Preview
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
----------------------------------------- x Index No.: 154984/2017
ROSE VRABEL :
:
Plaintiff, : VERIFIED ANSWER
: WITH CROSS-CLAIMS
- against - :
:
CHANDRA DAS SUJAN, RAJASH SHAHA and UBER :
TECHNOLOGIES, INC., :
:
Defendants. :
:
:
----------------------------------------- x
Defendant, UBER TECHNOLOGIES, INC., by its attorneys, WILSON, ELSER,
MOSKOWITZ, EDELMAN & DICKER LLP, as and for an Answer to the plaintiff’s Verified
Complaint, allege upon information and belief the following:
1. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “1” of plaintiff’s Verified Complaint.
2. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “2” of plaintiff’s Verified Complaint.
3. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “3” of plaintiff’s Verified Complaint.
4. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “4” of plaintiff’s Verified Complaint.
5. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “5” of plaintiff’s Verified Complaint.
6. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “6” of plaintiff’s Verified Complaint.
1
6587447v.1
1 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
7. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “7” of plaintiff’s Verified Complaint.
8. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “8” of plaintiff’s Verified Complaint.
9. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “9” of plaintiff’s Verified Complaint.
10. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “10” of plaintiff’s Verified Complaint.
11. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “11” of plaintiff’s Verified Complaint.
12. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “12” of plaintiff’s Verified Complaint.
13. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “13” of plaintiff’s Verified Complaint.
14. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “14” of plaintiff’s Verified Complaint.
15. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “15” of plaintiff’s Verified Complaint.
16. Deny each and every allegation contained in paragraph “16” of plaintiff’s
Verified Complaint.
17. Admit the allegations contained in paragraph contained in paragraph “17” of
plaintiff’s Verified Complaint.
2
6587447v.1
2 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
18. Admit that Uber Technologies, Inc. is a foreign corporation authorized to conduct
business in the State of New York. Uber Technologies, Inc. denies any remaining allegations
contained in paragraph “18” of plaintiff’s Verified Complaint.
19. Deny each and every allegation contained in paragraph “19” of plaintiff’s
Verified Complaint.
20. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “20” of plaintiff’s Verified Complaint.
21. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “21” of plaintiff’s Verified Complaint.
22. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “22” of plaintiff’s Verified Complaint.
23. Deny each and every allegation contained in paragraph “23” of plaintiff’s
Verified Complaint.
24. Deny each and every allegation contained in paragraph “24” of plaintiff’s
Verified Complaint.
25. Deny each and every allegation contained in paragraph “25” of plaintiff’s
Verified Complaint.
26. Deny each and every allegation contained in paragraph “26” of plaintiff’s
Verified Complaint.
27. Deny each and every allegation contained in paragraph “27” of plaintiff’s
Verified Complaint.
28. Deny each and every allegation contained in paragraph “28” of plaintiff’s
Verified Complaint.
3
6587447v.1
3 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
29. Deny each and every allegation contained in paragraph “29” of plaintiff’s
Verified Complaint.
30. Deny each and every allegation contained in paragraph “30” of plaintiff’s
Verified Complaint.
31. Deny each and every allegation contained in paragraph “31” of plaintiff’s
Verified Complaint. Uber Technologies, Inc. expressly objects to the use of the phrase “Uber
driver” as that phrase is undefined rendering this allegation vague, ambiguous, and unintelligible.
32. Deny each and every allegation contained in paragraph “32” of plaintiff’s
Verified Complaint. Uber Technologies, Inc. expressly objects to the use of the phrase “Uber
driver” as that phrase is undefined rendering this allegation vague, ambiguous, and unintelligible.
33. Deny each and every allegation contained in paragraph “33” of plaintiff’s
Verified Complaint. Uber Technologies, Inc. expressly objects to the use of the phrase “Uber
drivers” and “Uber customers” as that phrase is undefined rendering this allegation vague,
ambiguous, and unintelligible.
34. Deny each and every allegation contained in paragraph “34” of plaintiff’s
Verified Complaint.
35. Deny each and every allegation contained in paragraph “35” of plaintiff’s
Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and
deny knowledge or information sufficient to form a belief as to the allegations contained in
paragraph “35” of plaintiff’s Verified Complaint insofar as they relate to any other defendant.
