted in opposition to the motion establishes that Lackawanna was aware that plaintiff's son suffered from cerebral palsy and a seizure disorder but did not so indicate on his IEP.

Order unanimously reversed on the law without costs, motion denied and complaint and cross claims against defendant Lackawanna City School District reinstated.

MEMORANDUM: