Preview
FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
---------------------------------------------------------------------x
DANIEL L. DAVISON, JR., Index No. 502495/2023
AFFIRMATION IN SUPPORT
OF MOTION FOR LEAVE TO
Plaintiffs, REARGUE JOINT TRIAL
ORDER
- against -
CHAOHUI KONG, UBER TECHNOLOGIES, INC., and
UBER USA, LLC,
Defendants.
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KENNETH A. McLELLAN, an attorney duly admitted to practice law in the State of New
York, and Of Counsel to the firm of WILSON, ELSER, MOSKOWITZ, EDLEMAN & DICKER,
LLP, attorneys for Defendants, UBER TECHNOLOGIES, INC., and UBER USA, LLC,
(hereinafter referred to collectively as “UBER”) affirms the truth of the following, aware of the
penalties of perjury, pursuant to CPLR 2106, and UBER submits the within Affirmation in Support
of its motion pursuant to CPLR 2221 for leave to reargue this Court’s decision of October 30,
2023, entered November 16, 2023, granting the application of Defendant independent driver
CHAOHUI KONG’s (sometimes referred to as “KONG”) motion for an Order pursuant to CPLR
602 directing a joint trial and discovery with a property damage subrogation case in another Court
where insurer GEICO General Insurance Company (sometimes referred to as “GEICO”) is the
Plaintiff. UBER asks that this Court grant leave to reargue, and, upon reargument deny
independent driver KONG’s motion in its entirety; and for such other and further relief as may be
just and proper under the circumstances.
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1. UBER submits this Affirmation in Support of its motion to reargue the October
30, 2023, order of Hon. Peter P. Sweeney, J.S.C., entered in the Kings County Clerk’s Office on
November 16, 2023. In that Order (sometimes referred to as the “Joint Trial Order”), this Court
ruled that the within action, in which Plaintiff DANIEL L. DAVISON, JR., (“DAVISON”) alleges
bodily injury as a result of a motor vehicle accident, should be joined for trial and for discovery
with a property damage subrogation action in which GEICO is the Plaintiff. We request that this
Court reconsider its decision and grant leave to reargue and, upon reargument, deny independent
driver KONG’S motion to join the two actions for discovery and trial. We also seek such other
and further relief as this Court may deem just and proper under the circumstances.
2. There are two (2) grounds supporting UBER’s request which are as follows:
(I) Anticipated Mention of the Word “Insurance” at Trial. First, the Joint Trial
Order should be reconsidered and denied because it creates a situation at trial where UBER will
be prejudiced due to the necessary mention of the word “insurance” in front of the jury. It is
undeniably clear that a jury uncovering insurance coverage in a lawsuit is strictly prohibited and
in itself is grounds for a mistrial. In fact, a motion for mistrial was just granted in Kings County in
December 2023 after counsel for the plaintiff improperly referenced insurance in front of the jury.
Diaz v. Uber Technologies, Inc., et al., Index No. 515746/2018 (Kings County). See additional
citations below.
(II) Jury Confusion. Second, to have the within action joined with a property
damage subrogation action will cause unnecessary confusion for the jury due to the joinder of
several, disparate legal theories in a joint trial. The within action involves more complex legal
issues than a typical motor vehicle accident due to allegations of vicarious liability against UBER.
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To add in a subrogation case, which requires an explanation of the nature of subrogation, brought
by a subrogee of parties who are not even named in the within action, coupled with the concepts
of alleged vicarious liability will cause unnecessary confusion for the jury1.
FACTUAL SUMMARY/NATURE OF MOTION
3. The Pleadings attached to the motion for a joint trial show that the two joined
actions in question arise out of an alleged motor vehicle accident occurring on August 21, 2022,
on Shore Parkway at or near its intersection with Knapp Street in the County of Kings, City and
State of New York.
4. At the outset, we note that the papers in the subject motion are referred to by docket
numbers in the NYSCEF electronic docket, as is permitted by New York’s Civil Practice Law and
Rules, CPLR R. 2214 (c)2.
5. The within motion for leave to reargue involves our request that this Court reverse
its Joint Trial Order and deny independent driver KONG’s motion for joint discovery and joint
trial. This Court joined for trial a motor vehicle accident involving allegations of bodily
injury claimed to have been suffered in a motor vehicle accident coupled with a property damage
subrogation action in which UBER was not named.
6. Hereafter, the bodily injury action is referred to as Action 1 and the property
damage subrogation action is referred to as Action 2.
1
UBER vehemently disputes and denies all allegations against it.
2
CPLR 2214 (c) provides, in pertinent part, “[e]xcept when the rules of the court provide otherwise, in an e-filed
action, a party that files papers in connection with a motion need not include copies of papers that were filed
previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing
system.”
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7. Action 1 is styled: Daniel L. Davison, Jr. Plaintiff, v. Chaohui Kong, Uber
Technologies, Inc., and Uber USA, LLC, Defendants. It bears Supreme Court of the State of New
York, County of Kings, Index No. 502495/2023.
8. Action 2 is styled: GEICO General Insurance Company as Subrogee of Branko
Marjanovic and Sergey Kurdenkov, Plaintiff, v. Kerry Riley, Daniel Davidson3, Chaohui Kong
and “John Doe,” Being a Fictitious Name, Defendant. It bears Civil Court of the City of New
York, County of Queens, Index No.: 003757/2023.
9. Plaintiff in Action 1, Daniel L. Davison, Jr., (“Davison”) alleges that UBER is
vicariously liable for independent driver KONG’s actions. UBER vehemently disputes and denies
this allegation, and all other allegations against it. Plaintiff Davison alleges that on August 21st,
2022, on Shore Parkway at or near its intersection with Knapp Street, a vehicle operated by
independent driver KONG and a vehicle operated by Davison came into contact with each other.
