Motion-Secondary: Akeya P. Clarke v. Francisco Brivard, Lyft, Inc., Vela Brivarderilus

On September 10, 2021 a Motion-Secondary was filed involving a dispute between Akeya P. Clarke, and Francisco Brivard, Lyft, Inc., Vela Brivarderilus, for Torts - Motor Vehicle in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 12/01/2022 12:10 PM INDEX NO. 523184/2021
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/01/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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AKEYA P. CLARKE,

Plaintiff,
AFFIRMATION IN OPPOSITION
-against-
Index. No. 523184/21
FRANCISCO BRIVARD, LYFT, INC., and
VELA BRIVARDERILUS, Mot. Seq. 001

Defendants.
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David L. Rosenthal, Esq., an attorney duly admitted and licensed to practice law before

the courts of the State of New York, affirms the following upon information and belief under

penalty of perjury pursuant to CPLR 2106:

1) I am a partner of LEWIS BRISBOIS BISGAARD & SMITH, LLP, attorneys for

Defendant LYFT, INC. (“Lyft”), and, as such, am fully familiar with the facts and circumstances

herein as based upon my review of the files maintained by this office.

2) I submit this Affirmation in opposition to Plaintiff AKEYA P. CLARKE’s instant

Motion (mot. seq. 001) seeking partial summary judgment on the issue of liability as against all

Defendants and the striking of Defendants’ affirmative defenses of culpable conduct,

contributory negligence, assumption of risk, and failure to wear a seatbelt.

PRELIMINARY STATEMENT

3) This case concerns an alleged August 17, 2020, rear-end collision involving a

vehicle owned by Defendant VELA BRIVARDERILUS and operated by Defendant

FRANCISCO BRIVARD (hereinafter the “Brivarderilus/Brivard vehicle”) at the intersection of

Flushing Avenue and Bedford Avenue, in Brooklyn, New York. Plaintiff alleges that she was a

passenger in Non-Party PAUL KIRK JOSEPH’s vehicle (hereinafter the “Joseph/Clarke

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Vehicle”), which is said to have been rear-ended the Brivarderilus/Brivard vehicle at the time of

accident.

4) Plaintiff’s Complaint further alleges, without proving, that Brivard operated the

Brivarderilus/Brivard vehicle “in the course of employment” with Lyft. As it is undisputed that

Lyft neither owned nor operated the Brivarderilus/Brivard vehicle, Lyft’s purported liability is

predicated entirely upon the flawed and unproven theory that it is somehow “vicariously liable”

for Brivard’s alleged negligence.

5) Plaintiff’s request for partial summary judgment as against Lyft specifically is

wholly improper and should be denied outright. Initially, Plaintiff’s Statement of Material Facts

fails to even allege that Lyft was Brivard’s “employer,” and the issue is therefore not properly

before the Court.

6) Moreover, in addition to offering no legal authority to support this proposition,

Plaintiff fails to offer even a scintilla of evidence in this regard: Plaintiff relies entirely upon her

own Affidavit (hereinafter the “Clarke Affidavit”), Paul Kirk Joseph’s Affidavit (hereinafter the

“Joseph Affidavit”), and a police report to carry her prima facie burden, but, like her Statement

of Material facts, none even alleges, much less proves, that Brivard was an “employee” of Lyft.

7) Yet the question of whether one is an employee, as opposed to an independent

contractor to whom vicarious liability cannot attach, is one of law that hinges on control.

“Control of the method and means by which the work is to be done is the critical factor in

determining whether one is an independent contractor or employee for purposes of tort liability.”

Nachman v. Koureichi, 165 A.D.3d 818, 820 (2d Dep’t 2018). The question of control requires

analysis of “whether [the] worker (1) worked at her or his own convenience, (2) was free to

engage in other employment, (3) received fringe benefits, (4) was on the employer’s payroll, and

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(5) was on a fixed schedule.” Ibid. See also Chaouni v. Ali, 105 A.D.3d 424 (1st Dep’t 2013)

(holding dismissal appropriate as against livery defendant because driver was an independent

contractor, as opposed to an employee).

