Motion-Secondary: Rose Vrabel v. Chandra Das Sujan, Rajash Shaha, Uber Technologies, Inc.

On May 31, 2017 a Motion-Secondary was filed involving a dispute between Rose Vrabel, and Chandra Das Sujan, Rajash Shaha, Uber Technologies, Inc., for Torts - Motor Vehicle in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 09/18/2019 04:53 PM INDEX NO. 154984/2017
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 09/18/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

----------------------------------------- ---------------------X
ROSE VRABEL, AFFIRMATION IN
SUPPORT

Plaintiff(s),
Index #: 154984/17
-against-

CHANDRA DAS SUJAN, RAJASH SHAHA and
UBER TECHNOLOGIES, INC.,

Defendant(s).
-----------------------------------------------------------------------X

Andrea Borden, an attorney duly admitted to practice law in the State of New York,

affirms under penalty and perjury as follows:

1. I am associated with WINGATE, RUSSOTTI, SHAPIRO & HALPERIN, LLP,

attorneys for Plaintiff(s) in this action and am fully familiar with the facts and circumstances

hereinafter set forth.

2. This affirmation is made in support of the within application for an Order

pursuant to CPLR 3025(b) granting plaintiff leave to serve an Amended Summons and

"A,"
Supplemental Complaint in the form annexed hereto as Exhibit to compel the deposition of

a witness from UBER TECHNOLOGIES INC. pursuant to CPLR 3124 and for such other and

further relief as to this Court may seem just and proper.

3. This action was commêñced to recover damages for serious and permanent

personal injuries sustained by the plaintiff ROSE VRABEL, following a motor vehicle accident

occurring on September 22, 2016.

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4. An action in this case was commenced by the service of a Summons and

Complaint upon the named defendant(s). A copy of said Summons and Verified Complaint and

Answers annexed hereto as Exhibit "B".

5. During the course of discovery, it was determined that Ms. Vrabel eñgaged the

defendant rideshare application, UBER TECHNOLOGIES, INC. to obtain a car service for

herself. (See Plaintiff's deposition, annexed hereto as Exhibit "C). Ms. Vrabel was a passenger in

the vehicle owned by defendant CHANDRA DAS SUJAN and operated by defendant RAJASH

SHAHA. (See the Police Report, annexed hereto as Exhibit "D"). Mr. SHAHA was driving as an

Uber driver at the time of the accident and agreed to provide a ride for Ms. Vrabel pursuant to

the Uber rideshare application. Mr. SHAHA took complete responsibility for the happening of

the accident as he rear-ended a stopped vehicle in front of him. (See the deposition of SHAHA

annexed hereto as Exhibit "E").

6. UBER TECHOLOGIES INC., owns and operates a rideshare application and

website. Ms. Vrabel was a customer of that application and website. Specifically available to her

as a potential customer of the rideshare application and website was an infographic annexed

"F."
hereto as Exhibit Said infographic that was available to this potential rideshare user clearly

dollars'
states that once you are in an Uber ride on the ride, you are entitled to 1 million worth of

insurance coverage in the event of an accident. Ms. Vrabel viewed said infographic, reasonably

relied upon said infographic, and based upon that reasonable reliance, she engaged the rideshare

"G"
application to obtain a ride. See Exhibit affidavit of Ms. Vrabel. Thereafter, the vehicle she

contracted for caused a serious accident which left her seriously injured, requiring a major spinal

surgery consisting of a discectomy and fusion of her cervical spine.

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7. The initial Summons and Complaint was brought against the owner, driver and

UBER TECHNOLOGIES INC, all of whom have been litigating this case. Thus far, depositions

have begun but are not complete. Specifically, a witness from UBER with knowledge of the

infographic remains outstanding. Settlement discussions have been had between your affirmant

and counsel for UBER whose position is that UBER bears no responsibility for this accident and

that Ms. Vrabel should be limited to collecting the insurance coverage maintained by the owner

and the driver, the policy limits of which are $100,000.00

8. The proposed amended complaint contains no new parties. It merely alleges that

UBER TECHNOLOGIES, INC. through their dissemination of this infographic on their

application and website misrepresented and/or omitted a material fact with respect to the

insurance coverage available to riders while on a ride in an UBER rideshare vehicle, that the

defendants knew this was false, that such infographic was made to induce reliance upon the facts

or false facts contained therein and that the plaintiff reasonably relied upon such facts to her

detriment and has sustained injuries as a result.

