Preview
FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
------------------------------------------------------------------X Index No.: 601854/2020
IRENE SHENOUDA,
Plaintiff(s), AFFIRMATION IN
-against- SUPPORT OF
NO EVIDENCE
MOTION FOR
SUMMARY JUDGMENT
xxxxx I. xxxxxxx RIVAS, UBER
TECHNOLOGIES, INC., RASIER, LLC, RASIER CA,
LLC and RASIER-NY, LLC,
Defendant(s).
------------------------------------------------------------------X
Jamie K. McAleavey, an attorney duly admitted to practice law before the Courts of the State
of New York hereby affirms the following under the penalties of perjury:
1. I am a partner with the law firm of Goldberg Segalla, LLP, attorneys for the
Defendants, UBER TECHNOLOGIES, INC. and RASIER-NY, LLC (individually and
incorrectly sued as “RASIER, LLC” and “RASIER CA, LLC”) relative to the above-captioned
matter, and as such I am fully familiar with the facts and circumstances set forth herein.
2. This Affirmation is respectfully submitted in support of the motion for an Order:
(1) pursuant to CPLR §3212, granting summary judgment on the issue of liability dismissing
all claims, including cross claims and counterclaims as against Defendants, UBER
TECHNOLOGIES, INC. and RASIER-NY, LLC (individually and incorrectly sued as
“RASIER, LLC” and “RASIER CA, LLC”); and, (2) for such other and further relief as the
Court deems just, necessary and proper.
3. This is an action in which Plaintiff, Irene Shenouda, seeks to recover for personal
injuries allegedly sustained on October 29, 2019 at approximately 4:45 p.m. when she fell
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while crossing Jerusalem Avenue under the Hicksville Train, in the County of Nassau, State
of New York following contact with a vehicle operated by Defendant, xxxxx I. xxxxxxx
RIVAS (“Rivas”), a driver utilizing the driver version of the Uber App (“Driver App”) to
operate her own independent transportation company. The moving defendants, UBER
TECHNOLOGIES, INC. and RASIER-NY, LLC (individually and incorrectly sued as
“RASIER, LLC” and “RASIER CA, LLC”) (collectively, “Uber”), are entitled to summary
judgment because Plaintiff has produced no evidence Uber is liable for Plaintiff’s injuries and
discovery is now closed.
PROCEDURAL HISTORY
4. Plaintiff commenced this action with the filing of a Summons and Complaint on or
about February 5, 2020. A copy of the Summons and Complaint is annexed hereto as Exhibit
“A”. Plaintiff’s only claim against Uber is vicarious liability. See id.
5. Issue was joined by Rivas on June 18, 2020 by filing her Answer. A copy of Rivas’s
Answer is annexed hereto as Exhibit “B”. Issue was joined by Uber with the filing of Answers
on June 18, 2020. Copies of Uber’ Answers are annexed hereto as Exhibit “C” and Exhibit
“D”.
6. Plaintiff served Bills of Particulars on June 24, 2020. Copies of the Bills of
Particulars are annexed hereto collectively as Exhibit “E”.
7. On December 17, 2020, the first deposition of Plaintiff was held. A copy of that
transcript is annexed hereto as Exhibit “F”1. On February 16, 2022, the second deposition of
Plaintiff was held. A copy of that transcript is annexed hereto as Exhibit “G”. The deposition
1 Plaintiff’s transcript was exchanged pursuant to CPLR 3116 on January 10, 2021. See Exhibit “F”. Plaintiff did
not return a signed copy of the transcript within sixty days.
Accordingly, it may be used as fully as though signed.
See CPLR 3116.
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of Rivas was held on January 25, 2021. A copy of that transcript is annexed hereto as Exhibit
“H”.2 The deposition of Rachel Perl, a witness on behalf of Uber, was held. A copy of that
transcript is annexed hereto as Exhibit “I”3.
8. A Certification Order was issued by the Court on September 20, 2022. A copy
of the entered order is annexed hereto as Exhibit “J”. Thereafter on September 28, 2022,
Plaintiff filed her Note of Issue. A copy of the Note of Issue is annexed hereto as Exhibit “K”.