36. Deny each and every allegation contained in paragraph “36” of plaintiff’s
Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and
4
6587447v.1
4 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
deny knowledge or information sufficient to form a belief as to the allegations contained in
paragraph “36” of plaintiff’s Verified Complaint insofar as they relate to any other defendant.
37. Deny each and every allegation contained in paragraph “37” of plaintiff’s
Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and
deny knowledge or information sufficient to form a belief as to the allegations contained in
paragraph “37” of plaintiff’s Verified Complaint insofar as they relate to any other defendant.
38. Deny each and every allegation contained in paragraph “38” of plaintiff’s
Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and
deny knowledge or information sufficient to form a belief as to the allegations contained in
paragraph “38” of plaintiff’s Verified Complaint insofar as they relate to any other defendant.
39. Deny each and every allegation contained in paragraph “39” of plaintiff’s
Verified Complaint.
40. Deny each and every allegation contained in paragraph “40” of plaintiff’s
Verified Complaint. Uber Technologies, Inc. expressly objects to the use of the phrase “Uber
driver” as that phrase is undefined rendering this allegation vague, ambiguous, and unintelligible.
41. Deny each and every allegation contained in paragraph “41” of plaintiff’s
Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and
deny knowledge or information sufficient to form a belief as to the allegations contained in
paragraph “41” of plaintiff’s Verified Complaint insofar as they relate to any other defendant.
Uber Technologies, Inc. expressly objects to the use of the phrase “Uber motor vehicle” and
“Uber driver” as that phrase is undefined rendering this allegation vague, ambiguous, and
unintelligible.
5
6587447v.1
5 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
42. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “42” of plaintiff’s Verified Complaint.
43. Deny knowledge or information sufficient to form a belief as to the allegations
contained in paragraph “43” of plaintiff’s Verified Complaint.
44. Deny each and every allegation contained in paragraph “44” of plaintiff’s
Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and
deny knowledge or information sufficient to form a belief as to the allegations contained in
paragraph “44” of plaintiff’s Verified Complaint insofar as they relate to any other defendant.
45. Deny each and every allegation contained in paragraph “45” of plaintiff’s
Verified Complaint and respectfully refer questions of law to the Court.
46. Deny each and every allegation contained in paragraph “46” of plaintiff’s
Verified Complaint and respectfully refer questions of law to the Court.
47. Deny each and every allegation contained in paragraph “47” of plaintiff’s
Verified Complaint.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
The answering defendant reserves the right to claim the limitation of liability for non-
economic loss provided pursuant to Article 16 of the CPLR.
AS AND FOR A SECOND AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
The plaintiff assumed the risk of all the dangers intended upon the activity upon which
the plaintiff was engaged at the time of the alleged accident and is therefore barred from
recovering on the claim asserted. All the damages and risks incident to the situation mentioned
in the Verified Complaint were open, obvious and apparent, and were known and assumed by the
6
6587447v.1
6 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
plaintiff. In assuming the risks attendant with her conduct, the plaintiff failed to act as a
reasonable and prudent person with regard to her own safety and well being.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
To the extent that the plaintiff recovers any damages for the cost of medical care, dental
care, custodial care or rehabilitative services, loss of earnings and/or other economic loss, the
amount of the award shall be reduced by the sum total of all collateral reimbursements, from
whatever source, whether it be insurance, the Patient Protection and Affordable Care Act Social
Security payments, Workers’ Compensation, employee benefits or other such programs, in
accordance with the provisions of CPLR §4545.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
Any injuries sustained or suffered by the plaintiff as stated in the Verified Complaint
were caused in whole or in part by the comparative/contributory negligence of the plaintiff. If a
verdict or judgment is awarded to the plaintiff, then and in that event, the damages shall be
reduced in the proportion which the culpable conduct attributable to the plaintiff bears to the
culpable conduct which caused the damages.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
If plaintiff was caused to sustain damages at the time and place set forth in the Verified
Complaint, it was due to the culpable conduct of person or persons presently unknown.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the
injuries, damages and disabilities alleged in the Verified Complaint.
7
6587447v.1
7 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
The answering defendant specifically denies ownership, operation and control of the
motor vehicle alleged in the Verified Complaint at the time, date, and place referred to in the
Verified Complaint.
AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
As to each and every cause of action contained therein, the answering defendant alleges
that the Verified Complaint and each cause of action set forth therein are barred, in whole or in
part, under the independent contractor defense, as co-defendant, RAJASH SHAHA, was an
independent contractor responsible for his own means and methods, making the doctrine of
respondeat superior and agency inapplicable.