Davison claims that he was injured as a result of the contact. Further, he alleges his injuries were
caused by all the Defendants, including UBER. 4
10. Plaintiff in Action 2, GEICO General Insurance Company (“GEICO”) as Subrogee
of Branko Marjanovic and Sergey Kurdenkov, asserts that a vehicle operated by Daniel Davison5
and owned by Kerry Riley, on August 21, 2022, and a vehicle owned by independent driver KONG
3
This is believed to be a typographical error and that Plaintiff in Action 1 Daniel L. Davison, Jr. and Daniel
Davidson, Defendant in Action 2 are the same person. The license plate number of the vehicle referenced in each
action matches, namely: New York KD6074. We rely on the spelling in Action 1 provided by Plaintiff’s counsel.
4
See NYSCEF Doc. 15, Page 9, Para 48.
5
Improperly named in the subrogation action as Daniel Davidson.
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were involved in an accident that caused damages to a GEICO’s subrogors’ vehicle. GEICO
6
alleges damages of property damage and loss of use suffered by its subrogors .
PROCEDURAL HISTORY
11. For the sake of brevity and judicial economy, UBER provides an abbreviated
discussion of the procedural history necessary to adjudicate the within motion.
12. Regarding Action 1, it was commenced by a Summons and Complaint on January
24, 20237. All named Defendants interposed Answers8. This Court issued a Preliminary
Conference Order on April 27, 20239 and a Central Compliance Conference Part Order on August
9, 202310. The undersigned’s office recently substituted in as counsel for UBER, and, upon
information and belief, depositions are outstanding in both actions.
13. Counsel for independent driver KONG in Action 1, the Law Office of Nancy
Isserlis, filed a motion seeking a joint trial of Action 1 and Action 211.
14. Regarding Action 2, Plaintiff GEICO filed a Summons and Complaint in the Civil
Court of the City of New York, County of Queens. Counsel for independent driver KONG in that
action, also Ms. Isserlis’ office, interposed an Answer12.
15. This Court issued an Order on October 30, 202313, joining Action 1 and Action 2
for trial and joint discovery and the Order was entered in the Kings County Clerk’s office on
6
See NYSCEF Doc. 16, Pages 4 and 5.
7
See NYSCEF Doc. 1.
8
See NYSCEF Docs 6 and 7.
9
See NYSCEF Doc. 10.
10
See NSYCEF Doc. 12.
11
See NYSCEF Docs 13 through 17.
12
See NYSCEF Doc. 16.
13
See NYSCEF Doc. 18.
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November 16, 2023. On December 8, 2023, counsel for independent driver KONG, The Law
Office of Nancy Isserlis, filed the Order with Notice of Entry, identifying the firm of Goldberg,
Miller & Rubin, P.C., as counsel for Defendants in Action 2, Riley and Davison.
16. UBER now seeks leave to reargue, and asks that upon reargument, that this Court
reverse its decision in the Joint Trial Order, and deny the motion for a joint trial, and further, that
it issue such other and further relief as may be just and proper under the circumstances.
STANDARD FOR MOTIONS TO REARGUE
17. Motions for leave to reargue are governed by CPLR 2221. CPLR 2221(d) provides
the procedure for reargument.
18. CPLR 2221(d) states in pertinent part that:
(d) A motion for leave to reargue:
1. shall be identified specifically as such;
2. shall be based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining
the prior motion, but shall not include any matters of fact not
offered on the prior motion; and
3. shall be made within thirty days14 after service of a copy
of the order determining the prior motion and written notice
of its entry.
19. A motion for leave to reargue “is addressed to the sound discretion of the court
which made the original determination and may be granted upon a showing that the court
14
Our motion, filed on January 8, 2024, is timely in that 30 days from December 8, 2023, fell on Sunday, January 7,
2024. Under New York’s General Construction Law Section 25-a-1 and which extends the deadline to the next
business day, which is Monday December 8, 2023. See, e.g., Curto v. New York Law Journal, 144 A.D.3d 1543 (4th
Dep’t. 2016), rehearing denied, 147 A.D.3d 1462 (4th Dep’t 2017).
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overlooked or misapprehended the facts or law, or for some other reason mistakenly arrived at its
earlier determination[.]” See Eveready Ins. v. Farrell, 304 A.D.2d 830 (2d Dep’t. 2003).
DEFENDANTS UBER TECHNOLOGIES, INC., AND UBER USA, LLC,
REQUEST LEAVE TO REARGUE THIS COURT’S DECISION GRANTING A
MOTION FOR A JOINT TRIAL, AND THAT THIS COURT, UPON REARGUMENT,
DENY INDEPENDENT DRIVER KONG’S MOTION FOR A JOINT TRIAL
20. UBER respectfully requests that this Court grant leave to reargue its Joint Trial
Order, and upon reargument, that it deny independent driver KONG’s request for a Joint Trial.
The grounds for leave to reargue are (1) that the Joint Trial Order will require the mention
of “insurance” at the time of trial, since Plaintiff in Action 2 is GEICO (an insurance company),
which will cause prejudice to UBER, and (2) that the joinder will cause jury confusion of the
ultimate issues at the time of trial since it will combine the issues of negligence concerning the
operation of a motor vehicle, along with issues of alleged vicarious liability of UBER, which
UBER vehemently disputes and denies15 , along with the separate legal issue of subrogation in
Action 2.
21. Although the vocabulary and concepts associated with these issues may be
commonplace for the Court and counsel, the presentation of all these legal issues at trial will
undoubtedly be unwieldy and will cause confusion for the jury. Accordingly, independent driver
KONG’s motion for a joint trial should have been denied.
22. Counsel for independent driver KONG argued that a joint trial was warranted in a
supporting affirmation filed on August 18, 202316 relying on CPLR 602. Counsel’s briefing
misstated the issues that would be part of a joint trial of this matter. Counsel argued: “The parties
15
UBER vehemently disputes and denies all allegations against it.
16
See NYSCEF Doc. 14, at Para. 3.
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involved in these actions are either owners, operators or passengers of or in the vehicles involved,
with the exception of those parties whose causes of action are derivative.”17
23. Based on this overly general and vague description of the issues it is understandable
that the Court may not have been fully aware of the legal issues involved in Action 1, and therefore
misapprehended or overlooked the fact that Action 1 and Action 2 should not have been joined.