8) Plaintiff’s flippant assertion that Lyft “employed” Brivard—found solely in her

Complaint, which is not even verified pursuant to CPLR 3020—cannot establish any of the

foregoing elements as a matter of law. And any bare assertion by Plaintiff or Joseph to the

contrary amounts to impermissible lay opinion as to a legal conclusion. See, e.g., Colon v. Rent-

A-Ctr., Inc., 276 A.D.2d 58, 61 (1st Dep’t 2000) [“[O]pinion as to a legal conclusion is

impermissible.”]).

9) Plaintiff’s request for partial summary judgment as against Lyft should be

recognized and rejected for what it is: A hasty attempt to lump the Defendants together while

ignoring the differing legal and evidentiary standards applicable to each. Having failed to carry

her prima facie burden outright as against Lyft, Plaintiff’s Motion is properly denied as against

Lyft, even if she could prevail as against Brivarderilus or Brivard.

10) Nonetheless, Plaintiff’s request for partial summary judgment as against

Brivarderilus and Brivard is equally improper and should be denied as substantively and

procedurally flawed.

11) Substantively, Plaintiff is again wrong on the law in asserting that her purported

status as an “innocent passenger” entitles her to partial summary judgment on the issue of

liability. Both the Second and First Departments have repeatedly rejected this position out of

hand. See Phillip v. D&D Carting Co., Inc., 136 A.D.3d 18, 24 (2d Dep’t 2015) (“If the plaintiff

fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if

triable issues of fact are raised by defendants in opposition … summary judgment on the issue of

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liability must be denied, even if the moving plaintiff was an innocent passenger.”); and Campbell

v. Mincello, 184 A.D.3d 412, 412 (1st Dep’t 2020) (“[A]n innocent passenger must still establish

a defendant driver’s liability under traditional principles of tort liability in order to prevail on the

issue of liability against that driver.”).

12) Procedurally, pursuant to CPLR 3212(f), a “summary judgment motion is

properly denied as premature when the nonmoving party has not been given reasonable time and

opportunity to conduct disclosure relative to pertinent evidence that is within the exclusive

knowledge of the movant or a codefendant.” Gitman v. Martinez, 139 A.D.3d 1175, 1176 (3d

Dep’t 2016) (holding summary judgment premature in rear-end collision case absent

depositions). See also Town of Riverhead v. County of Suffolk, 66 A.D.3d 1004, 1005 (2d Dep’t

2009) (“[S]ummary judgment would be premature absent depositions of the parties.”).

13) This is exactly the case here, where depositions are yet to occur, and Plaintiff

seeks the drastic remedies of summary judgment and the striking of affirmative defenses based

entirely upon uncorroborated affidavits and a police report that provides that Joseph made a

“sudden stop.” Moreover, Brivarderilus and Brivard are represented by separate counsel, and

Lyft, which is solely alleged to be vicariously liable, is therefore unable to formulate a coherent

picture of the underlying accident or explore potential defenses without depositions. As

information essential to Lyft’s opposition of the instant Motion is plainly entirely “within the

exclusive knowledge of the movant and [] codefendant[s],” Gitman, 139 A.D.3d at 1005, the

Motion is properly denied as premature in all respects.

14) As set forth at greater length below, the foregoing warrant denial of the instant

Motion in its entirety.

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COUNTER-STATEMENT OF FACTS AND PROCEDURAL HISTORY

15) Plaintiff commenced the action on or about September 10, 2021, by Summons

and Complaint.1 See NYSCEF doc. no. 1 (Summons and Verified Complaint).

16) The Complaint alleges that Brivard operated the Brivarderilus vehicle “within the

scope of his employment” with Lyft. See id. at ¶43.

17) Lyft joined issue on or about January 26, 2022, by Verified Answer. See

NYSCEF doc. no. 7 (Lyft’s Verified Answer).

18) Lyft’s Verified Answer objects to Plaintiff’s characterization of Brivard as an

employee as asserting a conclusion of law and asserts that “Lyft did not hire, control, or employ

Francisco Brivard.” Id. at ¶43. Lyft’s Answer further asserts that “Lyft did not own, operate,

control, maintain, manage, repair, or entrust the vehicle involved in the incident at issue.” Id. at

¶¶31-36.

19) Defendants Brivard and Brivarderilus joined issue by separate counsel on or about

February 14, 2022, by Verified Answer. See NYSCEF doc. no. 11 (Brivard and Brivarderilus

Verified Answer).