AS AND FOR A NINTH AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
Plaintiff’s Verified Complaint fails to join appropriate parties in this action.
AS AND FOR A TENTH AFFIRMATIVE DEFENSE, DEFENDANT,
UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES:
Plaintiff’s Verified Complaint fails to state a cause of action upon which relief can be
granted.
AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, UBER TECHNOLOGIES,
INC., RESPECTFULLY ALLEGES:
Plaintiff did not sustain a serious injury as defined by 5102(d) of the New York State
Insurance Law.
AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, UBER TECHNOLOGIES,
INC., RESPECTFULLY ALLEGES:
The alleged injuries suffered by plaintiff were not proximately caused by the alleged
accident at issue in this action or by any actions of the answering defendants.
8
6587447v.1
8 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, UBER TECHNOLOGIES,
INC., RESPECTFULLY ALLEGES:
Plaintiff failed to utilize appropriate and available seatbelt restraints. Such failure is
pleaded as both a complete and partial defense as well as mitigation of any and all damages. In
failing to exercise ordinary care in making use of available seatbelt restraints, plaintiff acted
unreasonably and disregarded plaintiff’s own best interests.
AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, UBER TECHNOLOGIES,
INC., RESPECTFULLY ALLEGES:
Upon information and belief, the claim alleged in plaintiff’s Verified Complaint is
subject to an arbitration agreement between plaintiff and Uber Technologies Inc., such that this
matter should be properly brought before a qualified arbitrator rather than in the instant court.
ON A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIRST
CROSS-CLAIM AGAINST DEFENDANTS, CHANDRA DAS SUJAN AND RAJASH
SHAHA, DEFENDANT UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES
UPON INFORMATION AND BELIEF:
If the plaintiff was caused to sustain damages at the time and place set forth in the
plaintiff’s Verified Complaint through any carelessness, recklessness, and/or negligence other
than the plaintiff’s own, such damages were sustained in whole due to the primary and active
carelessness, recklessness, and/or negligent acts or omissions, or commissions by the co-
defendants CHANDRA DAS SUJAN and RAJASH SHAHA, their agents, servants, and/or
employees with the negligence of the answering defendant, if any, being secondary, derivative,
and by operation of law. Further, if plaintiff should recover judgment against the answering
defendant, then the answering defendant is entitled to common law indemnification from and
judgment over and against co-defendants CHANDRA DAS SUJAN and RAJASH SHAHA, for
all or any part of any verdict or judgment which the plaintiff may recover in such amounts as the
Court or jury may direct. By reason of the action, said answering defendant has been and will be
put to costs and expenses, including attorneys’ fees.
9
6587447v.1
9 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
ON A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SECOND
CROSS-CLAIM AGAINST DEFENDANTS, CHANDRA DAS SUJAN AND RAJASH
SHAHA, DEFENDANT UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES
UPON INFORMATION AND BELIEF:
If the plaintiff was caused to sustain damages at the time and place set forth in the
plaintiff’s Verified Complaint through any carelessness, recklessness and/or negligence other
than the plaintiffs’ own, such damages were sustained in whole or in part by reason of the
carelessness, recklessness, and negligence, and/or negligent acts or of omission or commission
by the co-defendants, CHANDRA DAS SUJAN and RAJASH SHAHA, their agents, servants,
and/or employees. Further, if plaintiff should recover judgment against the answering defendant,
then the co-defendants, CHANDRA DAS SUJAN and RAJASH SHAHA, shall be liable to the
answering defendant on basis of apportionment of responsibility for the alleged occurrence, and
the answering defendant is entitled to contribution from and judgment over and against the co-
defendants for such or part of any verdict or judgment which plaintiff may recover in such
amounts as a jury or Court may direct.