24. CPLR 602 (a) provides, in pertinent part:
When actions involving a common question of law or fact
are pending before a court, the court, upon motion, may
order a joint trial of any or all the matters in issue, may order
the actions consolidated, and may make such other orders
concerning proceedings therein as may tend to avoid
unnecessary costs or delay.
25. While the Court may order a joint trial, it should not where such joinder would
prejudice a substantial right18.
THE MENTION OF THE WORD INSURANCE AT A
JOINT TRIAL WILL IRREPERABLY PREJUDICE
UBER TECHNOLOGIES, INC., AND UBER USA, LLC
26. The fact that Plaintiff in Action 2, GEICO, is an insurer will create an issue where
insurance will have to be mentioned to the jury. Counsel will have to identify her client at jury
selection to inquire as to whether any prospective jurors have any opinions, positive or negative,
about GEICO and to identify any possible employees or family members of GEICO employees.
From the very beginning of the case, jurors may be of the mind that this case involves insurers
trying to avoid paying claims or merely a dispute between insurers themselves.
27. UBER will be prejudiced by any mention of the word insurance at the time of trial.
17
See NYSCEF, Doc 14, at Para. 7.
18
Amtorg Trading Corp. v. Broadway & 56th Street Assocs., 191 A.D.2d 212 (1st Dep’t. 1993).
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28. Even one mention of the word “insurance” at the time of trial is grounds for a
mistral. See Diaz v. Uber Technologies, Inc., et al., Index No. 515746/2018 (Kings County)
(motion for mistrial granted in Kings County in December 2023 where counsel for the plaintiff
made references to insurance in front of the jury); Grogan v. Nizam, 66 A.D.3d 734 (2d Dep’t.
2009). (Mistrial granted in medical malpractice case after verdict in Plaintiff’s favor where
Plaintiff’s counsel elicited testimony from his own expert that he was a consultant for an insurance
company. “Although there was only the one mention of insurance by the [plaintiff], it cannot be
said that this one instance did not have an influence on the jury.”); Johnson v. Lazarowitz, 4 A.D.3d
334, 771 N.Y.S.2d 534 (2d Dept. 2004) (where counsel for plaintiff only referred to the existence
of defendant’s insurance policies, the Second Department held that mistrial was warranted due to
the probability of prejudice.); Simpson v. Foundation Co., 201 N.Y. 479; Cosselmon v. Dunfee,
172 N.Y. 507); Hordern v. Salvation Army, 124 App. Div. 674, 676; Haigh v. Edelmeyer & M. H.
Elevator Co., 123 App. Div. 376, 380; Manigold v. Black River Traction Co., 81 App. Div. 381,
384).
29. In a case directly on point, Huerta v. Uber Technologies, Inc., et al., the court ruled
that a motion for joint trial involving a personal injury action and a property damage subrogation
action “would be too prejudicial to the Defendants, especially Defendant Uber Technologies, Inc.
and Uber USA, LLC”. Index No. 702660/2022 (Queens County) NYSCEF Doc. 38. As such, the
Court denied the motion in its entirety and issued a stay of the Civil Court subrogation action until
a final determination is made in the Supreme Court Action. Id.
30. In another case directly on point, Umar v. Douglas Lehr, et al., the court denied a
motion to consolidate a bodily injury action with a subrogation claim seeking property damage as
a result of the same six (6) car motor vehicle accident. (Umar v. Douglas Lehr, et al., 2020 N.Y.
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Misc. LEXIS 7906 at 5). While the court acknowledged that the two actions share some common
facts, they found that the property damage claim and bodily injury claim involved separate legal
issues. Id. At 3. Therefore, the court denied the motion to consolidate on the basis that
consolidation “would be prejudicial to the opposing parties and lead to unnecessary jury
confusion.” Id. at 5.
31. In an analogous case, Leonardo Moscoso, three actions arose out of a common
motor vehicle accident. Two Supreme Court, Queens County actions were personal injury actions
seeking damages for bodily injuries. The Queens Civil Court action was a property damage
subrogation matter. The Court found that joining of the subrogation action with the personal injury
actions are routinely denied on the ground that the intertwining of insurance and personal injury
actions are “highly prejudicial.” (Leonardo Moscoso v. Felix Brother and Balwinder Singh, 2020
N.Y.Misc. LEXIS 12741 (Qns. Cty., 2020) citing, Kelly v. Yannotti, 4 NY2d 603 [1958],
Christensen v. Weeks, 15 AD3d 330 [2d Dept., 2005], Emmetsberger v. Mitchell, 7 AD3d 483 [2d
Dept., 2004], Winsteadv Union Free Sch. Dist., 170 AD2d 500 [2d Dept., 1991]).
32. In Christensen v. Weeks, the Second Department in deciding a motion to reargue
held that it is generally recognized that, even where common facts exist, it is prejudicial to have
the issue of insurance coverage tried before the jury that considers the underlying liability claims.
(Christensen, supra). Similarly, in Emmetsberger, the Second Department held that the Supreme
Court erred in denying the motion to sever since the two actions did not involve common questions
of law or fact. To ensure that there is no prejudice to the insurance company, the main negligence
action and third-party insurance coverage action should be tried separately. (Emmetsberger,
supra).
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33. The Court of Appeals reversed the Second Department’s denial of a request to sever
an action involving an insurer from a claim. See Kelly v. Yanotti, 4 N.Y.2d 603 (N.Y. 1958).
(Case involving gas explosion at a home in which third-party defendant which third-party
defendant disputed its obligation to provide coverage, and Court severed the action against insurer
citing possible prejudice.)
34. The Court recognized that both prejudice and jury confusion were possible where
there were insurer parties and questions of breach of insurance contract and insurance procurement
issues and denied a motion for consolidation. See East 115th St. Realty Corp. v Focus & Struga
Bldg. Devs. LLC, 2010 NY Slip Op 30688(U) (Sup Ct. NY County 2010); see also Leeco Constr.
Co. v. United States Liability Ins., 22 Misc. 3d 611, 613 (2008) (considerations weighing against
consolidation for a joint trial include jury confusion or the prejudice of a substantial right).
