Mamadou S. v Feliciano

Mamadou S. v Feliciano 2014 NY Slip Op 08909 Decided on December 23, 2014 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 23, 2014
Tom, J.P., Friedman, Renwick, Manzanet-Daniels, Kapnick, JJ.
13816 24262/04

[*1] Mamadou S., A child by his parents and legal guardians Khalil S., and Khadiatou C., Plaintiff-Appellant,

v

Mary Feliciano, Defendant, The City of New York, et al., Defendants-Respondents.

DeToffol & Associates, New York (David J. DeToffol of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Hanh H. Le of counsel), for respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered July 22, 2013, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint as against defendant The Board of Education of the City of New York (BOE), unanimously reversed, on the law, without costs, and the motion denied as to BOE.

Plaintiff, at the time an eighth grade student, was injured when he darted or was pushed into the street and was hit by a car while playing tag in front of his school. Although the driver of the car was not negligent in causing the accident (Sakho v City of New York, 88 AD3d 581 [1st Dept 2011]), the record presents issues of fact as to whether defendant BOE owed a duty of care to protect the infant plaintiff from traffic hazards after he was discharged by the school bus in front of the school, five minutes before the school day would begin (see Pratt v Robinson, 39 NY2d 554, 560-561 [1976]; Thai v Roman Catholic Church of St. Nicholas of Tolentine, 34 [*2]AD3d 225 [1st Dept 2006]), and whether that duty was breached by the school's failure to provide adequate safety measures, such as traffic barricades, proximately causing the injury (Mirand v City of New York, 84 NY2d 44, 49 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 23, 2014

CLERK