Grant v. Nembhard

• Citation: 943 N.Y.S.2d 272,94 A.D.3d 1397,2012 N.Y. Slip Op. 03263
• Parties: Kenietra GRANT, Individually and as Parent and Guardian of Jayleen K. Munoz, an Infant, Respondent–Appellant, v. Estevan W. NEMBHARD, Respondent–Appellant,andLydia Tyner, Appellant–Respondent,andSharnique L. Reynolds et al., Respondents.
• Decision Date: 26 April 2012
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03263

94 A.D.3d 1397

943 N.Y.S.2d 272

Kenietra GRANT, Individually and as Parent and Guardian of Jayleen K. Munoz, an Infant, Respondent–Appellant,

v.Estevan W. NEMBHARD, Respondent–Appellant,andLydia Tyner, Appellant–Respondent,andSharnique L. Reynolds et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

April 26, 2012.

O'Connor, McGuinness, Conte, Doyle, Oleson, Watson & Loftus, White Plains (Montgomery L. Effinger of counsel), for appellant-respondent.

John T. Casey Jr., Troy (Joseph E. O'Connor of counsel), for Kenietra Grant, respondent-appellant.

Morris, Duffy, Alonso & Faley, New York City (Anna J. Ervolina of counsel), for Estevan W. Nembhard, respondent-appellant.Spiegel, Brown, Fichera & Cote, Poughkeepsie (Timothy W. Kramer of counsel), for Sharnique L. Reynolds, respondent.Thorn, Gerson, Tymann, Bonanni, L.L.P., Albany (Harry Steinberg of Lester, Schwab, Katz & Dwyer, New York City, of counsel), for Service Employees International Union, respondent.

Before: MERCURE, J.P., LAHTINEN, SPAIN, McCARTHY and GARRY, JJ.

LAHTINEN, J.

Cross appeals from an order of the Supreme Court (Zwack, J.), entered September 12, 2011 in Ulster County, which, among other things, granted defendant Sharnique L. Reynolds' motion for summary judgment dismissing the complaint against her.

This case arises from a motor vehicle accident that occurred on May 11, 2008, shortly before 4:00 A.M., on the northbound side of Interstate 87 in the Town of Tuxedo, Orange County. Defendant Sharnique L. Reynolds was traveling north and, shortly after allegedly passing a rest stop, she pulled the vehicle she was driving onto the shoulder and stopped because she had a headache and was drowsy. A vehicle driven by defendant Estevan W. Nembhard, and co-owned by his mother, defendant Lydia Tyner, struck Reynolds' parked vehicle from behind. Plaintiff's infant daughter was seated in the rear driver's side of Reynolds' vehicle and allegedly sustained catastrophic permanent injuries in the accident.

Plaintiff commenced the instant action on behalf of herself ¹ and her child against Nembhard, Tyner and Reynolds. She subsequently amended her complaint to, among other things, add Nembhard's employer, defendant Service Employees International Union (hereinafter SEIU), upon the theory that Nembhard was acting within the scope of his employment when the accident occurred. Following disclosure, numerous motions were filed by the respective parties including, as relevant to this appeal, Reynolds' motion for summary judgment dismissing all claims against her, plaintiff's motion for partial summary judgment on the issue of liability against Nembhard, Tyner and SEIU, Tyner's cross motion for indemnification from Nembhard, and SEIU's cross motion for summary judgment dismissing claims against it. Supreme Court, among other things, granted Reynolds' motion, did not directly address and thus denied sub silento the aspect of plaintiff's motion for partial summary judgment as to Nembhard and Tyner, granted Tyner's cross motion and granted SEIU's cross motion. Plaintiff, Nembhard and Tyner appeal.

We consider first the argument of plaintiff, Nembhard and Tyner that it was error to grant Reynolds' motion for summary judgment dismissing all claims against her. Supreme Court found factual issues as to whether the manner in which Reynolds parked on the shoulder of the highway was negligent, but further determined that her car merely furnished the condition for the occurrence and was not a proximate cause of the accident. We agree with Supreme Court that there was ample evidence, when viewed mostly favorably to the parties opposing summary disposition, to raise a factual issue regarding Reynolds' negligence. We further find, however, that factual issues exist regarding proximate cause. “Proximate cause is ordinarily a factual issue for resolution by a jury and therefore it is ‘only [when] one conclusion may be drawn from the established facts [that] the question of legal cause [may] be decided as a matter of law’ ” ( Dupell v. Levesque, 198 A.D.2d 712, 713, 603 N.Y.S.2d 369 [1993], quoting Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ). As discussed at some length by the First Department in an analogous case where a driver fell asleep and hit a vehicle allegedly parked in violation of a highway rule, the issue is a close one, but it generally should be resolved by a jury ( see White v. Diaz, 49 A.D.3d 134, 134–140, 854 N.Y.S.2d 106 [2008]; but see Iqbal v. Thai, 83 A.D.3d 897, 898, 920 N.Y.S.2d 789 [2011] ). Simply stated, a reasonable jury could find that an accident of this type is a foreseeable consequence of parking on the shoulder just north of a rest area for a non-emergency reason in violation of a traffic regulation ( see 21 NYCRR 103.8 [b] ) without activating the vehicle's hazard lights in the dark early morning hours ( see White v. Diaz, 49 A.D.3d at 139, 854 N.Y.S.2d 106; see generally Dowling v. Consolidated Carriers Corp., 65 N.Y.2d 799, 493 N.Y.S.2d 116, 482 N.E.2d 912 [1985]; Ferrer v. Harris, 55 N.Y.2d 285, 293–294, 449 N.Y.S.2d 162, 434 N.E.2d 231 [1982]; O'Connor v. Pecoraro, 141 A.D.2d 443, 445, 529 N.Y.S.2d 780 [1988] ).

Plaintiff contends that she should have been granted partial summary judgment on the issue of liability as against Nembhard and Tyner.² We agree. “Where a moving vehicle is involved in a rear-end collision with a stopped vehicle, a prima facie case of negligence arises against the operator of the moving vehicle, requiring that driver to provide an adequate, nonnegligent explanation for the collision” ( Johnson v. First Student, Inc., 54 A.D.3d 492, 492–493, 863 N.Y.S.2d 303 [2008] [citations omitted] ). An eyewitness who followed Nembhard's vehicle for about 15 miles testified at a deposition that Nembhard was repeatedly swerving, so much so that the witness called 911, and he believed that Nembhard might be intoxicated. Although Nembhard was not intoxicated, he acknowledged extreme drowsiness and reportedly stated at the scene that he had fallen asleep while driving. This evidence established a prima facie case of negligence that was a proximate cause of the accident. Faced with this proof, Nembhard failed to offer a nonnegligent explanation for the accident ( see Rodriguez–Johnson v. Hunt, 279 A.D.2d 781, 782, 718 N.Y.S.2d 501 [2001] ).

Contrary to Tyner's contention, the existence of a factual issue regarding Reynolds' negligence does not preclude a finding that Nembhard was, as a matter of law, negligent and that his negligence was a proximate cause of the accident. “ ‘[T]here may be more than one proximate cause of an accident’ ” ( Bailey v. County of Tioga, 77 A.D.3d 1251, 1253, 910 N.Y.S.2d 230 [2010], quoting Ayotte v. Gervasio, 186 A.D.2d 963, 964, 589 N.Y.S.2d 372 [1992], affd. 81 N.Y.2d 1062, 601 N.Y.S.2d 463, 619 N.E.2d 400 [1993] ). If a jury ultimately finds that Reynolds was also negligent and that her negligence was a substantial factor in causing the accident, then it will...