35. Consolidation is generally favored, except where a party demonstrates that
consolidation will prejudice a substantial right. See Amtorg Trading Corp. v. Broadway & 56th
Street Assocs., 191 A.D.2d 212 (1st Dep’t 1993).
36. Here, the fact that insurance will necessarily play a role in a joint trial with a case
in which an insurer (GEICO) is a Plaintiff will substantially prejudice a right of UBER.
Therefore, Action 1 and Action 2 should not have been joined.
THE DISPARATE LEGAL THEORIES THAT WILL NEED
TO BE PRESENTED AT A JOINT TRIAL WILL CAUSE JURY CONFUSION, AND SO,
ACTIONS 1 AND 2 SHOULD NOT BE AND SHOULD NOT HAVE
BEEN JOINED FOR TRIAL
37. UBER respectfully submits that the briefing on this issue by counsel for
independent driver KONG, as would be expected, was focused almost solely on issues addressing
the motor vehicle accident itself. We submit that counsel for independent driver KONG’s briefing
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was not focused on issues pertinent to alleged vicarious liability19, and the Court, upon reviewing
this briefing understandably did not consider these issues when deciding to join Action 1 and
Action 2 for trial.
38. Even where there are common issues of fact, if the applicable legal issues are
dissimilar, actions should not be joined for trial. See D’Abreau v. American Bankers Ins. Co. 261
A.D.2d 501 (2d Dep’t. 1999). (Common issue of fact was Plaintiff’s Decedent’s death, but where
Action 1 involved collection of accidental death insurance proceeds and Action 2 involved medical
malpractice and products liability issues the legal principles were too dissimilar for consolidation.)
39. Even if there are common questions of law and fact, a motion for consolidation
should not be granted if it would be unduly prejudicial to a party’s rights, or dissimilar issues could
confuse the jury. See Brown v. Brooklyn Union Gas, 137 A.D.2d 479 (2d Dep’t. 1988). (Wrongful
death claims over a gas explosion should not have been consolidated with a legal malpractice
action arising out of counsel’s failure to timely commence a wrongful death action.) See also,
Gouldsbury v. Dan’s Supreme Supermarket, Inc., 138 A.D.2d 675 (2d Dep’t. 1988). (Even where
there were common issues of law and fact, where the two cases had wildly disparate legal theories,
fraud and legal malpractice, the actions should not have been consolidated.)
40. The Second Department has found that where parties could be substantially
prejudiced, it was appropriate to deny a request for consolidation where one action sounded in
negligence, and the other in contract. See Beerman v Morhaim, 17 A.D.3d 302 (2d Dept. 2005).
The Court noted that there was no showing that the proof would overlap in that case.
41. In Action 1, in which UBER is a party, Plaintiff Davison alleged that UBER
is vicariously liable for the actions of independent driver KONG20. These allegations transform
19
UBER vehemently disputes and denies this allegation, and all allegations against it.
20
UBER vehemently disputes and denies all allegations against it.
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Action 1 from one of a garden variety negligence/motor vehicle accident case to one where there
will necessarily be proof presented and complex legal issues discussed about independent driver
KONG’s status as an independent driver. Again, UBER vehemently disputes and denies all
allegations against it. Uber will raise arguments throughout the course of this case that are separate
and apart from, and completely unrelated to negligence in the operation of a motor vehicle or
subrogation.
42. UBER must note here that, should any opposing counsel argue that no opposition
papers were submitted in connection with the original motion, that does not prevent this Court
from searching the record and denying the motion at the Motion Court level or the Appellate
Division on appeal. See, generally, Rivera v. City of New York, 210 A.D.3d 544 (1st Dept. 2022).
In Rivera, argued by the undersigned, although no papers were submitted by the undersigned’s
client in the underlying summary judgment motion where the Court granted summary judgment
after searching the record, the Appellate Division nonetheless considered the undersigned’s
client’s Respondent’s Brief, and affirmed the lower Court’s decision. It should be noted also that
the Court has held it is the obligation of the party seeking consolidation to specify common issues
of law and fact which justify such consolidation, and in the absence of such showing the court
should deny consolidation. See RCH Constr. Corp. v Fleet Bank, N.A., 34 A.D.3d 776 (2d Dep’t
2006). See also, Youyi Chen v. 215 Chrystie Venture, LLC, 2023 N.Y. Misc. LEXIS 40 (Sup. Ct.
NY County 2023). Since the party seeking consolidation, independent driver KONG, did not meet
its burden on the motion, UBER contends that the motion should have been denied, regardless
of the service of any or the sufficiency or lack of sufficiency of any opposition papers.
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43. UBER respectfully contends that the alleged vicarious liability issues21 were not
emphasized in the briefing supporting independent driver KONG’s request for consolidation. In
fact, the issues at bar are much more complicated than a standard motor vehicle accident case, and
were misapprehended and overlooked by this Court. UBER therefore respectfully requests that
this Court grant leave to reargue and, upon reargument, deny the motion for joint trial.
CONCLUSION
44. For the reasons set forth herein, it is evident that joinder of Action 1 and Action 2
would result in substance prejudice to UBER and potential jury confusion. As such, Uber
respectfully requests that this Court grant its motion for leave to reargue this Court’s Joint Trial
Order of October 30, 2023, which was entered in the Clerk’s Office of the County of Kings on
November 16, 2023, and served with Notice of Entry on December 8, 2023, and, upon reargument,
deny the Joint Trial Order.
WHEREFORE, Uber Technologies, Inc. and Uber USA, LLC respectfully requests
that this Court grant Uber Technologies, Inc.’s, and Uber USA, LLC’s, motion for leave to reargue
this Court’s Joint Trial Order of October 30, 2023, which was entered in the Clerk’s Office of the
County of Kings on November 16, 2023, and served with Notice of Entry on December 8, 2023,
and, upon reargument, denial of the Joint Trial Order, and also seek such other and further relief
21
UBER vehemently disputes and denies all allegations against it.
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as this Court may deem just and proper under the circumstances.
