Grant v. NembhardGrant v. Nembhard
KENIETRA GRANT, Individually and as Parent and Guardian of JAYLEEN K. MUNOZ, an Infant, Respondent-Appellant, v ESTEVAN W. NEMBHARD, Respondent-Appellant, and LYDIA TYNER, Appellant-Respondent, and SHARNIQUE L. REYNOLDS et al., Respondents. [943 NYS2d 272]
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
Plaintiff commenced the instant action on behalf of herself1 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 AD2d 712, 713 [1993], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). As discussed at some length by the First Department in an analogous
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 AD3d 492, 492-493 [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 AD2d 781, 782 [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 AD3d 1251, 1253 [2010], quoting Ayotte v Gervasio, 186 AD2d 963, 964 [1992], affd 81 NY2d 1062 [1993]). If a jury ultimately finds that Reynolds was also negligent and
Questions of fact exist in this record as to whether Nembhard was acting within the scope of his employment with SEIU when the accident occurred. “Although an employee is not ordinarily acting within the ‘scope of employment’ when traveling to and from work, exceptions to this rule [include where] . . . the vehicle is being utilized in furtherance of the employer‘s enterprise” (McBride v County of Schenectady, 110 AD2d 1000, 1001 [1985] [citations omitted]; see Lundberg v State of New York, 25 NY2d 467, 471 [1969]; Davis v Larhette, 39 AD3d 693, 694 [2007]; Makoske v Lombardy, 47 AD2d 284, 288 [1975], affd 39 NY2d 773 [1976]). While significant conflicting proof was presented, there was evidence that Nembhard did not work regular hours at his job as a union organizer and that he was essentially on call at all times. He traveled using his own vehicle, for which he was reimbursed mileage to and from his residence, and he often would meet with prospective union members at whatever hours or places were convenient to their schedules. Prior to the accident, he had left his hotel in Milford, Connecticut at about midnight and traveled to Bridgeport, Connecticut, where prospective union members who were employees of a nursing home were having a barbeque. He reportedly talked to attendees about the benefits of union membership and solicited names of other employees at the nursing home who might be interested in unionizing. From there, he headed toward where he claimed he resided with his grandparents in Grahamsville, Sullivan County, and the unfortunate accident occurred during this trip. The proof was sufficient to avoid summary dismissal of SEIU from the action (see McBride v County of Schenectady, 110 AD2d at 1001).
Finally, Nembhard‘s argument that the policy underlying
Mercure, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as (1) granted defendant Sharnique L.