Accordingly, this motion is timely.
STANDARD
9. It is well settled that summary judgment may be awarded when there are no issues
of material fact to be resolved. See McKinney's Civil Practice Law & Rules, §3212(e) (2015).
Although a motion for summary judgment may not be granted when there is doubt as to the
existence of a triable issue of fact, the motion may not be defeated merely by surmise,
conjecture, suspicion or mere allegation. See Shore v Time-Life Records, 38 N.Y.2d 201, 379
N.Y.S. 2d 390, 341 N.E. 2d 817 (1975). Neither bold, conclusory allegations, nor speculative
conjecture, are sufficient to defeat a motion for summary judgment. See S.J. Capital &
Associates, Inc., v. Globe Manufacturing Corp., 34 2d 338, 357 N.Y.S. 2d 478, 313 N.E. 2d
776 (1974); See also Irving v. Giannotto, 151 A.D. 2d 655, 542 N.Y.S.2d 716 (2nd Dept.
1989).
10. Plaintiff maintains the obligation to submit evidence legally sufficient to support
each of the essential elements of a cause of action, and the Court must first make a peripheral
2 Rivas’s transcript was exchanged pursuant to CPLR 3116 on February 16, 2021. See Exhibit “H”. Rivas did not
return a signed copy of the transcript within sixty days.
Accordingly, it may be used as fully as though signed. See
CPLR 3116.
3 The parties have agreed to a Stipulated Protective Order. Among the provisions of the Stipulated Protective Order,
the parties agreed that the deposition of the corporate representative of Uber shall be designated as Confidential and
subject to the provisions of the Stipulated Protective Order.Accordingly, the deposition transcript of Rachel Perl,
which all parties are in possession of, will be made available to the court for in camera inspection.
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determination as to whether sufficient evidence has been submitted on each element to raise a
genuine issue of material fact to warrant a jury's consideration. Aikens v. Glen Falls City School
District, 53 N.Y.2d 345, 441 N.Y.S.2d 644, 424 N.E. 2d 531 (1981); Febesh v. Elcejay Inn
Corp., 157 A.D.2d 102, 55 N.Y.S.2d 46 (1st Dept. 1990).
11. Here, Plaintiff attempts to hold Uber vicariously liable for the acts of Rivas, an
independent transportation provider, but Plaintiff has produced no evidence to meet her
burden of proof against Uber. Where there is no conflict in the evidence, as in the instant
matter, the question of whether a party is an independent contractor may be properly
determined by the Court as a matter of law and Uber therefore, as a matter of law, cannot be
liable. See Exhibit “A” at paragraphs 58-61; see also Exhibits B, C, and D.
STATEMENT OF UNDISPUTED FACTS
12. Plaintiff, IRENE SHENOUDA, alleges that on October 29, 2019 at approximately
4:45 p.m. she sustained personal injuries as a result of an accident as she was crossing
Jerusalem Avenue near its intersection with Nelson Avenue in Hicksville, New York. See
Exhibit “E”. She testified that as she was crossing the street, she came into contact with a car
driven by Rivas. See Exhibit “F”, page 135, lines 13-25.
13. Rivas testified on October 29, 2012 she was logged into the Driver App driving her
2018 Toyota Rav 4 that she owned. See Exhibit “H”, page 19, lines 10-13; page 11, lines 15-
16. She accepted a ride request and picked up her rider near the Hicksville Train Station in a
shared parking lot around 4:30-4:45 p.m.. See Exhibit “H”, page 20, lines 8-15 and page 25,
lines 4-12, 13-19. As Rivas turned from the parking lot onto Jerusalem Avenue, she saw
something in front of her and stepped on the brake immediately. See Exhibit “H”, page 38-
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39. Rivas did not know if she came into contact with anything but she came to a stop and got
out of the car and saw a person on the ground in front of her car. See Exhibit “H”, page 44-
45, lines 11-2.