Dated: New York, New York
January 8, 2024
WILSON, ELSER, MOSKOWITZ
EDELMAN & DICKER LLP
/s/ Kenneth A. McLellan
By:_________________________
Kenneth A. McLellan, Esq.
Attorneys for Defendants
UBER TECHNOLOGIES, INC.,
and UBER USA, LLC
150 E. 42nd Street
New York, NY 10017
(212) 915-5551
File No. 15422-01756
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FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------x DANIEL L. DAVISON, JR., Index No. 502495/2023 AFFIRMATION IN SUPPORT OF MOTION FOR LEAVE TO Plaintiffs, REARGUE JOINT TRIAL ORDER - against - CHAOHUI KONG, UBER TECHNOLOGIES, INC., and UBER USA, LLC, Defendants. -----------------------------------------------------------------------------x KENNETH A. McLELLAN, an attorney duly admitted to practice law in the State of New York, and Of Counsel to the firm of WILSON, ELSER, MOSKOWITZ, EDLEMAN & DICKER, LLP, attorneys for Defendants, UBER TECHNOLOGIES, INC., and UBER USA, LLC, (hereinafter referred to collectively as “UBER”) affirms the truth of the following, aware of the penalties of perjury, pursuant to CPLR 2106, and UBER submits the within Affirmation in Support of its motion pursuant to CPLR 2221 for leave to reargue this Court’s decision of October 30, 2023, entered November 16, 2023, granting the application of Defendant independent driver CHAOHUI KONG’s (sometimes referred to as “KONG”) motion for an Order pursuant to CPLR 602 directing a joint trial and discovery with a property damage subrogation case in another Court where insurer GEICO General Insurance Company (sometimes referred to as “GEICO”) is the Plaintiff. UBER asks that this Court grant leave to reargue, and, upon reargument deny independent driver KONG’s motion in its entirety; and for such other and further relief as may be just and proper under the circumstances. 1 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 1. UBER submits this Affirmation in Support of its motion to reargue the October 30, 2023, order of Hon. Peter P. Sweeney, J.S.C., entered in the Kings County Clerk’s Office on November 16, 2023. In that Order (sometimes referred to as the “Joint Trial Order”), this Court ruled that the within action, in which Plaintiff DANIEL L. DAVISON, JR., (“DAVISON”) alleges bodily injury as a result of a motor vehicle accident, should be joined for trial and for discovery with a property damage subrogation action in which GEICO is the Plaintiff. We request that this Court reconsider its decision and grant leave to reargue and, upon reargument, deny independent driver KONG’S motion to join the two actions for discovery and trial. We also seek such other and further relief as this Court may deem just and proper under the circumstances. 2. There are two (2) grounds supporting UBER’s request which are as follows: (I) Anticipated Mention of the Word “Insurance” at Trial. First, the Joint Trial Order should be reconsidered and denied because it creates a situation at trial where UBER will be prejudiced due to the necessary mention of the word “insurance” in front of the jury. It is undeniably clear that a jury uncovering insurance coverage in a lawsuit is strictly prohibited and in itself is grounds for a mistrial. In fact, a motion for mistrial was just granted in Kings County in December 2023 after counsel for the plaintiff improperly referenced insurance in front of the jury. Diaz v. Uber Technologies, Inc., et al., Index No. 515746/2018 (Kings County). See additional citations below. (II) Jury Confusion. Second, to have the within action joined with a property damage subrogation action will cause unnecessary confusion for the jury due to the joinder of several, disparate legal theories in a joint trial. The within action involves more complex legal issues than a typical motor vehicle accident due to allegations of vicarious liability against UBER. 2 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 To add in a subrogation case, which requires an explanation of the nature of subrogation, brought by a subrogee of parties who are not even named in the within action, coupled with the concepts of alleged vicarious liability will cause unnecessary confusion for the jury1. FACTUAL SUMMARY/NATURE OF MOTION 3. The Pleadings attached to the motion for a joint trial show that the two joined actions in question arise out of an alleged motor vehicle accident occurring on August 21, 2022, on Shore Parkway at or near its intersection with Knapp Street in the County of Kings, City and State of New York. 4. At the outset, we note that the papers in the subject motion are referred to by docket numbers in the NYSCEF electronic docket, as is permitted by New York’s Civil Practice Law and Rules, CPLR R. 2214 (c)2. 5. The within motion for leave to reargue involves our request that this Court reverse its Joint Trial Order and deny independent driver KONG’s motion for joint discovery and joint trial. This Court joined for trial a motor vehicle accident involving allegations of bodily injury claimed to have been suffered in a motor vehicle accident coupled with a property damage subrogation action in which UBER was not named. 6. Hereafter, the bodily injury action is referred to as Action 1 and the property damage subrogation action is referred to as Action 2. 1 UBER vehemently disputes and denies all allegations against it. 2 CPLR 2214 (c) provides, in pertinent part, “[e]xcept when the rules of the court provide otherwise, in an e-filed action, a party that files papers in connection with a motion need not include copies of papers that were filed previously electronically with the court, but may make reference to them, giving the docket numbers on the e-filing system.” 3 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 7. Action 1 is styled: Daniel L. Davison, Jr. Plaintiff, v. Chaohui Kong, Uber Technologies, Inc., and Uber USA, LLC, Defendants. It bears Supreme Court of the State of New York, County of Kings, Index No. 502495/2023. 8. Action 2 is styled: GEICO General Insurance Company as Subrogee of Branko Marjanovic and Sergey Kurdenkov, Plaintiff, v. Kerry Riley, Daniel Davidson3, Chaohui Kong and “John Doe,” Being a Fictitious Name, Defendant. It bears Civil Court of the City of New York, County of Queens, Index No.: 003757/2023. 