Troy v. North Collins Central School District ( 1999 )

—Order unanimously reversed on the law without costs, motion denied and complaint and cross claims against defendant Lackawanna City School District reinstated. Memorandum: Defendant Lackawanna City School District (Lackawanna) formulated an individual education program (IEP) for plaintiffs 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 plaintiffs son should be enrolled in a technology class. Plaintiffs 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 plaintiffs 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 NY2d 370, 378) and thus whether Lackawanna owed plaintiffs 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 plaintiffs 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 AD2d 710, 711, quoting Lane v City of Buffalo, 232 App Div 334, 338). The proof submitted in opposition to the motion establishes that Lackawanna was aware that plaintiffs son suffered from cerebral palsy and a seizure disorder but did not so indicate on his IEP. (Appeals from Order of Supreme Court, Erie County, Flaherty, J. — Summary Judgment.) Present — Green, J. P., Lawton, Pigott, Jr., Scudder and Callahan, JJ.