ON A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A THIRD
CROSS-CLAIM AGAINST DEFENDANT, RAJASH SHAHA, DEFENDANT UBER
TECHNOLOGIES, INC., RESPECTFULLY ALLEGES UPON INFORMATION AND
BELIEF:
Prior to the date of accident, the co-defendant, RAJASH SHAHA entered into an
agreement, whereby co-defendant, RAJASH SHAHA agreed, in part, to indemnify, defend, and
hold harmless the answering defendant from any injuries and damages in connection with the
accident in question. It is further understood and agreed that co-defendant, RAJASH SHAHA
would provide appropriate insurance coverage. Based upon said co-defendant’s RAJASH
SHAHA, failure to indemnify, defend, and hold harmless the answering defendant, the
answering defendant has sustained costs and expenses including attorneys’ fees in the defense of
this litigation and that said co-defendant is liable to the answering defendant for same.
10
6587447v.1
10 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
WHEREFORE, defendant, UBER TECHNOLOGIES, INC., demands judgment dismissing the
plaintiff’s Verified Complaint and further demands judgment over and against co-defendants,
CHANDRA DAS SUJAN and RAJASH SHAHA, for the amount of any judgment obtained
against the answering defendant or on the basis of apportionment of responsibility, or in such
amounts as a jury or Court may direct, together with the costs, disbursements and attorneys’ fees
of this action and any expenses incurred in the defense thereof.
Dated: White Plains, New York
July 7, 2017
Yours, etc.,
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
By:
Ryan A. McKeon
Attorneys for Defendant
UBER TECHNOLOGIES INC.,
1133 Westchester Avenue
White Plains, New York 10604
(914) 323-7000
File No.: 15422.00117
TO:
WINGATE, RUSSOTTI, SHAPIRO & HALPERIN, LLP
Attorneys for Plainitff
420 Lexington Avenue
Suite 2750
New York, NY 10170
CHANDRA DA SUJAN
813 Avenue C, Apt 6
Brooklyn, NY 11218
RAJASH SHAHA
736 10th Street
Brooklyn, NY 11230
11
6587447v.1
11 of 12
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017
ATTORNEY’S VERIFICATION
RYAN A. MCKEON, an attorney duly admitted to practice before the Courts of this
State, affirms the following to be true:
I am associated with the law firm of WILSON, ELSER, MOSKOWITZ, EDELMAN &
DICKER LLP, attorneys for the answering defendant in this action. I have read the following
Verified Answer with Cross-Claims and know its contents. Its contents are true to my own
knowledge, except as to those matters which are stated to be alleged upon information and belief.
As to those matters which are alleged upon information and belief, I believe them to be true. The
grounds of my belief as to those matters which are not stated upon my own knowledge are the
contents of the file maintained in connection with this matter by my office.
This verification is made by me and not by the answering defendant since the answering
defendant’s principal place of business is not located in the same county as my office.
Dated: White Plains, New York
July 7, 2017
______________________________________
RYAN A. MCKEON
12
6587447v.1
12 of 12
Preview
FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------- x Index No.: 154984/2017 ROSE VRABEL : : Plaintiff, : VERIFIED ANSWER : WITH CROSS-CLAIMS - against - : : CHANDRA DAS SUJAN, RAJASH SHAHA and UBER : TECHNOLOGIES, INC., : : Defendants. : : : ----------------------------------------- x Defendant, UBER TECHNOLOGIES, INC., by its attorneys, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, as and for an Answer to the plaintiff’s Verified Complaint, allege upon information and belief the following: 1. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “1” of plaintiff’s Verified Complaint. 2. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “2” of plaintiff’s Verified Complaint. 3. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “3” of plaintiff’s Verified Complaint. 4. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “4” of plaintiff’s Verified Complaint. 5. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “5” of plaintiff’s Verified Complaint. 6. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “6” of plaintiff’s Verified Complaint. 1 6587447v.1 1 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 7. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “7” of plaintiff’s Verified Complaint. 8. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “8” of plaintiff’s Verified Complaint. 9. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “9” of plaintiff’s Verified Complaint. 10. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “10” of plaintiff’s Verified Complaint. 11. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “11” of plaintiff’s Verified Complaint. 12. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “12” of plaintiff’s Verified Complaint. 13. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “13” of plaintiff’s Verified Complaint. 14. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “14” of plaintiff’s Verified Complaint. 15. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “15” of plaintiff’s Verified Complaint. 16. Deny each and every allegation contained in paragraph “16” of plaintiff’s Verified Complaint. 