Wexler v. Vodaath , 640 N.Y.S.2d 555 ( 1996 )

Order, Supreme Court, Kings County (Michael Peinberg, J.), entered July 12, 1995, which denied defendant-appellant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In an action to recover for personal injuries sustained by the infant plaintiff when he was struck by a car on the street in front of appellant elementary school shortly after school dismissed four hours earlier than usual, issues of fact exist precluding summary judgment at this early stage of the proceedings, including whether the school notified the child’s parents of the early dismissal or otherwise caused the child to "pass[ ] out of the orbit of its authority in such a way that the parent [was] perfectly free to reassume control over the child’s protection” (Pratt v Robinson, 39 NY2d 554, 560), whether a parent of ordinary prudence would have exercised a greater degree of supervision under circumstances that, while not yet fully explored, involved an 11-year old apparently playing near a street (cf., Gattyan v Scarsdale Union Free School Dist. No. 1, 152 AD2d 650), and whether the school had knowledge of prior similar accidents or otherwise had reason to anticipate an accident of this type in the absence of supervision (see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). Concur— Rosenberger, J. P., Rubin, Nardelli and Tom, JJ.