Opinion
November 15, 1991
Appeal from the Supreme Court, Onondaga County, Reagan, J.
Present — Callahan, A.P.J., Denman, Green, Pine and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied defendant's motion for summary judgment. Defendant Board of Education owed the infant plaintiff the duty to supervise his activities with the same degree of care as would a reasonably prudent parent under the circumstances (see, Lawes v. Board of Educ., 16 N.Y.2d 302, 305; Merkley v. Palmyra-Macedon Cent. School Dist., 130 A.D.2d 937, 938; Ehlinger v. Board of Educ., 96 A.D.2d 708). In this case, there is a material issue of fact whether the infant plaintiff's teacher provided his students any supervision or instruction during the fire drill in which plaintiff was injured. In addition, under the circumstances of this case, whether the teacher's action or inaction was a proximate cause of plaintiff's injury is a question that should be left to the trier of fact (see, Luis v. Church of St. Angela Merici, 52 A.D.2d 352, 353; see also, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 314-315, rearg denied 52 N.Y.2d 784, 829; Merkley v. Palmyra-Macedon Cent. School Dist., supra, at 939; Alferoff v. Casagrande, 122 A.D.2d 183, 184). Moreover, in opposition to defendant's motion, plaintiffs tendered the affidavit of another student who asserted that, at the time of the accident, the instructor was absent from the room. That statement raises a factual issue concerning the adequacy of the supervision that defendant provided (see, Lorenzo v. Monroe Community Coll., 72 A.D.2d 945).