9. Plaintiff in Action 1, Daniel L. Davison, Jr., (“Davison”) alleges that UBER is vicariously liable for independent driver KONG’s actions. UBER vehemently disputes and denies this allegation, and all other allegations against it. Plaintiff Davison alleges that on August 21st, 2022, on Shore Parkway at or near its intersection with Knapp Street, a vehicle operated by independent driver KONG and a vehicle operated by Davison came into contact with each other. Davison claims that he was injured as a result of the contact. Further, he alleges his injuries were caused by all the Defendants, including UBER. 4 10. Plaintiff in Action 2, GEICO General Insurance Company (“GEICO”) as Subrogee of Branko Marjanovic and Sergey Kurdenkov, asserts that a vehicle operated by Daniel Davison5 and owned by Kerry Riley, on August 21, 2022, and a vehicle owned by independent driver KONG 3 This is believed to be a typographical error and that Plaintiff in Action 1 Daniel L. Davison, Jr. and Daniel Davidson, Defendant in Action 2 are the same person. The license plate number of the vehicle referenced in each action matches, namely: New York KD6074. We rely on the spelling in Action 1 provided by Plaintiff’s counsel. 4 See NYSCEF Doc. 15, Page 9, Para 48. 5 Improperly named in the subrogation action as Daniel Davidson. 4 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 were involved in an accident that caused damages to a GEICO’s subrogors’ vehicle. GEICO 6 alleges damages of property damage and loss of use suffered by its subrogors . PROCEDURAL HISTORY 11. For the sake of brevity and judicial economy, UBER provides an abbreviated discussion of the procedural history necessary to adjudicate the within motion. 12. Regarding Action 1, it was commenced by a Summons and Complaint on January 24, 20237. All named Defendants interposed Answers8. This Court issued a Preliminary Conference Order on April 27, 20239 and a Central Compliance Conference Part Order on August 9, 202310. The undersigned’s office recently substituted in as counsel for UBER, and, upon information and belief, depositions are outstanding in both actions. 13. Counsel for independent driver KONG in Action 1, the Law Office of Nancy Isserlis, filed a motion seeking a joint trial of Action 1 and Action 211. 14. Regarding Action 2, Plaintiff GEICO filed a Summons and Complaint in the Civil Court of the City of New York, County of Queens. Counsel for independent driver KONG in that action, also Ms. Isserlis’ office, interposed an Answer12. 15. This Court issued an Order on October 30, 202313, joining Action 1 and Action 2 for trial and joint discovery and the Order was entered in the Kings County Clerk’s office on 6 See NYSCEF Doc. 16, Pages 4 and 5. 7 See NYSCEF Doc. 1. 8 See NYSCEF Docs 6 and 7. 9 See NYSCEF Doc. 10. 10 See NSYCEF Doc. 12. 11 See NYSCEF Docs 13 through 17. 12 See NYSCEF Doc. 16. 13 See NYSCEF Doc. 18. 5 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 November 16, 2023. On December 8, 2023, counsel for independent driver KONG, The Law Office of Nancy Isserlis, filed the Order with Notice of Entry, identifying the firm of Goldberg, Miller & Rubin, P.C., as counsel for Defendants in Action 2, Riley and Davison. 16. UBER now seeks leave to reargue, and asks that upon reargument, that this Court reverse its decision in the Joint Trial Order, and deny the motion for a joint trial, and further, that it issue such other and further relief as may be just and proper under the circumstances. STANDARD FOR MOTIONS TO REARGUE 17. Motions for leave to reargue are governed by CPLR 2221. CPLR 2221(d) provides the procedure for reargument. 18. CPLR 2221(d) states in pertinent part that: (d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days14 after service of a copy of the order determining the prior motion and written notice of its entry. 19. A motion for leave to reargue “is addressed to the sound discretion of the court which made the original determination and may be granted upon a showing that the court 14 Our motion, filed on January 8, 2024, is timely in that 30 days from December 8, 2023, fell on Sunday, January 7, 2024. Under New York’s General Construction Law Section 25-a-1 and which extends the deadline to the next business day, which is Monday December 8, 2023. See, e.g., Curto v. New York Law Journal, 144 A.D.3d 1543 (4th Dep’t. 2016), rehearing denied, 147 A.D.3d 1462 (4th Dep’t 2017). 6 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 overlooked or misapprehended the facts or law, or for some other reason mistakenly arrived at its earlier determination[.]” See Eveready Ins. v. Farrell, 304 A.D.2d 830 (2d Dep’t. 2003). DEFENDANTS UBER TECHNOLOGIES, INC., AND UBER USA, LLC, REQUEST LEAVE TO REARGUE THIS COURT’S DECISION GRANTING A MOTION FOR A JOINT TRIAL, AND THAT THIS COURT, UPON REARGUMENT, DENY INDEPENDENT DRIVER KONG’S MOTION FOR A JOINT TRIAL 20. UBER respectfully requests that this Court grant leave to reargue its Joint Trial Order, and upon reargument, that it deny independent driver KONG’s request for a Joint Trial. The grounds for leave to reargue are (1) that the Joint Trial Order will require the mention of “insurance” at the time of trial, since Plaintiff in Action 2 is GEICO (an insurance company), which will cause prejudice to UBER, and (2) that the joinder will cause jury confusion of the ultimate issues at the time of trial since it will combine the issues of negligence concerning the operation of a motor vehicle, along with issues of alleged vicarious liability of UBER, which UBER vehemently disputes and denies15 , along with the separate legal issue of subrogation in Action 2. 21. Although the vocabulary and concepts associated with these issues may be commonplace for the Court and counsel, the presentation of all these legal issues at trial will undoubtedly be unwieldy and will cause confusion for the jury. Accordingly, independent driver KONG’s motion for a joint trial should have been denied. 22. Counsel for independent driver KONG argued that a joint trial was warranted in a supporting affirmation filed on August 18, 202316 relying on CPLR 602. Counsel’s briefing misstated the issues that would be part of a joint trial of this matter. Counsel argued: “The parties 15 UBER vehemently disputes and denies all allegations against it. 16 See NYSCEF Doc. 14, at Para. 3. 7 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 involved in these actions are either owners, operators or passengers of or in the vehicles involved, with the exception of those parties whose causes of action are derivative.”17 23. Based on this overly general and vague description of the issues it is understandable that the Court may not have been fully aware of the legal issues involved in Action 1, and therefore misapprehended or overlooked the fact that Action 1 and Action 2 should not have been joined. 