| Ferraro v North Babylon Union Free School Dist. |
| 2010 NY Slip Op 00095 [69 AD3d 559] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Christopher Ferraro et al.,Respondents-Appellants, v North Babylon Union Free School District, Respondent, andWestern Suffolk BOCES, Appellant-Respondent. |
—[*1] Robert E. Dash, Syosset, N.Y. (Rachel L. Kaufman of counsel), for respondents-appellants. Donohue, McGahan, Catalano & Belitsis, Jericho, N.Y. (Randi M. Seidner and Jonathan R.Ames of counsel), for defendant-respondent.
In an action to recover damages for personal injuries, etc., the defendant Western SuffolkBOCES appeals, as limited by its brief, from so much of an order of the Supreme Court, SuffolkCounty (Molia, J.), entered December 22, 2008, as denied that branch of its motion which wasfor summary judgment dismissing so much of the complaint as alleged negligent supervisionagainst it, and the plaintiffs cross-appeal, as limited by their brief, from so much of the sameorder as granted that branch of the motion of the defendant North Babylon Union Free SchoolDistrict which was for summary judgment dismissing so much of the complaint as allegednegligent supervision against it and denied their cross motion to vacate the note of issue andcertificate of readiness and to compel the defendant Western Suffolk BOCES to produce certaindocuments pursuant to CPLR 3124.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one billof costs to the defendant North Babylon Union Free School District, payable by the plaintiff.
The infant plaintiff, who suffers from developmental delays and other disabilities, allegedthat he was injured when he caught one of his fingers in the hinge of a heavy, self-closing door ata school in the defendant North Babylon Union Free School District (hereinafter the district)while attending a special education program operated by the defendant Western Suffolk BOCES(hereinafter BOCES). He commenced this action against both the district and BOCES, alleging,inter alia, negligent supervision, claiming that he should not have been permitted to operate thedoor without supervision or assistance.
A school's duty to supervise a child is "coextensive with and concomitant to its [*2]physical custody of and control over the child" (Pratt vRobinson, 39 NY2d 554, 560 [1976]). However, "[w]hen that custody ceases because thechild has passed out of the orbit of its authority . . . the school's custodial duty alsoceases" (Pratt v Robinson, 39 NY2d at 560). Although a school has a statutory duty toprovide special education services to children who require them (Matter of Northeast Cent.School Dist. v Sobol, 79 NY2d 598, 606 [1992]), where the school has appropriately"contracted-out" that duty, it "cannot be held liable on a theory that the children were in [theschool's] physical custody at the time of injury" (Chainani v Board of Educ. of City ofN.Y., 87 NY2d 370, 379 [1995]).
Here, the district discharged its duty to provide the infant plaintiff special education servicesby arranging for him to attend a program provided by BOCES. Since the infant plaintiff passedoutside the district's orbit of authority while attending the BOCES program, the Supreme Courtproperly granted that branch of the district's motion which was for summary judgmentdismissing so much of the complaint as alleged negligent supervision against it.
Although schools are not held to a standard of "perfection in supervision," they nevertheless" 'owe[ ] it to [their] charges to exercise such care of them as a parent of ordinary prudencewould observe in comparable circumstances' " (Lawes v Board of Educ. of City of N.Y.,16 NY2d 302, 304-305 [1965], quoting Hoose v Drumm, 281 NY 54, 57-58 [1939]). Inthis regard, "[s]chools are under a duty to adequately supervise the students in their charge andthey will be held liable for foreseeable injuries proximately related to the absence of adequatesupervision" (Mirand v City of New York, 84 NY2d 44, 49 [1994]).
Although BOCES met its prima facie burden of showing that it adequately supervised theinfant plaintiff, in opposition the plaintiffs raised a triable issue of fact. The infant plaintiff'sserious developmental delays and other disabilities documented in his IEP raised a triable issueof fact as to whether BOCES was negligent in permitting him to operate a heavy, self-closingdoor without supervision or assistance (see Rodriguez v Board of Educ. of City of NewYork, 104 AD2d 978, 978-979 [1984]).
A motion for vacatur of the note of issue and certificate of readiness made more than 20 daysafter their filing will be granted only where "a material fact in the certificate of readiness isincorrect" or upon "good cause shown" (22 NYCRR 202.21 [e]). To satisfy the requirement of"good cause," the party seeking vacatur must "demonstrate that unusual or unanticipatedcircumstances developed subsequent to the filing of the note of issue and certificate of readinessrequiring additional pretrial proceedings to prevent substantial prejudice" (White v Mazella-White, 60 AD3d1047, 1049 [2009], quoting UticaMut. Ins. Co. v P.M.A. Corp., 34 AD3d 793, 794 [2006]). Here, the plaintiffs neitherproffered an excuse for their delay (id. at 794), nor "demonstrate[d] . . .unusual or unanticipated circumstances" (White v Mazella-White, 60 AD3d at 1049).Accordingly, the court properly denied that branch of the plaintiffs' cross motion which was tovacate the note of issue and certificate of readiness.
The remaining contentions of BOCES are without merit. Fisher, J.P., Angiolillo, Dickersonand Leventhal, JJ., concur.