17. Admit the allegations contained in paragraph contained in paragraph “17” of plaintiff’s Verified Complaint. 2 6587447v.1 2 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 18. Admit that Uber Technologies, Inc. is a foreign corporation authorized to conduct business in the State of New York. Uber Technologies, Inc. denies any remaining allegations contained in paragraph “18” of plaintiff’s Verified Complaint. 19. Deny each and every allegation contained in paragraph “19” of plaintiff’s Verified Complaint. 20. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “20” of plaintiff’s Verified Complaint. 21. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “21” of plaintiff’s Verified Complaint. 22. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “22” of plaintiff’s Verified Complaint. 23. Deny each and every allegation contained in paragraph “23” of plaintiff’s Verified Complaint. 24. Deny each and every allegation contained in paragraph “24” of plaintiff’s Verified Complaint. 25. Deny each and every allegation contained in paragraph “25” of plaintiff’s Verified Complaint. 26. Deny each and every allegation contained in paragraph “26” of plaintiff’s Verified Complaint. 27. Deny each and every allegation contained in paragraph “27” of plaintiff’s Verified Complaint. 28. Deny each and every allegation contained in paragraph “28” of plaintiff’s Verified Complaint. 3 6587447v.1 3 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 29. Deny each and every allegation contained in paragraph “29” of plaintiff’s Verified Complaint. 30. Deny each and every allegation contained in paragraph “30” of plaintiff’s Verified Complaint. 31. Deny each and every allegation contained in paragraph “31” of plaintiff’s Verified Complaint. Uber Technologies, Inc. expressly objects to the use of the phrase “Uber driver” as that phrase is undefined rendering this allegation vague, ambiguous, and unintelligible. 32. Deny each and every allegation contained in paragraph “32” of plaintiff’s Verified Complaint. Uber Technologies, Inc. expressly objects to the use of the phrase “Uber driver” as that phrase is undefined rendering this allegation vague, ambiguous, and unintelligible. 33. Deny each and every allegation contained in paragraph “33” of plaintiff’s Verified Complaint. Uber Technologies, Inc. expressly objects to the use of the phrase “Uber drivers” and “Uber customers” as that phrase is undefined rendering this allegation vague, ambiguous, and unintelligible. 34. Deny each and every allegation contained in paragraph “34” of plaintiff’s Verified Complaint. 35. Deny each and every allegation contained in paragraph “35” of plaintiff’s Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “35” of plaintiff’s Verified Complaint insofar as they relate to any other defendant. 36. Deny each and every allegation contained in paragraph “36” of plaintiff’s Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and 4 6587447v.1 4 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “36” of plaintiff’s Verified Complaint insofar as they relate to any other defendant. 37. Deny each and every allegation contained in paragraph “37” of plaintiff’s Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “37” of plaintiff’s Verified Complaint insofar as they relate to any other defendant. 38. Deny each and every allegation contained in paragraph “38” of plaintiff’s Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “38” of plaintiff’s Verified Complaint insofar as they relate to any other defendant. 39. Deny each and every allegation contained in paragraph “39” of plaintiff’s Verified Complaint. 40. Deny each and every allegation contained in paragraph “40” of plaintiff’s Verified Complaint. Uber Technologies, Inc. expressly objects to the use of the phrase “Uber driver” as that phrase is undefined rendering this allegation vague, ambiguous, and unintelligible. 41. Deny each and every allegation contained in paragraph “41” of plaintiff’s Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “41” of plaintiff’s Verified Complaint insofar as they relate to any other defendant. Uber Technologies, Inc. expressly objects to the use of the phrase “Uber motor vehicle” and “Uber driver” as that phrase is undefined rendering this allegation vague, ambiguous, and unintelligible. 5 6587447v.1 5 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 42. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “42” of plaintiff’s Verified Complaint. 43. Deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “43” of plaintiff’s Verified Complaint. 44. Deny each and every allegation contained in paragraph “44” of plaintiff’s Verified Complaint insofar as they relate to the defendant UBER TECHNOLOGIES, INC., and deny knowledge or information sufficient to form a belief as to the allegations contained in paragraph “44” of plaintiff’s Verified Complaint insofar as they relate to any other defendant. 45. Deny each and every allegation contained in paragraph “45” of plaintiff’s Verified Complaint and respectfully refer questions of law to the Court. 46. Deny each and every allegation contained in paragraph “46” of plaintiff’s Verified Complaint and respectfully refer questions of law to the Court. 