20) The Brivard/Brivarderilus Verified Answer also denies that Brivard was an

employee of Lyft and that Lyft had any ownership in the Briavrd/Brivarderilus vehicle. See id. at

p. 1.

21) A preliminary conference was held on or about March 28, 2022. Pursuant to the

resultant Preliminary Conference Order (NYSCEF doc. no. 15), depositions were required to be

completed by June 17, 2022.

1
Though the Complaint is titled a “Verified Complaint,” it contains no verification pursuant to CPLR
3020. See NYSCEF doc. no. 1.

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22) On or about August 18, 2022, a compliance conference was held. Pursuant to the

resultant Compliance Conference Order (NYSCEF doc. no 29), depositions were required to be

completed by December 30, 2022, and significant paper discovery was denoted as outstanding.

23) To date, however, depositions are yet to occur. Yet, Plaintiff now seeks the drastic

remedy of summary judgment and the striking of affirmative defenses. See NYSCEF doc. nos.

21-26.

The Clarke Affidavit

24) In her Affidavit (NYSCEF doc. 25), Plaintiff alleges nothing more than that she

was a seat-belted, “innocent passenger” in “a vehicle” that was rear-ended while stopped at a red

light. See Clarke Aff., ¶¶6-7, 9-10. Plaintiff then goes on to allege that the rear-ending vehicle

was owned by Brivarderilus and operated by Brivard while providing no basis of personal

knowledge for this assertion. See id. at ¶10.

25) While Plaintiff alleges that she was an “innocent passenger” and that she therefore

was “in no way responsible for the happening of th[e] accident,” id. at ¶10, she provides no

account of the happenings inside the Joseph/Clarke vehicle at the time of accident. Nor does she

aver that she did not cause Joseph to become distracted or otherwise affect his manner of driving

at the time of accident. As such, no factual support is provided for Plaintiff’s assertion that she

was an “innocent passenger.”

26) With respect to Lyft, the Clarke Affidavit is entirely silent; the Clarke Affidavit

makes no mention whatsoever of Lyft.

The Joseph Affidavit

27) Paul Kirk Joseph’s Affidavit (NYSCEF doc. no.26) is even more lacking in detail.

The Joseph Affidavit merely alleges that “At the time of accident, [he] had been stopped for a

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red light for about three (3) or four (4) seconds when [his] car was ‘suddenly’ hit from behind.”

Joseph Aff., ¶3.

28) The Affidavit provides no account of who or what rear-ended the Joseph/Clarke

vehicle and is therefore powerless to implicate Defendants on its face.

29) Likewise, the Affidavit itself calls into question the notion that any “sudden” or

“violent” rear-end collision ever occurred in annexing the following photograph that depicts no

“impact” or indentations:

30) Like the Clarke Affidavit, the Joseph Affidavit is equally silent as to Lyft; the

Joseph Affidavit makes no mention whatsoever of Lyft.

Certified Police Report

31) Plaintiff also relies upon a certified police report (NYSCEFdoc. no. 24) in an

attempt to carry her prima facie burden.

32) Curiously absent from Plaintiff’s supporting papers is any mention that the police

report recounts Brivard as providing that Joseph vehicle “stopped short.” See id. at p. 1.

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33) Moreover, like both the Clarke and Joseph Affidavits, the police report makes no

mention whatsoever of Lyft.

ARGUMENT

I. PLAINTIFF DOES NOT, AND CANNOT, DEMONSTRATE THAT LYFT WAS
BRIVARD’S EMPLOYER.

34) As an initial matter, Plaintiff’s Statement of Material Facts (NYSCEF doc. no.

19), says nothing of Lyft. The Statement of Material Facts does not allege that Lyft employed

Brivard or was otherwise in any way responsible for the underlying accident. These issues are

therefore not properly before the Court at this juncture, and the Court’s analysis with respect to

Lyft can stop here. See, e.g., Amos Fin. LLC v. Crapanzano, 73 Misc. 3d 448, 453 (Sup Ct,

Rockland Cty, July 30, 2021) (“[A] fortiori, a CPLR 3212 movant whose papers fail to satisfy

the condition precedent of [22 NYCRR 202.8-g] [] fails to put those facts before the Court in the

first instance.”).