14. Rachel Perl, head of Uber’s North US Regulatory Operations and Strategy, testified
on behalf of Uber. See Exhibit “I”, page 10-11, lines 19-3. Rasier-LLC and Rasier-NY, LLC
are transportation network companies and subsidiaries of Uber Technologies, Inc.; Rasier-NY,
LLC was the transportation network company for Long Island, New York in October 2019.
See Deposition of Rachel Perl, Exhibit “I”, page 14, lines 4-10 and page 21-22, lines 24-3 and
12-15.
15. As Ms. Perl testified, there is no application process for a driver to gain access to
the Driver App. There is a sign-up process that collects information required by the
Transportation Network Company Regulations. See Exhibit “I”, page 32, lines 13-23 and page
33-34, lines 25-6. Rasier-NY, LLC is regulated as a New York Transportation Network
Company. See Exhibit “I”, page 23, lines 22-24 and page 25, lines 8-11.
16. Drivers, like Rivas, access the Uber Rides platform independently through a
licensing agreement with the local transportation network company and are subject to the local
transportation network company regulations. See Exhibit “I”, page 20-21, lines 9-12.
17. Accordingly when Rivas signed up to use the Driver App in 2019, she entered into
a Technology Services Agreement with Rasier-NY, LLC. See Exhibit “I”, page 30, lines 7-
14, page 22, lines 4-11 and page 31. Rachel Perl identified the Technology Services
Agreement (“TSA”) annexed hereto as Exhibit “L”, as the agreement that Rivas entered into
with Rasier-NY, LLC. See Exhibit “I”, page 31-32, lines 17-18.
See Exhibit “L.”
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18. The TSA, in relevant part, provides:
Company [Rasier-NY], a subsidiary of Uber Technologies, Inc. (“Uber”), provides lead
generation to independent providers of rideshare or peer-to-peer (collectively, “P2P”)
passenger transportation services . . . You acknowledge and agree that Company is a
technology services provider that does not provide transportation services. Id.
(emphasis in the original).
19. The TSA is explicit it was not an employment agreement and that no employment
relationship exists between Uber and Rivas. The TSA states in relevant part:
See TSA, Section 13.1, Exhibit “L.”
20. The TSA further confirms the following:
· Defendants did not have any control over Rivas by her use of the Driver App.
· Rivas was responsible for operating and maintaining her own vehicle.
· Rivas was free to accept or decline any requests to provide transportation services
via the Driver App at any time.
· Rivas was free to use other applications while on app with Uber.
· Rivas was free to engage in other business or employment activities.
21. The relevant section of the Agreement provides:
See TSA, Section 2.4, Exhibit “L.”
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22. These were not only the terms of Rivas’ and Uber’s agreement but also the
undisputed practice in reality as well:
a. It is undisputed Rivas —not Uber—owned the vehicle involved. See Exhibit
“H”, page 11, lines 15-16.
b. It is also undisputed Rivas was responsible for maintaining her Toyota
including getting the oil checked or the vehicle fixed if there was damage. See
Exhibit “H”, page 75, lines 2-10; 11-13. Rivas, not Uber, was responsible for
having the vehicle inspected. Uber had no involvement with Rivas’ vehicle.
See Exhibit “H”, page 75, lines 17-25.
c. It is undisputed that when utilizing the Driver App, Rivas was not required to
wear a uniform. See Exhibit “H”, page 76, lines 2-4. She did not report to
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anyone or have a supervisor at Uber. She was not required to attend any
meetings or conferences. See Exhibit “H”, page 76, lines 8-20.
d. It is undisputed Rivas did not have a set schedule and could be active on the
Driver App whenever she wanted, if she wanted to at all. Uber did not require
her to log into the App for any set hours or amount of time. She made her own
decisions as to when she wanted to log into the App to potentially accept trip
requests, if at all. See Exhibit “H”, page 77, lines 4-13. Rivas was free to
accept or reject any trip lead that came through the App. She was also able to
cancel a request that she initially accepted. See Exhibit “H”, page 77, lines 14-
24.