47. Deny each and every allegation contained in paragraph “47” of plaintiff’s Verified Complaint. AS AND FOR A FIRST AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: The answering defendant reserves the right to claim the limitation of liability for non- economic loss provided pursuant to Article 16 of the CPLR. AS AND FOR A SECOND AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: The plaintiff assumed the risk of all the dangers intended upon the activity upon which the plaintiff was engaged at the time of the alleged accident and is therefore barred from recovering on the claim asserted. All the damages and risks incident to the situation mentioned in the Verified Complaint were open, obvious and apparent, and were known and assumed by the 6 6587447v.1 6 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 plaintiff. In assuming the risks attendant with her conduct, the plaintiff failed to act as a reasonable and prudent person with regard to her own safety and well being. AS AND FOR A THIRD AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: To the extent that the plaintiff recovers any damages for the cost of medical care, dental care, custodial care or rehabilitative services, loss of earnings and/or other economic loss, the amount of the award shall be reduced by the sum total of all collateral reimbursements, from whatever source, whether it be insurance, the Patient Protection and Affordable Care Act Social Security payments, Workers’ Compensation, employee benefits or other such programs, in accordance with the provisions of CPLR §4545. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: Any injuries sustained or suffered by the plaintiff as stated in the Verified Complaint were caused in whole or in part by the comparative/contributory negligence of the plaintiff. If a verdict or judgment is awarded to the plaintiff, then and in that event, the damages shall be reduced in the proportion which the culpable conduct attributable to the plaintiff bears to the culpable conduct which caused the damages. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: If plaintiff was caused to sustain damages at the time and place set forth in the Verified Complaint, it was due to the culpable conduct of person or persons presently unknown. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: Plaintiff failed to mitigate, obviate, diminish or otherwise act to lessen or reduce the injuries, damages and disabilities alleged in the Verified Complaint. 7 6587447v.1 7 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: The answering defendant specifically denies ownership, operation and control of the motor vehicle alleged in the Verified Complaint at the time, date, and place referred to in the Verified Complaint. AS AND FOR AN EIGHTH AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: As to each and every cause of action contained therein, the answering defendant alleges that the Verified Complaint and each cause of action set forth therein are barred, in whole or in part, under the independent contractor defense, as co-defendant, RAJASH SHAHA, was an independent contractor responsible for his own means and methods, making the doctrine of respondeat superior and agency inapplicable. AS AND FOR A NINTH AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: Plaintiff’s Verified Complaint fails to join appropriate parties in this action. AS AND FOR A TENTH AFFIRMATIVE DEFENSE, DEFENDANT, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: Plaintiff’s Verified Complaint fails to state a cause of action upon which relief can be granted. AS AND FOR AN ELEVENTH AFFIRMATIVE DEFENSE, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: Plaintiff did not sustain a serious injury as defined by 5102(d) of the New York State Insurance Law. AS AND FOR A TWELFTH AFFIRMATIVE DEFENSE, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: The alleged injuries suffered by plaintiff were not proximately caused by the alleged accident at issue in this action or by any actions of the answering defendants. 8 6587447v.1 8 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 AS AND FOR A THIRTEENTH AFFIRMATIVE DEFENSE, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: Plaintiff failed to utilize appropriate and available seatbelt restraints. Such failure is pleaded as both a complete and partial defense as well as mitigation of any and all damages. In failing to exercise ordinary care in making use of available seatbelt restraints, plaintiff acted unreasonably and disregarded plaintiff’s own best interests. AS AND FOR A FOURTEENTH AFFIRMATIVE DEFENSE, UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES: Upon information and belief, the claim alleged in plaintiff’s Verified Complaint is subject to an arbitration agreement between plaintiff and Uber Technologies Inc., such that this matter should be properly brought before a qualified arbitrator rather than in the instant court. ON A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANTS, CHANDRA DAS SUJAN AND RAJASH SHAHA, DEFENDANT UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: If the plaintiff was caused to sustain damages at the time and place set forth in the plaintiff’s Verified Complaint through any carelessness, recklessness, and/or