35) Notwithstanding, in its Verified Answer, Lyft denies owning the

Brivarderilus/Brivard vehicle or employing Brivard. See NYSCEF doc. no. 7, ¶31-36, 43. This

is because Lyft is defined in the N.Y. Vehicle and Traffic Law (“VTL”) as a “transportation

network company,” or “TNC,” as it uses a digital network to connect passengers to drivers who

provide prearranged trips. See VTL 1691(3).2 Thus, Lyft does not own any of the vehicles

operated by drivers, who merely use the Lyft network to connect with riders, nor does it employ

drivers. See ibid.

2
“‘Transportation network company’ or ‘TNC’ means a person, corporation, partnership,
sole proprietorship, or other entity that is licensed pursuant to this article and is operating in
New York state exclusively using a digital network to connect transportation network company
passengers to transportation network company drivers who provide TNC prearranged trips.”
8

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36) Plaintiff therefore does not, and cannot, prove that Lyft owned the Brivarderilus

vehicle, and, indeed, the Clarke Affidavit avers to the contrary. See Clarke Aff., ¶10. Nor can

Plaintiff prove that Lyft can be held vicariously liable for Brivard’s alleged negligence under the

respondeat superior doctrine. See Devlin v. City of New York, 254 A.D.2d 16 (1st Dept. 1998)

(holding that issues of fact existed as to vicarious liability of car dispatch company and

independent-contractor drivers).

37) Plaintiff’s bare assertion that Brivard operated the Brivarderilus vehicle “within

the scope of his employment” with Lyft, found solely in her un-verified Complaint, is an

improper lay opinion as to a legal conclusion. As this improper assertion is the sole basis upon

which Plaintiff seeks summary judgment as against Lyft, her Motion fails at the outset. “[A]ny

expert or lay opinion as to legal conclusion is impermissible….” BCI Fin. Holdings LLC, 2022

NY Slip Op 31041(U) at **6 (citing Colon v. Rent-A-Ctr., Inc., 276 A.D.2d 58, 61 (1st Dep’t

2000) [“[O]pinion as to a legal conclusion is impermissible.”]). See also Episcopal Diocese of

Long Island v. St. Matthias Nondenominational Ministries, Inc., 157 A.D.3d 769, 771 (2d Dep’t

2018) (rejecting affidavit containing legal analysis and conclusions as improper opinion as to

legal conclusions); and Schulz v. Cuomo, 133 A.D.3d 945, 948 (3d Dep’t 2015) (same).

38) The question of whether one is an employee, as opposed to an independent

contractor to whom vicarious liability cannot attach, is itself a question of law that hinges on

“whether the alleged employer exercise[d] control over the results produced or the means used to

achieve the results.” Colon v. Compass Group USA, Inc., 188 A.D.3d 800, 801 (2d Dep’t 2020).

And the question of control requires analysis of “whether the worker (1) worked at his own

convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was

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on the employer’s payroll, and (5) was on a fixed schedule.” Bynog v. Cipriani Group, 1 N.Y.3d

193 (2003).

39) In Chaouni v. Ali, supra, for example, the First Department held that the

defendant-driver was an independent contractor, rather than an employee of the defendant-

franchisor, Dial 7. In coming to this conclusion, the court noted that Dial 7’s drivers owned their

own vehicles and were responsible for their maintenance, paid for insurance, and had unfettered

discretion to determine the days and times they worked. See Chaouni, 105 A.D.3d at 425. Dial 7

did not require its drivers to wear a uniform, nor did it have a dress code. Ibid. Its drivers were

free to accept or reject any dispatch, could take breaks or end their shifts at their will, and were

permitted to work for other livery base stations. Ibid. Dial 7’s drivers also kept a fixed

percentage of all fares and 100% of all tips. Ibid. Finally, Dial 7 did not withhold taxes and

issued Form 1099’s for tax purposes. Ibid.

40) Likewise, in Weinfeld v. HR Photography, Inc., 149 A.D.3d 1014 (2d Dep’t

2017), the Second Department held that a photographer was an independent contractor, rather

than an employee of the defendant, because the photographer utilized his own equipment, was

not provided a form W-2, and the defendant exercised “only minimal or incidental control over

[his] work.” Id. at 1015.