e. It is undisputed Rivas was not required to accept a minimum amount of trips in
2019. Rivas was in complete control of her own timing and how many trips she
chose to accept or not accept. See Exhibit “I”, page 60, lines 12-22.
f. It is undisputed Drivers were free to use their preferred navigation system and
choose their own route when providing a ride. They were not required to use
any navigation system.
g. It is undisputed Rivas was free to use any navigation application when
providing rides on the Driver App, including external applications such as
Google Maps or Waze. While Uber offered a navigation feature, Rivas was not
required to use the navigation on the Uber app. See Exhibit “H”, page 78, lines
9-17. See Exhibit “I”, page 74, lines 4-13.
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h. It is undisputed Rivas was not required to follow the route provided by the
Driver App when she was providing an accepted ride. See Exhibit “H”, page
78-79, lines 19-8.
i. It is undisputed Rivas was free to use other apps to pursue leads at the same
time, including the Lyft App. See Exhibit “H”, page 79-80, lines 9-9.
j. It is undisputed Rivas received a 1099 form for tax purposes for the income she
received while utilizing the Driver App See Exhibit “H”, page 81, lines 6-7.
Taxes were not withheld from the payments she received from rides provided
through the Driver App. See Exhibit “H”, page 82, lines 4-10. Rivas did not
receive any type of benefits like health insurance from Uber. See Exhibit “H”,
page 81, lines 12-19.
k. It is undisputed Drivers determine the rate of pay they receive through their use
of the Driver App by deciding if they will accept or decline a ride request and
then deciding themselves what route they take, which affects the time and
distance calculations for the rates set by the marketplace. See Exhibit “I”, page
53-54, lines 18-22.
l. It is undisputed Drivers are able to negotiate a fare with Uber. See Exhibit “I”,
page 55-56, lines 23-8.
m. It is undisputed Rivas was paid directly from her riders. Uber acted as a limited
payment agent to facilitate the payment from the rider to the driver via the App.
See Exhibit “I”, page 57-58, lines 15-7.
ARGUMENT
I. Uber is Entitled to Summary Judgment as the Record is Devoid of Any
Evidence that Uber Can be Vicariously Liable
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Where there is no conflict in the evidence, as in the instant matter, the question of whether a
party is an independent contractor may be properly determined by the Court as a matter of
law
23. There is no evidence that any liability can be imputed to Uber. There is no
evidence to suggest Uber controlled or otherwise influenced the methods or manner in which
Rivas conducted her independent transportation business.
24. Uber is a technology company that uses its proprietary technology to develop and
maintain digital multi-sided platforms. On one side of the marketplace, businesses and
individuals utilize Uber’s platforms in order to connect with customers and obtain payment
processing services. On the other side of the marketplace are other users who can connect and
obtain various services from businesses and individuals including drivers, hotels, airlines,
restaurants, healthcare providers, and retailers. The Uber App can also be used to find
entertainment and travel resources including tours, rental cars, and dining reservations. Some
specific examples of platforms that Uber has developed include the Rides platform
(connecting riders with independent drivers), the Eats platform (connecting restaurants,
grocery stores, delivery drivers, and eaters); the Freight platform (connecting shippers with
motor carriers); the Uber Travel platform (connecting travel providers, like hotels and airlines
with users of the Uber app) and Uber Explore (marketplace to browse and book experiences,
including restaurant reservations and concert tickets).
25. In short, drivers utilize the Driver App to connect with their potential rider
customers. Drivers are able to launch their independent transportation business through the
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Driver App and obtain lead generation services after executing a Technology Services
Agreement. In this agreement, both parties explicitly agree the driver shall remain an
independent contractor. The parties also explicitly agree Uber is not responsible or liable for
the actions of drivers such as Rivas. To that end, the Technology Services Agreement
provides:
26. The Plaintiff offers no evidence that Rivas was anything other than an
independent contractor and discovery is now closed. Further, there is no evidence Uber
exercised the requisite level of control over Rivas’ operation as a driver. For instance, Uber
did not own the vehicle driven by Rivas on the date of the accident. Rivas owned the vehicle.