24. CPLR 602 (a) provides, in pertinent part: When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. 25. While the Court may order a joint trial, it should not where such joinder would prejudice a substantial right18. THE MENTION OF THE WORD INSURANCE AT A JOINT TRIAL WILL IRREPERABLY PREJUDICE UBER TECHNOLOGIES, INC., AND UBER USA, LLC 26. The fact that Plaintiff in Action 2, GEICO, is an insurer will create an issue where insurance will have to be mentioned to the jury. Counsel will have to identify her client at jury selection to inquire as to whether any prospective jurors have any opinions, positive or negative, about GEICO and to identify any possible employees or family members of GEICO employees. From the very beginning of the case, jurors may be of the mind that this case involves insurers trying to avoid paying claims or merely a dispute between insurers themselves. 27. UBER will be prejudiced by any mention of the word insurance at the time of trial. 17 See NYSCEF, Doc 14, at Para. 7. 18 Amtorg Trading Corp. v. Broadway & 56th Street Assocs., 191 A.D.2d 212 (1st Dep’t. 1993). 8 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 28. Even one mention of the word “insurance” at the time of trial is grounds for a mistral. See Diaz v. Uber Technologies, Inc., et al., Index No. 515746/2018 (Kings County) (motion for mistrial granted in Kings County in December 2023 where counsel for the plaintiff made references to insurance in front of the jury); Grogan v. Nizam, 66 A.D.3d 734 (2d Dep’t. 2009). (Mistrial granted in medical malpractice case after verdict in Plaintiff’s favor where Plaintiff’s counsel elicited testimony from his own expert that he was a consultant for an insurance company. “Although there was only the one mention of insurance by the [plaintiff], it cannot be said that this one instance did not have an influence on the jury.”); Johnson v. Lazarowitz, 4 A.D.3d 334, 771 N.Y.S.2d 534 (2d Dept. 2004) (where counsel for plaintiff only referred to the existence of defendant’s insurance policies, the Second Department held that mistrial was warranted due to the probability of prejudice.); Simpson v. Foundation Co., 201 N.Y. 479; Cosselmon v. Dunfee, 172 N.Y. 507); Hordern v. Salvation Army, 124 App. Div. 674, 676; Haigh v. Edelmeyer & M. H. Elevator Co., 123 App. Div. 376, 380; Manigold v. Black River Traction Co., 81 App. Div. 381, 384). 29. In a case directly on point, Huerta v. Uber Technologies, Inc., et al., the court ruled that a motion for joint trial involving a personal injury action and a property damage subrogation action “would be too prejudicial to the Defendants, especially Defendant Uber Technologies, Inc. and Uber USA, LLC”. Index No. 702660/2022 (Queens County) NYSCEF Doc. 38. As such, the Court denied the motion in its entirety and issued a stay of the Civil Court subrogation action until a final determination is made in the Supreme Court Action. Id. 30. In another case directly on point, Umar v. Douglas Lehr, et al., the court denied a motion to consolidate a bodily injury action with a subrogation claim seeking property damage as a result of the same six (6) car motor vehicle accident. (Umar v. Douglas Lehr, et al., 2020 N.Y. 9 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 Misc. LEXIS 7906 at 5). While the court acknowledged that the two actions share some common facts, they found that the property damage claim and bodily injury claim involved separate legal issues. Id. At 3. Therefore, the court denied the motion to consolidate on the basis that consolidation “would be prejudicial to the opposing parties and lead to unnecessary jury confusion.” Id. at 5. 31. In an analogous case, Leonardo Moscoso, three actions arose out of a common motor vehicle accident. Two Supreme Court, Queens County actions were personal injury actions seeking damages for bodily injuries. The Queens Civil Court action was a property damage subrogation matter. The Court found that joining of the subrogation action with the personal injury actions are routinely denied on the ground that the intertwining of insurance and personal injury actions are “highly prejudicial.” (Leonardo Moscoso v. Felix Brother and Balwinder Singh, 2020 N.Y.Misc. LEXIS 12741 (Qns. Cty., 2020) citing, Kelly v. Yannotti, 4 NY2d 603 [1958], Christensen v. Weeks, 15 AD3d 330 [2d Dept., 2005], Emmetsberger v. Mitchell, 7 AD3d 483 [2d Dept., 2004], Winsteadv Union Free Sch. Dist., 170 AD2d 500 [2d Dept., 1991]). 32. In Christensen v. Weeks, the Second Department in deciding a motion to reargue held that it is generally recognized that, even where common facts exist, it is prejudicial to have the issue of insurance coverage tried before the jury that considers the underlying liability claims. (Christensen, supra). Similarly, in Emmetsberger, the Second Department held that the Supreme Court erred in denying the motion to sever since the two actions did not involve common questions of law or fact. To ensure that there is no prejudice to the insurance company, the main negligence action and third-party insurance coverage action should be tried separately. (Emmetsberger, supra). 10 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 33. The Court of Appeals reversed the Second Department’s denial of a request to sever an action involving an insurer from a claim. See Kelly v. Yanotti, 4 N.Y.2d 603 (N.Y. 1958). (Case involving gas explosion at a home in which third-party defendant which third-party defendant disputed its obligation to provide coverage, and Court severed the action against insurer citing possible prejudice.) 34. The Court recognized that both prejudice and jury confusion were possible where there were insurer parties and questions of breach of insurance contract and insurance procurement issues and denied a motion for consolidation. See East 115th St. Realty Corp. v Focus & Struga Bldg. Devs. LLC, 2010 NY Slip Op 30688(U) (Sup Ct. NY County 2010); see also Leeco Constr. Co. v. United States Liability Ins., 22 Misc. 3d 611, 613 (2008) (considerations weighing against consolidation for a joint trial include jury confusion or the prejudice of a substantial right). 35. Consolidation is generally favored, except where a party demonstrates that consolidation will prejudice a substantial right. See Amtorg Trading Corp. v. Broadway & 56th Street Assocs., 191 A.D.2d 212 (1st Dep’t 1993). 