9 Plaintiff further requests that service of the Amended Summons and Supplemental

Complaint shall be satisfied on defendant CHANDRA DAS SUJAN, RAJASH SHAHA and

UBER TECHNOLOGIES, INC.by the service of the instant motion, to which the new Complaint

is attached.

10. There can be no claim of prejudice because the statute of limitations does not

expire until September 23, 2019.

11. It is axiomatic that motions to amend pleadings should be granted freely unless it

is palpably insufficient or actual prejudice results. See CPLR 3025(b); McCaskey. Davies an_d

Associates. Inc. v. New York City Health & Hospitals Corp., 59 N.Y.2d 755 (1983);

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N_Lssenbaum v. Ferazzoli. 171 A.D.2d 654, 567 N.Y.S.2d 135 (2nd Dept. 1991): Haven

Associates v. Duoro Realty Corp., 96 A.D.2d 526, 464 N.Y.S.2d 1007 (2nd Dept. 1983).

12. There can be no prejudice in the instant matter as all facts alleged in the amended

complaint are well known to the defendant UBER. The basis of the amended complaint is an

infographic that the defendant created and disseminated on their application and on their website

for potential riders to view. There are no new parties added as a result of the proposed

amendment, the case is still in the discovery stages and the amendment being sought is within

the statute of limitations. Leave to amend pleadings should be freely granted especially "where

the proposed amendment is not palpably insufficient or patently devoid of merit, and there is no

evidence that it would prejudice or surprise the opposing party, since the proposed amendment

complaint"
arises out of the same facts as those set forth in the Rocha v. GRT Const. of New

(2"d
York, 145 A.D3d 926 Dept 2016) See Lynch v. Baker, 138 A.D.3d 695, 697, 30 N.Y.S.3d

126; Ciminello v. Sullivan, 120 A.D.3d 1176, 1177, 992 N.Y.S.2d 291; cf. Friedman v. 1753

Realty Co., 117 A.D.3d 781, 783, 986 N.Y.S.2d 175). Where this standard is met, "the

further"
sufficiency or underlying merit of the proposed amendment is to be examined no (Lynch

v. Baker, 138 A.D.3d at 698, 30 N.Y.S.3d 126 [internal quotation marks omitted]; see Lucido v.

Mancuso, 49 A.D.3d 220, 227-229, 851 N.Y.S.2d 238).

13. There can also be no claim that the amended complaiñt is palpably insufficient

nor palpably devoid of merit. The infographic disseminated by UBER states that there is 1

dollars'
million worth of coverage once the ride is engaged. UBER's position in the settlement

negotiations for this case is that said statemeñts are false. Ms. Vrabel's affidavit makes clear that

she viewed this infographic and relied upon it when deciding to engage UBER for rideshare

services and she is now alleging serious injuries as a result of that ride, the pain and suffering

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damages for which far exceed the amount of coverage maintained by the owner and operator and

therefore she is injured as a result of this reliance. Accordingly, there can be no argument made

by UBER that the complaint is patently devoid of merit. Where there can be no argument that the

amended complaint is patently devoid of merit, the "sufficiency or underlying merit of the

further"
proposed amendment is to be examined no See Lynch v. Baker, 138 A.D.3d at 698.

defendants'
14. Also, the infographic was marked at depositions in November 2018

and again in May 2019 when defendant UBER's witness was specifically questioned about this.

When a new theory of recovery is based upon the same facts alleged in initial complaint,

discovery is ongoing and defendants have already been apprised of the new theory of recovery, it

(2nd
is error to not allow amendment of complaint. See Bobrowsky v. Lexis, 215 A.D2d 424

Dept. 1995).