Uber did not direct Rivas to take certain routes, operate in certain territories, work certain
hours, accept a certain number of rides, or provide any supervisory role over her day-to-day
activities. Rivas could have also utilized another rideshare application such as Lyft at any
time. Rivas was not required to dress in any certain uniform. Uber’s role was limited solely
to the maintenance of the Driver App that connects a User requesting trip requests with an
independent third-party transportation provider who is available to accept trip requests at their
choosing. Because Uber did not exercise the requisite level of control over Rivas’ day-to-day
operation as a driver, Uber cannot be vicariously liable for Rivas’ conduct in this case.
27. There was never an employment or agency relationship between Rivas and Uber,
and neither intended for any such relationship to exist between them. “An employee is one
who works for another subject to substantial control, not only over the results produced but
also over the means used to produce the results.” Matter of O-Brien v. Spitzer, 7 NY3d 239,
242 (2006). “A person who works for another subject to less extensive control is an
independent contractor.” Id. “The critical inquiry in determining whether an employment
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relationship exists ‘pertains to the degree of control exercised by the purported employer over
the results produced or the means used to achieve the results.’” Castro-Quesada v. Tuapanta
et al, 148 A.D.3d 978 (2d Dept. 2017) citing Matter of O-Brien v. Spitzer, 7 NY3d 239, 242
(2006).
28. It is well established that an employer is not liable for the negligent or tortious acts
of an individual it hires as an independent contractor. See, e.g., Phillips v. Uber Techs., Inc.,
2017 U.S. Dist. LEXIS 94979, 2017 WL 2782036, (S.D.N.Y. June 14, 2017) (explaining that
"[g]enerally, an employer who hires an independent contractor, as distinguished from an
employee, is not liable for that individual's negligent or tortious acts"); Von-Ary v. Cain, LLC,
2009 U.S. Dist. LEXIS 54136, 2009 WL 1835934 (S.D.N.Y. June 26, 2009) (same); Cohen v.
Deepdale Gardens Corp., 63 Misc. 3d 1226[A], 115 N.Y.S.3d 613 (Sup. Ct. 2019) (same).
When determining a worker’s status for the purpose of tort liability, factors relevant to
assessing control include whether the worker: (1) worked at his own convenience, (2) was free
to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll
and (5) was on a fixed schedule. Barak v. Chen, 87 A.D.3d 955, 957 (2d Dept. 2011).
29. New York Courts have declined to find an employer-employee relationship when
there is undisputed evidence that a driver: (1) owned his vehicle, (2) was responsible for the
maintenance, (3) paid the insurance, (4) had “unfettered discretion to determine the days and
times they worked, with no minimum or maximum number of hours,” (5) did not have a
uniform or dress code, (6) was free to accept or reject any dispatch, (7) could take breaks and
shifts when they wanted, (8) could work for other livery base stations, (9) kept a fixed
percentage of all fares and 100% of all tips, and (10) was issued a 1099 form and not a W2.
See Chaoni v. Ali, 105 A.D.3d 424 (1st Dept. 2013).
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30. In Zeng Ji Liu v. Bathily, the court declined to find an employment relationship
when the medallion lease agreement expressly disclaimed the existence of an employment
relationship, the driver was not guaranteed compensation, worked without a fixed schedule,
and was free from the cab company’s direction and control. Zeng Ji Liu v. Bathily, 145 A.D.3d
558 (1st Dept. 2016). Evidence that the company conducted a background check of the driver,
performed weekly inspections of the vehicle, accepted credit card payments on the driver’s
behalf, and had a handbook containing a general dress code were indicative of mere incidental
or “general supervisory control.” Chaoni, supra; Zeng Ji Liu, supra; Alves v. Petik, 136 A.D.3d
426 (1st Dept. 2016).
31. On February 19, 2021, Judge John H. Rouse of Supreme Court, Suffolk County
ruled that a driver utilizing the Driver App was an independent contractor of Uber as opposed
to an employee. See Cortese v. Aman, Index No. 605477/2019, Decision & Order dated Feb.