36. Here, the fact that insurance will necessarily play a role in a joint trial with a case in which an insurer (GEICO) is a Plaintiff will substantially prejudice a right of UBER. Therefore, Action 1 and Action 2 should not have been joined. THE DISPARATE LEGAL THEORIES THAT WILL NEED TO BE PRESENTED AT A JOINT TRIAL WILL CAUSE JURY CONFUSION, AND SO, ACTIONS 1 AND 2 SHOULD NOT BE AND SHOULD NOT HAVE BEEN JOINED FOR TRIAL 37. UBER respectfully submits that the briefing on this issue by counsel for independent driver KONG, as would be expected, was focused almost solely on issues addressing the motor vehicle accident itself. We submit that counsel for independent driver KONG’s briefing 11 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 was not focused on issues pertinent to alleged vicarious liability19, and the Court, upon reviewing this briefing understandably did not consider these issues when deciding to join Action 1 and Action 2 for trial. 38. Even where there are common issues of fact, if the applicable legal issues are dissimilar, actions should not be joined for trial. See D’Abreau v. American Bankers Ins. Co. 261 A.D.2d 501 (2d Dep’t. 1999). (Common issue of fact was Plaintiff’s Decedent’s death, but where Action 1 involved collection of accidental death insurance proceeds and Action 2 involved medical malpractice and products liability issues the legal principles were too dissimilar for consolidation.) 39. Even if there are common questions of law and fact, a motion for consolidation should not be granted if it would be unduly prejudicial to a party’s rights, or dissimilar issues could confuse the jury. See Brown v. Brooklyn Union Gas, 137 A.D.2d 479 (2d Dep’t. 1988). (Wrongful death claims over a gas explosion should not have been consolidated with a legal malpractice action arising out of counsel’s failure to timely commence a wrongful death action.) See also, Gouldsbury v. Dan’s Supreme Supermarket, Inc., 138 A.D.2d 675 (2d Dep’t. 1988). (Even where there were common issues of law and fact, where the two cases had wildly disparate legal theories, fraud and legal malpractice, the actions should not have been consolidated.) 40. The Second Department has found that where parties could be substantially prejudiced, it was appropriate to deny a request for consolidation where one action sounded in negligence, and the other in contract. See Beerman v Morhaim, 17 A.D.3d 302 (2d Dept. 2005). The Court noted that there was no showing that the proof would overlap in that case. 41. In Action 1, in which UBER is a party, Plaintiff Davison alleged that UBER is vicariously liable for the actions of independent driver KONG20. These allegations transform 19 UBER vehemently disputes and denies this allegation, and all allegations against it. 20 UBER vehemently disputes and denies all allegations against it. 12 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 Action 1 from one of a garden variety negligence/motor vehicle accident case to one where there will necessarily be proof presented and complex legal issues discussed about independent driver KONG’s status as an independent driver. Again, UBER vehemently disputes and denies all allegations against it. Uber will raise arguments throughout the course of this case that are separate and apart from, and completely unrelated to negligence in the operation of a motor vehicle or subrogation. 42. UBER must note here that, should any opposing counsel argue that no opposition papers were submitted in connection with the original motion, that does not prevent this Court from searching the record and denying the motion at the Motion Court level or the Appellate Division on appeal. See, generally, Rivera v. City of New York, 210 A.D.3d 544 (1st Dept. 2022). In Rivera, argued by the undersigned, although no papers were submitted by the undersigned’s client in the underlying summary judgment motion where the Court granted summary judgment after searching the record, the Appellate Division nonetheless considered the undersigned’s client’s Respondent’s Brief, and affirmed the lower Court’s decision. It should be noted also that the Court has held it is the obligation of the party seeking consolidation to specify common issues of law and fact which justify such consolidation, and in the absence of such showing the court should deny consolidation. See RCH Constr. Corp. v Fleet Bank, N.A., 34 A.D.3d 776 (2d Dep’t 2006). See also, Youyi Chen v. 215 Chrystie Venture, LLC, 2023 N.Y. Misc. LEXIS 40 (Sup. Ct. NY County 2023). Since the party seeking consolidation, independent driver KONG, did not meet its burden on the motion, UBER contends that the motion should have been denied, regardless of the service of any or the sufficiency or lack of sufficiency of any opposition papers. 13 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 43. UBER respectfully contends that the alleged vicarious liability issues21 were not emphasized in the briefing supporting independent driver KONG’s request for consolidation. In fact, the issues at bar are much more complicated than a standard motor vehicle accident case, and were misapprehended and overlooked by this Court. UBER therefore respectfully requests that this Court grant leave to reargue and, upon reargument, deny the motion for joint trial. CONCLUSION 44. For the reasons set forth herein, it is evident that joinder of Action 1 and Action 2 would result in substance prejudice to UBER and potential jury confusion. As such, Uber respectfully requests that this Court grant its motion for leave to reargue this Court’s Joint Trial Order of October 30, 2023, which was entered in the Clerk’s Office of the County of Kings on November 16, 2023, and served with Notice of Entry on December 8, 2023, and, upon reargument, deny the Joint Trial Order. WHEREFORE, Uber Technologies, Inc. and Uber USA, LLC respectfully requests that this Court grant Uber Technologies, Inc.’s, and Uber USA, LLC’s, motion for leave to reargue this Court’s Joint Trial Order of October 30, 2023, which was entered in the Clerk’s Office of the County of Kings on November 16, 2023, and served with Notice of Entry on December 8, 2023, and, upon reargument, denial of the Joint Trial Order, and also seek such other and further relief 21 UBER vehemently disputes and denies all allegations against it. 14 of 15 FILED: KINGS COUNTY CLERK 01/08/2024 05:22 PM INDEX NO. 502495/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 01/08/2024 as this Court may deem just and proper under the circumstances. Dated: New York, New York January 8, 2024 WILSON, ELSER, MOSKOWITZ EDELMAN & DICKER LLP /s/ Kenneth A. McLellan By:_________________________ Kenneth A. McLellan, Esq. Attorneys for Defendants UBER TECHNOLOGIES, INC., and UBER USA, LLC 150 E. 42nd Street New York, NY 10017 (212) 915-5551 File No. 15422-01756 15 of 15