41) Here, unlike in Chaouni or Weinfeld, the record is devoid of even an iota of

evidence addressing the pivotal issue of control or the Bynog factors. Plaintiff’s Statement of

Material Facts, pleadings, police report, and the Clarke and Joseph Affidavits are entirely silent

on the issue.

42) Having therefore failed to carry her prima facie burden outright as against Lyft,

the Motion is properly denied as against Lyft, even if Plaintiff could prevail as against

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Brivarderilus or Brivard, and no burden has shifted to Lyft to raise a material issue of fact at this

juncture. Alvarez v. Prospect Hosp., 68, N.Y.2d 320, 325 (1986) (“Failure to make such prima

facie showing requires denial of the motion, regardless of the sufficiency of the opposing

papers.”).

II. PLAINTIFF’S MOTION IS PALPABLY PREMATURE IN THE ABSENCE OF
DISCOVERY AND DEPOSITIONS.

43) Lyft aside, the Motion is properly denied as premature as against all Defendants,

regardless, given the total absence of any meaningful opportunity for discovery at this stage of

litigation.

44) CPLR 3212(f) gives the Court broad discretion to deny a motion for summary

judgment where, as here, there is “disclosure to be had….”

45) A motion for summary judgment is properly denied as premature where

significant and/or potentially relevant discovery, including depositions, remain outstanding. See

Sovereve v. Plaza Construction Corp., 31 N.Y.3d 936, 937 (2018) (summary judgment

premature where “requested discovery could aid in establishing what happened, and the note of

issue was … [yet] to be filed”); and Groves v. Land’s End Housing Co., Inc., 80 N.Y.2d 978

(1992) (holding Appellate Division properly denied summary judgment where defendants

“needed more discovery time to depose witnesses … and … discovery timetables set forth in a

preliminary conference order had not yet expired”).

46) For it is fundamental that “A party should be permitted a reasonable opportunity

for discovery prior to the determination of a motion for summary judgment.” General Electric

Capital Auto Lease v. Stephens, 248 A.D.2d 668, 669 (2d Dep’t 1998). See also Berchini v.

Silverite Construction Co., 289 A.D.2d 434, 434 (2d Dep’t 2001) (summary judgment

inappropriate where “parties established that they ha[d] not had an adequate opportunity to

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conduct discovery into several relevant issues, some of which are exclusively within the

knowledge of the appellant”).

47) Notably, in Worley v. Safemove Rental, 120 A.D.3d 667 (2d Dep’t 2014), the

Second Department held that CPLR 3211(f) required denial of summary judgment as premature

where, as here, the parties were yet to deposed and the defendants demonstrated that further

discovery might lead to relevant evidence as to the circumstances of the accident.

48) The First Department’s decision in Churaman v. C&B Electric, Plumbing &

Heating, Inc., 142 A.D.3d 485 (1st Dep’t 2016), is particularly instructive here. There, as here,

the plaintiff moved for partial summary judgment on the issue of liability prior to any significant

discovery or the plaintiff’s deposition, relying solely upon an uncorroborated affidavit attesting

to how the accident occurred. The Churaman court affirmed the trial court’s denial of that

plaintiff’s motion as premature and, in so doing, held,

Nonetheless, the plaintiff’s motion for summary judgment on the issue of
liability . . . insofar as asserted against [defendant] was premature since
there has been almost no discovery in the case and the plaintiff has not been
deposed. In the absence of discovery, YAM’s ability to defend is impaired,
since it is limited to the plaintiff’s own unchallenged account of the
accident, set forth in the affidavit he submitted in support of his motion for
summary judgment, and YAM has not had an opportunity to explore
potential defenses…. Id. at 486 (emphasis added).

49) As in Churaman, here, no substantive discovery has occurred, no party has been

deposed, and Plaintiff relies entirely upon uncorroborated accounts of the accident prepared in

the absence of depositions and solely for the purpose of the instant Motion. Under these

circumstances, Lyft is significantly prejudiced in not having had an opportunity to conduct

discovery into the nature of the accident and the apportionment of negligence between Plaintiff,

Joseph, and Brivard. This office does not represent Brivard, and Lyft was not present at the scene

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of the subject accident. Therefore, Lyft has no firsthand knowledge of the liability picture or the

requisite information needed to develop its defenses.