19, 2021. A copy of Judge Rouse’s decision is annexed hereto as Exhibit “M”. Judge Rouse
determined Uber had made a prima facie case the driver was an independent contractor. See
id. Plaintiff failed to raise a triable material issue of fact. See id. Accordingly, Judge Rouse
granted Uber’s motion for summary judgment and dismissed plaintiff’s vicarious liability
claim and direct liability claims of negligent hiring/retention/supervision against Uber. See id.
32. An independent contractor is an entity that retains the right to control its own work,
and control the means and methods of all such work. Metzger v. Yorktown Jewish Center, 283
A.D.2d 466, 724 N.Y.S.2d 644 (2d Dept. 2001); Marino v. City of New York, 259 A.D.2d 469,
686 N.Y.S. 2d 77 (2d Dept. 1999). Whether one is an independent contractor or an employee
depends on the presence or absence of various indicia, the most important of which is who has
control over the manner in which the work was to be performed. Matter of Morton, 284
N.Y.167, 20 N.E.2d 369 (1940); Szabados v. Quinn, 156 A.D.2d 186, 548 N.Y.S.2d 542 (1st
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Dept. 1989); See Anderson v. Oliver VS Garage & Service Station, Inc., 186 A.D.2d 608, 588
N.Y.S. 2d 604 (2nd Dept. 1992); DeFeo v. Frank Lambie, Inc., 146 A.D.2d 521, 536 N.Y.S.2d
459 (lst Dept. 1989) Berger v. Dykstra, supra, See Willis v. New York, 266 A.D.2d 208, 697
N.Y.S.2d 311 (2nd Dept. 1999).
33. Where there is no conflict in the evidence, as in the instant matter, the question of
whether a party is an independent contractor may be properly determined by the Court as a
matter of law. Shapiro v. Robinson, 102 A.D.2d 822, 476 N.Y.S.2d 596 (2nd Dept. 1984), affd
63 N.Y.2d 96, 483 N.Y.S.2d 203, 472 N.E.2d 1031 (1984); Berger v. Dykstra, 203 A.D.2d
754, 610 N.Y.S.2d 401 (3rd Dept. 1994); Crage v. Kissing Bridge Ski Area, 186 A.D.2d 987,
588 N.Y.S. 2d 449, (4th Dept. 1992); Conroy v. Bilacqua, 179 A.D.2d 596, 549 N.Y.S.2d 655
(1st Dept. 1992); Sykes v. Chevron Companies, 173 A.D.2d 810, 571 N.Y.S.2d 43 (2nd Dept.
1991); Swarts v. Country Log Homes, Inc., 135 A.D.2d 807, 522 N.Y.S. 2d 911 (2nd Dept.
1987); See Begley v. New York, 111 A.D.3d 5, 972 N.Y.S.2d 48 (2nd Dept. 2013).
34. In Sanabria v. Borges, 117 A.D.3d 1024, 986 N.Y.S.2d 553 (2nd Dept. 2017), the
plaintiff was seeking damages for injuries sustained when he was struck by the defendant
driver’s vehicle. The Second Department held that the defendant driver was an independent
contractor and thus the company utilizing his services could not be held vicariously liable. The
court held that control of the means and method of the work was the critical factor in
determining whether one is an independent contractor or employee. In determining that the
driver defendant was an independent contractor, the court noted that he was free to engage in
other employment, did not receive fringe benefits, and was not on the alleged employer’s
payroll. Taxes were not withheld from the paycheck and the driver received a 1099 form. He
was in full control of his schedule and worked at his convenience. He did not have a fixed
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schedule like the employees. He also did not wear a uniform. Id. Further, the operator
agreement signed by the driver stated that he was an independent contractor. The Court noted
that while the existence of a contract designating a person as an independent contractor is not
dispositive, it is a factor to be considered. Id. See also Hernandez v Chefs Diet Delivery, LLC,
81 A.D.3d at 599 (2nd Dept. 2011); Araneo v Town Bd. for Town of Clarkstown, 55 AD3d at
518 (2nd Dept. 2008); Gfeller v Russo, 45 AD3d 1301, 846 NYS2d 501 (4th Dept. 2007);
Matter of Bedin, 257 AD2d 809, 684 NYS2d 653 (3rd Dept.1999).
