Opinion
(1384) CA 01-00603.
November 9, 2001.
Appeal from Order of Supreme Court, Erie County, Mintz, J. — Summary Judgment.)
PRESENT: PIGOTT, JR., P.J., GREEN, WISNER, KEHOE AND BURNS, JJ.
Order unanimously reversed on the law without costs, motion denied and complaint reinstated.
Memorandum:
Supreme Court erred in granting defendant's motion seeking summary judgment dismissing the complaint. Plaintiffs commenced this action seeking damages for injuries sustained by Christopher Wojtowicz (plaintiff), a 16-year-old student at the Dexter Terrace Learning Center, when he was assaulted by another student in his class. It is undisputed that the teacher was present in the classroom during the altercation and the events leading up to it. Viewing the evidence in the light most favorable to plaintiffs ( see, Robinson v. Strong Mem. Hosp., 98 A.D.2d 976), we find that there is an issue of fact whether the teacher was "presented with a potentially dangerous situation and failed to take `energetic steps to intervene' in time to prevent one student from injuring another" ( Nelson v. Sachem Cent. School Dist., 245 A.D.2d 434, 435, quoting Lawes v. Board of Educ., 16 N.Y.2d 302, 305). The contention of defendant that it is entitled to summary judgment dismissing the complaint because plaintiff voluntarily entered into the altercation is made for the first time on appeal and thus is not properly before us ( see, Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985).