Opinion
Index 21238/2018E
03-09-2021
REHJAUNNI B. WALKER v. UBER TECHNOLOGIES, INC., RASIER, LLC, AND RAS1ER-NY, LLC, JUAN C. RODRIGUEZ, and WALBOURNE LEWIS
Unpublished Opinion
MARY ANN BRIGANTTI, J.S.C.
The following NYSCEF docs numbered 35 to 59 and 62 were read on this motion (NYSCEF and CASE MANAGEMENT Seq. No. 2) for DISMISSAL noticed on September 17, 2020 and submitted on November 27, 2020.
| Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed | NYSCEF No(s). 35-52 |
| Answering Affidavit and Exhibits | NYSCEF No(s). 53-59 |
| Replying Affidavit and Exhibits | NYSCEF No(s). 63 |
Upon the foregoing papers, defendants, Uber Technologies, Inc. ("Uber"), Rasier, LLC, and Rasier-NY LLC ("Rasier') (collectively "moving defendants") move for an order pursuant to CPLR §3211 (a)(1) and CPLR §3211 (a)(7), dismissing plaintiffs complaint and all cross-claims against them. The motion is opposed.
The cause of action is for personal injuries allegedly sustained by the plaintiff in a motor vehicle accident that occurred on August 6, 2017 wherein the vehicle operated by defendant Juan C. Rodriguez ("Rodriguez") struck the rear of the vehicle operated by defendant Walbourne Lewis ("Lewis"), in which the plaintiff was a passenger.
Moving defendants refer to plaintiffs Verified Complaint wherein plaintiff alleges that at the time of the accident, Lewis operated a 2010 Infinity vehicle as an employee or agent of the moving defendants acting "in furtherance of his employer's and/or principals [sic] business." Plaintiff alleges that the moving defendants owned, leased, and/or maintained, repaired, and upkept Lewis" vehicle. However, the moving defendants assert that they did not owe or breach a duty to the plaintiff since they did not have a "relationship to the alleged incident."
The moving defendants explain that Uber is a global technology company with headquarters in San Francisco, California that provides individual consumers in needs of goods and services with those willing to provide them. More specifically, through the Uber App, individuals in need of a ride are connected with independent transportation providers willing to provide such transportation. After completing all the necessary steps required to gain access to the Uber Apps, riders and drivers are able to connect. The moving defendants license use of the driver App from Uber and sub-license its use to independent drivers who have signed up for platform access. After completing the sign-up process, independent drivers use the driver App to connect with potential riders in the rider App. However, in this case, Lewis was not signed up to use the driver App on the date of the accident and could not have connected with any potential riders through the Uber Apps.
The moving defendants argue that the complaint should be dismissed against them and in support of the motion they submit the affidavit of Todd Gaddis ("Mr. Gaddis"), a Manager, Data Analytics for Uber in San Francisco, California, and Alejandra Vasquez ("'Ms. Vasquez"), a Senior Paralegal with Uber, both of whom reviewed Uber's records. The moving defendants contend that a potential independent driver must sign up, submit a valid driver's license, register a vehicle, submit insurance information, proof of residency, a photograph, and consent to and pass a criminal background check and motor vehicle history search. The potential driver must also execute a Technology Services Agreement which grants drivers a software license to utilize the driver App. Moreover, New York City local law requires that a potential driver submit their Taxi and Limousine Commission ("TLC") license which also has its own set of requirements. In order for moving defendants to receive their service fee in a given transaction, the independent driver must have connected with a rider through the Apps and arranged a trip after the Apps connected them.
According to Mr. Gaddis, Lewis did not have access to the driver version of the Uber App on the date of the accident. He previously had access to the driver version of the Uber App but was then "waitlisted" as of November 2, 2016 for not having a registered vehicle on the platform. He was not “reactivated" until October 12, 2017, two months after the accident. Therefore, if Lewis was not using the driver App at the time of the accident, he could not have been acting pursuant to his employment or in furtherance of his employer's business. As such, plaintiffs claims of negligent hiring, retention, and training are irrelevant if Lewis was not logged into or using the driver App at the time of the subject accident. Movants contend that Lewis admitted to the above in the Notice to Admit which they served him with. The moving defendants submit Supreme Court cases from Kings County and Queens County in support of their motion.
Additionally, the moving defendants claim that they did not own, operate, repair, manage, maintain, control or register the Lewis vehicle involved in the accident. They aver that Lewis admitted to same in the Notice to Admit which they served upon him. Finally, the moving defendants request that sanctions be imposed upon plaintiff for filing the frivolous action against them knowing that the claim against them was without merit.
Plaintiff opposes the motion and argues that it is premature in that no depositions have been held and "very little" discovery has been exchanged. Plaintiff refers to the affidavit of Ms. Vasquez, wherein she states that she reviewed Uber's records in support of the motion to dismiss but no such records were exchanged with plaintiff. Moreover, in the Supreme Court cases referred to by the moving defendants, sworn testimony or statements from the drivers were submitted in support of their motions to dismiss whereas in this case, the moving defendants failed to present any testimony from the driver. Plaintiff submits two cases from Bronx Supreme Court wherein the court denied the motion to dismiss as against Uber with leave to renew upon completion of discovery. The plaintiff argues that since they have little information about the driver and the moving defendants, and the information is within the exclusive control of the defendants, the motion to dismiss should be denied.
In reply, the moving defendants argue that no further discovery is required and that Lewis' access to the driver App is uncontested. Moreover, plaintiff failed to address the Notice to Admit.
On a motion to dismiss pursuant to CPLR §3211, "...the pleading is to be afforded a liberal construction.. .We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory..." Leon v. Martinez, 84 N.Y.2d 83 (1994). Moreover, "'Under CPLR 3211 (a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law..." Id. at 88.
Contrary to the moving defendants' contention, the documentary evidence submitted, namely the affidavits of Mr. Gaddis and Ms. Vasquez, do not "irrefutably establish" that Lewis was not driving for Uber on the date of the accident, (see, Correct v. Orient-Express Hotels, Inc., 84 A.D.3d 651 [1st Dept. 2011]). Affidavits do not constitute ''documentary evidence" for purposes of a motion to dismiss pursuant to CPLR 3211(a)(1) (see Bou v. Llamoza, 173 A.D.3d 575 [1st Dept. 2019]). Additionally, this court finds that the motion to dismiss is premature at this time and plaintiff should be permitted to conduct further discovery as to the critical facts that may be in the exclusive possession of the defendants, (see, Marcus v. Hemphill Harris Travel Corp., 193 A.D.2d 543 [1st Dept. 1993]). While defendants provide a notice to admit, same is not intended to "obtain information in lieu of other disclosure devices" such as taking of depositions before trial (Taylor v. Blair, 116 A.D.2d 204, 206 [1st Dept. 1986]).
Accordingly, the motion by the moving defendants to dismiss plaintiffs complaint and all cross-claims is denied without prejudice and with leave to renew, if appropriate, upon completion of discovery.
This constitutes the Decision and Order of this Court.