50) Several recent decisions illustrate that a premature summary judgment motion by

a plaintiff against a transportation network company, such as Lyft, should be denied prior to

discovery and depositions on this very basis.

51) In Robinson v. Holloway, 2021 WL 834312 (Sup. Ct., Queens Cty, 2020), the

plaintiff moved for summary judgment based on a theory of a rear-end collision before discovery

had taken place. Similar to this case, the plaintiff was allegedly injured in a vehicle that was

active on the Uber application. This Court denied the motion, explaining: “Defendants Eins and

Uber have raised issues of fact . . . [as to] whether they are vicariously liable . . . [and therefore,]

the branch of the motion seeking summary judgment on the issue of liability against Defendants

Eins and Uber is denied.”

52) In Torres v. Metro Livery Leasing, Index No. 30532/2019E, NYSCEF doc. no. 35

(Sup. Ct., Bronx Cty, 2021), the plaintiff was a passenger in a vehicle that was owned and

operated by a livery company, with whom she had connected using the Lyft platform. The

plaintiff alleged that the vehicle rear-ended another stopped vehicle. The plaintiff moved for

summary judgment on liability prior to depositions and discovery, relying upon an

uncorroborated affidavit and a police report—exactly the case here. Lyft argued that it did not

own the vehicle in question and that the driver was not its employee. The court denied summary

judgment as against Lyft and explained, “questions of fact exist as to whether [Lyft] is

responsible for the actions of the driver, and the degree of control, if any it may have had over

him.”

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53) Finally, in Miller v. Lux Credit Consultants, LLC., et. al., Index No. 523482/2020,

NYSCEF doc. no. 35 (Sup. Ct., Kings Cty. 2021), the plaintiff was a passenger in a vehicle

owned by co-defendant Lux Credit and driven by co-defendant Ahchouh, who had connected

with the plaintiff via the Lyft platform. The plaintiff was injured when the vehicle in which she

was riding was involved in an accident with another vehicle. The plaintiff moved for summary

judgment on the issue of liability despite the fact that discovery was in its infancy. The court

granted the motion only to the extent of finding that the plaintiff was an innocent passenger, and

the court denied the motion on the issue of liability as to the defendants, finding issues of fact

existed at that early stage of the litigation.

54) As the above precedents make clear, under these circumstances—i.e, where

Plaintiff has moved for partial summary judgment prior to depositions or any meaningful

opportunity for exchange of discovery—as a matter of law, Plaintiff’s Motion is properly denied

as premature in all respects.

III. PLAINTIFF’S ALLEGED STATUS AS AN INNOCENT PASSENGER DOES NOT
ENTITLE HER TO RELIEF.

55) Inasmuch as Plaintiff contends that her purported status as an “innocent

passenger,” in and of itself, entitles her to partial summary judgment on liability as against

Brivarderilus and Brivard, see Yadgarov, Aff. in Supp., ¶25, she outright misstates the law.

56) Notably, beginning at least in Phillip v. D&D Carting Co., Inc., supra, the Second

Department has continually cautioned trial courts that “If the plaintiff fails to demonstrate, prima

facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised

by the defendants in opposition … summary judgment must be denied, even if the moving

plaintiff was an innocent passenger.” Phillip, 136 A.D.3d at 24 (emphasis added).

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57) Likewise, in Campbell v. Mincello, supra, the First Department rejected the

plaintiff’s argument that, as an innocent passenger in a vehicle that was rear-ended by the

defendant, she was entitled to partial summary judgment on the issue of liability. In so holding,

the court emphasized, “That plaintiff, as a passenger in the vehicle in front of defendant [] may

have been free of comparative negligence does not warrant a different outcome, as an innocent

passenger must still establish a defendant driver’s liability under traditional principles of tort

liability in order to prevail on the issue of liability against the driver.” Campbell, 184 A.D.3d at

412 (emphasis added).

58) Thus, while Plaintiff’s Affidavit passingly alleges that she was an “innocent

passenger,” Phillip and Campbell are clear that this assertion, even if true, does not entitle her to

partial summary judgment as against Defendants.