15. Plaintiff also requests that this Court compel UBER TECHNOLOGIES INC. to

produce a witness with knowledge of this infographic for a deposition. UBER previously

"H."
produced Chad Dobs, a Senior Manager with UBER TECHNOLIGISTES INC., see Exhibit

It is submitted the Mr. Dobbs had insufficient knowledge of the relevant facts of this case and

UBER should be ordered to produce a witness with knowledge of the infographic. Specifically,

when asked what the insurance requirements were in New York City, he responded "I don't

particulars." "H"
know the See Exhibit page 15. He was "not familiar with policies or

procedures" "H"
with regard to insuring vehicles. See Exhibit page 16.

16. Further, when show the subject infographic, he had never seen it before and knew

"H"
nothing about it.See Exhibit at pages 17-18. Thereafter, this office served a Notice of

"I."
Deposition specifically for a witness with knowledge of this infographic, see Exhibit

^5"

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17. Pursuant to CPLR 3101 "there shall be full disclosure of all matter material and

necessary in the prosecution or defense of an action, regardless of the burden of proof, by... a

party."
party, or the officer, director, member, agent or employee of a It is submitted that a

witness who is an employee of the defendant UBER TECHNOLOGIES INC, with knowledge of

the infographic relied upon by the plaintiff, to her detriment in entering into a rideshare

agreement with UBER, is material and necessary to the prosecution of this action. "The words

necessary'
'material and as used in section 3101 must be interpreted liberally to require

disclosure, upon request, of any facts bearing on the controversy which will assist preparation for

prolixity"
trial by sharpêñing the issues and reducing delay and Matter of Kapon v. Koch, 23

N.Y.3d 32, 38, 988 N.Y.S.2d 559, 11 N.E.3d 709 [internal quotation marks omitted]; see Gould

v. Decolator, 131 A.D.3d 445, 447, 15 N.Y.S.3d 138.

18. Defendants have refused to produce such a witness and itis respectfully requested

(2nd
that this Court compel such production. See Stein v. City of New York, 12 A.D.3d 587

2004), where defendants produced a witness who had no knowledge of a document at issue and

were ordered to produce a new witness. "The plaintiffs satisfied the two requirements for the

production of additional witnesses: they demonstrated that the witness from the DEP had

insufficient knowledge and that there was a substantial likelihood that another witness would

possess material and necessary information (see Ramkissoon v. Board of Edue. of City of N.Y.,

227 A.D.2d 461, 643 N.Y.S.2d 366; Zollner v. City of New York, 204 A.D.2d 626, 612

N.Y.S.2d 627; cf. Pomilio-Young v. City of New York, 7 A.D.3d 600, 775 N.Y.S.2d 906).

Similarly in the instant action, the first witness produced had no knowledge of the subject

infographic and as the infographic was generated and disseminated by UBER TECHNOLOGIES

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INC, someone else at UBER must have material and necessary information relative to this

infographic.

19. Defendant UBER TECHNOLOGIES INC, did not object to this Notice of

Deposition. If a party fails to object within twenty days from the service of the notice, a court's

review will be limited to determining whether the requested material is privileged under CPLR

3101(b) or the demand is palpably improper. See, e.g., Recine v. C_ity_of New York, 156 A.D.3d

836, 65 N.Y.S.3d 788 (2d Dep't 2017); Murphy v. Hamilton, 90 A.D.3d 1294, 1295, 934

N.Y.S.2d 595, 597 (3d Dep't 2011).

20. Last, this motion is being made with the court's permission pursuant to the last

"J."
Order dated September 5, 2019, annexed hereto as Exhibit

WHEREFORE, plaintiff respectfully request the within motion be granted in all respects

and that this Court grant such other and further relief as it deems just and proper.

Dated: New York, New York
September 17, 2019

Respectfully ours,

Andrea Borden

7''

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Document Filed Date

September 18, 2019

Case Filing Date

May 31, 2017

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