
    Kim Swiderski, by her Parent and Natural Guardian, Rita Swiderski, Petitioner, v Board of Education—City School District of Albany, Respondent.
    Supreme Court, Special Term, Albany County,
    September 5, 1978
    APPEARANCES OF COUNSEL
    
      Garry, Cahill, Edmunds & Breslin (Neil D. Breslin of counsel), for petitioner. Stephen W. Herrick for respondent.
   OPINION OF THE COURT

Edward S. Conway, J.

This a motion by the petitioner for an order pursuant to section 4409 of the Education Law allowing her daughter, Kim Swiderski, to participate in high school athletics. The petitioner is the parent and natural guardian of Kim Swiderski who is currently attending Albany High School in her first year at said school.

Kim Swiderski has defective vision in her right eye because of a congenital cataract and an underdeveloped optic nerve. This condition has existed since birth.

The petitioner requests this court to allow her child to participate in athletics at Albany High School as being in the best interest of her said child. The petitioner presents to the court two affidavits of Alexander Filipp, M.D. and Harry M. Judge, M.D. in support of her application.

The school district opposes the motion and relies on a letter of Dr. Margaret Ann Krikker, School District Physician. The school district also opposes petitioner’s request for relief because of its concern that any injury to her good eye could result in liability to the school district.

This court is satisfied that it is in the best interest of the student to participate in an athletic program and that it is reasonably safe for her to do so as hereinafter provided.

This court, after considering the affidavits of the doctors set forth by the petitioner, grants the petition in the best interest of the child, provided that her eyes are protected at all times by protective eye shields prescribed by her doctor. The order shall contain a provision that the school district shall not be held liable for any injury sustained by the petitioner’s daughter, as prescribed by section 4409 of the Education Law.  