59) Nor does Plaintiff’s bare assertion, standing alone, suffice to actually render her

an innocent passenger so as to warrant the striking of Defendants’ affirmative defenses. For “[A]

passenger in a car may be liable if he or she distracted the driver while operating the vehicle

immediately prior to the accident,” Vega v. Crane, 162 A.D.3d 167, 169 (4th Dep’t 2018), and

yet Plaintiff’s Affidavit provides no such details nor any account of the inside of the

Joseph/Clarke vehicle at the time of accident. Having failed to provide such details, at the very

least, Plaintiff’s request that certain affirmative defenses be stricken should be denied as

premature in the absence of depositions. Compare Natoli v. Trader Joe’s E. Inc., 198 A.D.3d

572, 573 (1st Dep’t 2021) (“bare assertion” in plaintiff’s affidavit insufficient to demonstrate

freedom from comparative fault in absence of depositions).

60) This is especially true given the police report’s providing that the Joseph/Clarke

vehicle “stopped short” at the time of accident. See NYSCEF doc. no. 24, p. 1. Without at least a

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deposition, Defendants are unable to probe the issue of whether Joseph was caused to suddenly

stop short as a result of being distracted in any way by Plaintiff.

CONCLUSION

61) By way of the foregoing, the instant Motion is properly denied in its entirety as to

all Defendants. Should the Court disagree, at minimum, the Motion must be denied at least as to

Lyft for the reasons iterated above.

Dated: New York, NY
November 16, 2022

Respectfully yours,

LEWIS BRISBOIS BISGAARD & SMITH, LLP
Attorneys for Defendant
LYFT, INC.
77 Water Street, Suite 2100
New York, NY 10005
212.232.1300 (P)
212.232.1399 (F)

By: David L. Rosenthal
David L. Rosenthal, Esq.
Partner
646.666.7694 (Direct)
david.rosenthal@lewisbrisbois.com

Via NYSCEF to all parties.

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FILED: KINGS COUNTY CLERK 12/01/2022 12:10 PM INDEX NO. 523184/2021
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/01/2022

CERTIFICATION

I hereby certify pursuant to 22 NYCRR 202.8-b that the within document complies with

the word limits set forth therein.

Pursuant to the word-count system of the word processor used, the within document

contains 4,265 words, inclusive of footnotes and exclusive of headings and signatures.

By: David L. Rosenthal
David L. Rosenthal, Esq.

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FILED: KINGS COUNTY CLERK 12/01/2022 12:10 PM INDEX NO. 523184/2021
NYSCEF DOC. NO. 31 RECEIVED NYSCEF: 12/01/2022

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------------------------------X
AKEYA P. CLARKE,

Plaintiff,

-against-
Index. No. 523184/21
FRANCISCO BRIVARD, LYFT, INC., and
VELA BRIVARDERILUS, Mot. Seq. 001

Defendants.
-----------------------------------------------------------------X

AFFIRMATION IN OPPOSITION

LEWIS BRISBOIS BISGAARD & SMITH, LLP
Attorneys for Defendant
LYFT, INC.
77 Water Street, Suite 2100
New York, NY 10005
212.232.1300 (P)
212.232.1399 (F)

Dated: New York, NY
November 16, 2022

Signature (22 NYCRR 130-1.1a):

By: David L. Rosenthal
David L. Rosenthal, Esq.

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Case Info

Judge

Karen B Rothenberg Track Judge’s New Case

Case No.

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Document Filed Date

December 01, 2022

Case Filing Date

September 10, 2021

County

Parties

Akeya P. Clarke Plaintiff
DIBARI, CAROL SIMPAO Attorney for the Defendant
Francisco Brivard Defendant
LYFT, INC. Defendant
MCEVOY, JOHN PHILIP Attorney for the Defendant
MOSKOVITS, RONIT Z Attorney for the Defendant
NOURI, MUSTAFA KAMAL Attorney for the Defendant
PILLARELLA, DEAN LOUIS Attorney for the Defendant
ROSENTHAL, DAVID LORRIN Attorney for the Defendant
SUAREZ, GINA GRACE Attorney for the Defendant
Vela Brivarderilus Defendant
YADGAROV, MIKHAIL Attorney for the Plaintiff
ALEX YADGAROV Attorney

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Motion-Secondary: Akeya P. Clarke v. Francisco Brivard, Lyft, Inc., Vela Brivarderilus

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