negligence other than the plaintiff’s own, such damages were sustained in whole due to the primary and active carelessness, recklessness, and/or negligent acts or omissions, or commissions by the co- defendants CHANDRA DAS SUJAN and RAJASH SHAHA, their agents, servants, and/or employees with the negligence of the answering defendant, if any, being secondary, derivative, and by operation of law. Further, if plaintiff should recover judgment against the answering defendant, then the answering defendant is entitled to common law indemnification from and judgment over and against co-defendants CHANDRA DAS SUJAN and RAJASH SHAHA, for all or any part of any verdict or judgment which the plaintiff may recover in such amounts as the Court or jury may direct. By reason of the action, said answering defendant has been and will be put to costs and expenses, including attorneys’ fees. 9 6587447v.1 9 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 ON A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANTS, CHANDRA DAS SUJAN AND RAJASH SHAHA, DEFENDANT UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: If the plaintiff was caused to sustain damages at the time and place set forth in the plaintiff’s Verified Complaint through any carelessness, recklessness and/or negligence other than the plaintiffs’ own, such damages were sustained in whole or in part by reason of the carelessness, recklessness, and negligence, and/or negligent acts or of omission or commission by the co-defendants, CHANDRA DAS SUJAN and RAJASH SHAHA, their agents, servants, and/or employees. Further, if plaintiff should recover judgment against the answering defendant, then the co-defendants, CHANDRA DAS SUJAN and RAJASH SHAHA, shall be liable to the answering defendant on basis of apportionment of responsibility for the alleged occurrence, and the answering defendant is entitled to contribution from and judgment over and against the co- defendants for such or part of any verdict or judgment which plaintiff may recover in such amounts as a jury or Court may direct. ON A BASIS FOR AFFIRMATIVE RELIEF AND AS AND FOR A THIRD CROSS-CLAIM AGAINST DEFENDANT, RAJASH SHAHA, DEFENDANT UBER TECHNOLOGIES, INC., RESPECTFULLY ALLEGES UPON INFORMATION AND BELIEF: Prior to the date of accident, the co-defendant, RAJASH SHAHA entered into an agreement, whereby co-defendant, RAJASH SHAHA agreed, in part, to indemnify, defend, and hold harmless the answering defendant from any injuries and damages in connection with the accident in question. It is further understood and agreed that co-defendant, RAJASH SHAHA would provide appropriate insurance coverage. Based upon said co-defendant’s RAJASH SHAHA, failure to indemnify, defend, and hold harmless the answering defendant, the answering defendant has sustained costs and expenses including attorneys’ fees in the defense of this litigation and that said co-defendant is liable to the answering defendant for same. 10 6587447v.1 10 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 WHEREFORE, defendant, UBER TECHNOLOGIES, INC., demands judgment dismissing the plaintiff’s Verified Complaint and further demands judgment over and against co-defendants, CHANDRA DAS SUJAN and RAJASH SHAHA, for the amount of any judgment obtained against the answering defendant or on the basis of apportionment of responsibility, or in such amounts as a jury or Court may direct, together with the costs, disbursements and attorneys’ fees of this action and any expenses incurred in the defense thereof. Dated: White Plains, New York July 7, 2017 Yours, etc., WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: Ryan A. McKeon Attorneys for Defendant UBER TECHNOLOGIES INC., 1133 Westchester Avenue White Plains, New York 10604 (914) 323-7000 File No.: 15422.00117 TO: WINGATE, RUSSOTTI, SHAPIRO & HALPERIN, LLP Attorneys for Plainitff 420 Lexington Avenue Suite 2750 New York, NY 10170 CHANDRA DA SUJAN 813 Avenue C, Apt 6 Brooklyn, NY 11218 RAJASH SHAHA 736 10th Street Brooklyn, NY 11230 11 6587447v.1 11 of 12 FILED: NEW YORK COUNTY CLERK 07/07/2017 03:25 PM INDEX NO. 154984/2017 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 07/07/2017 ATTORNEY’S VERIFICATION RYAN A. MCKEON, an attorney duly admitted to practice before the Courts of this State, affirms the following to be true: I am associated with the law firm of WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP, attorneys for the answering defendant in this action. I have read the following Verified Answer with Cross-Claims and know its contents. Its contents are true to my own knowledge, except as to those matters which are stated to be alleged upon information and belief. As to those matters which are alleged upon information and belief, I believe them to be true. The grounds of my belief as to those matters which are not stated upon my own knowledge are the contents of the file maintained in connection with this matter by my office. This verification is made by me and not by the answering defendant since the answering defendant’s principal place of business is not located in the same county as my office. Dated: White Plains, New York July 7, 2017 ______________________________________ RYAN A. MCKEON 12 6587447v.1 12 of 12