Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of defendant New York City Department of Education for an order, pursuant to CPLR 3211 (a) (7) or CPLR 3212, dismissing Plaintiffs' Verified Complaint:

Plaintiffs allege that on November 10, 2003, while the infant plaintiff was a student at The League School in Brooklyn, where he was placed by the New York City Department of Education, he was injured by the Crisis Coordinator at the School. The Verified Complaint alleges five causes of action on behalf of the infant - - for assault, battery, negligent hiring, and negligence - - and a derivative cause of action on behalf of his mother for loss of services. In addition to the City, the Crisis Coordinator is "named" as a defendant as "Jane Doe," but she has not appeared in the action.

The City now moves for dismissal on the grounds that it "did not own, operate, maintain, control, or manage" The League School (see Affirmation in Support, ¶ 4), and that "[t]here are no employees hired by the New York City Department of Education that work at the League School" (see Reply Affirmation, Exhibit 1, ¶ 3.) Other than an Affidavit that addresses employee status at the School (see id.), the only "evidence" submitted in support of the motion is [*2]a printout from the website of the Office of Vocational and Educational Services for Individuals with Disabilities within the State Education Department, which lists The League School as an "approved private day school," and a printout from the website of Community Board No. 9, which lists the School among schools "Private / Parochial Grades 1 to 12."

Plaintiffs do not challenge the evidentiary value of the website printouts (see Secretary of the Department of Housing and Urban Development v Torres, 2 Misc 3d 53, 54-55 [App Term, 2d Dept 2003]), nor do they otherwise challenge the City's contentions that The League School is not a public school and that the School's employees, including presumably the Crisis Coordinator, are not City employees. Rather, Plaintiffs establish with the affidavit of the plaintiff mother and a copy of a December 8, 2003 letter to her from the District 17 Committee of Special Education that the infant plaintiff had been classified as "emotionally disturbed," and that an "interim placement" at The League School was "recommended." (See Affidavit in Opposition and exhibit.)

The City relies on two Appellate Division decisions that involve students injured by employees of the Police Athletic League. (See Jonathan A. v Board of Education of the City of New York, 8 AD3d 80 [1st Dept 2004]; Olivia v City of New York, 297 AD2d 789 [2d Dept 2002].) One of the cases does not appear to involve the City's Department (or Board) of Education, and "the City demonstrated the absence of any triable issue of fact with respect to its claim that [the offending counselor] was not an employee of the City." (See id., at 790.) In the other case, "[t]he [Board of Education's] only role with regard to the [after-school] program was to issue PAL - - an established, bona fide and insured community-based organization - - a permit to operate the program on school property after school hours." (See Jonathan A. v Board of Education of the City of New York, 297 AD2d at 80-81.) "Although plaintiff was a student at P.S. 57, . . . at the time the abuse occurred, he was in the custody not of the Board, but of PAL." (See id., at 81, footnote.)

The City's duty of care to its students, however, extends beyond its "physical custody" to its "orbit of authority" (see Chainani v Board of Education of the City of New York, 87 NY2d 370, 378 [1995]), and to the conduct of its independent contractors when they are discharging a "nondelegable duty" of the City, i.e. "a particular responsibility . . . imposed . . . by statute or regulation" (see id., at 381.) The City makes no showing here as to its relationship generally with The League School, or its particular relationship with the School concerning the education of the infant plaintiff.

In Troy v North Collins Central School District (267 AD2d 1023 [4th Dept 1999]), the Fourth Department denied summary judgment to a school district that had "formulated an individual education program (IEP) for plaintiff's disabled son as mandated by Education Law article 89," and "monitored and enforced" the implementation of the plan at a school in another school district, where the son was injured in a technology class while operating a miter saw (see id., at 200.) The court saw "a triable issue of fact whether plaintiff's son was within [the first school district's] orbit of authority' by virtue of [its] statutory duty to formulate and enforce the

IEP . . . and thus whether [the first school district] owed plaintiff's son a duty of care in [*3]supervising and controlling him." (See id. [quoting Chainani v Board of Educ., 87 NY2d at 378].)

There are, undoubtedly, differences between the facts of Troy and those alleged here. But for purposes of the City's motion, what is significant is Troy's implicit recognition that a school district's statutory duties of "indentification, evaluation, educational placement [and] provision of a free appropriate public education" to each "student with a disability" (see Education Law § 4402, sub. 1 b [1] [d]) may provide the foundation for a common-law duty to protect the student from harm. The factual differences between Troy and this case, as established for purposes of this motion by Plaintiffs' allegations and the City's showing, do not warrant summary judgment to the City.

Whether considered a deficiency in the City's prima facie showing or Plaintiffs' raising of a triable issue, the record on this motion does not permit a conclusion that, as a matter of law, the City owed no duty to Plaintiffs relating to the infant plaintiff's placement at The League School. Nor, in the absence of any showing by the City on the questions, does the record permit a conclusion that Plaintiffs will not be able to establish the other elements of tort liability on the part of the City for, what Plaintiffs allege, was an intentional harm by the Crisis Coordinator.

It is apparent that the City in the first instance is in the better position to provide information on its relationship generally with The League School, and particularly concerning the infant plaintiff's placement. The record on this motion is silent on the disclosure to date, if any, concerning these matters.

The City's motion is denied, with leave to renew after appropriate discovery.

March 19, 2007___________________

Jack M. Battaglia

Justice, Supreme Court