35. Like Sanabria, in the present case the undisputed evidence shows, Uber did not
control the means and methods of Rivas’ work and did not direct or supervise Rivas.
Furthermore, the factors cited by the Second Department in Sanabria that determined the
driver to be an independent contractor are identical to this case including the agreement
specifying the relationship between the parties. Like the defendant company utilizing the
driver’s services in Sanabria, Plaintiff has produced no evidence to prove Uber had any control
over Rivas. To the contrary, the evidence proves she provided her own vehicle, was free to
engage in other employment, taxes were not withheld from her paycheck, and she received a
1099 form. Rivas was in full control of her schedule, worked at her convenience, and did not
wear a uniform. Taking all of these factors into consideration, there can be no vicarious liability
attributed to Uber in this case.
36. There is absolutely no proof that an agency or employee-employer relationship
existed between Rivas and Uber. As a result, any argument that the alleged negligent acts of
Rivas are imputed to Uber must fail.
CONCLUSION
37. Accordingly, the evidence submitted herein affirmatively and conclusively
demonstrates Plaintiff cannot establish a prima facie case of liability against Uber.
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Accordingly, Uber’s Motion for Summary Judgment should be granted as a matter of law, and
the Complaint and all cross claims must be dismissed with prejudice against Uber.
WHEREFORE, it is respectfully requested that the Court issue an Order (1) pursuant to CPLR
3212, granting summary judgment on the issue of liability dismissing all claims as against
Defendants, UBER TECHNOLOGIES, INC. and RASIER-NY, LLC (individually and incorrectly
sued as “RASIER, LLC” and “RASIER CA, LLC”) and, (2) for such other and further relief as the
Court deems just, necessary and proper.
Dated: Garden City, New York
November 28, 2022
Jamie K. McAleavey
Jamie K. McAleavey, Esq.
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NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022
CERTIFICATION OF WORD COUNT
Pursuant to section 22 NYCRR § 202.8-b of the Uniform Civil Rules, I hereby certify that
the number of words in this document, excluding the caption, table of contents, table of authorities,
and signature block, is 4,328 words, and the document complies with the word count limit of 7,000.
I have relied on the word count of the word-processing system used to prepare the document.
Dated: Garden City, New York
November 28, 2022
Yours, etc.,
GOLDBERG SEGALLA LLP
By: Jamie K. McAleavey
Jamie K. McAleavey, Esq.
Attorneys for Defendants
UBER TECHNOLOGIES, INC. and RASIER-NY,
LLC incorrectly sued as RASIER-NY, LLC,
RASIER, LLC and RASIER CA, LLC
Mailing Address:
P.O. Box 780, Buffalo, New York 14201
200 Garden City Plaza, Suite 520
Garden City, New York 11530
(516) 281-9800
GS File No.: 15899.0120
17 of 17
Preview
FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ------------------------------------------------------------------X Index No.: 601854/2020 IRENE SHENOUDA, Plaintiff(s), AFFIRMATION IN -against- SUPPORT OF NO EVIDENCE MOTION FOR SUMMARY JUDGMENT xxxxx I. xxxxxxx RIVAS, UBER TECHNOLOGIES, INC., RASIER, LLC, RASIER CA, LLC and RASIER-NY, LLC, Defendant(s). ------------------------------------------------------------------X Jamie K. McAleavey, an attorney duly admitted to practice law before the Courts of the State of New York hereby affirms the following under the penalties of perjury: 1. I am a partner with the law firm of Goldberg Segalla, LLP, attorneys for the Defendants, UBER TECHNOLOGIES, INC. and RASIER-NY, LLC (individually and incorrectly sued as “RASIER, LLC” and “RASIER CA, LLC”) relative to the above-captioned matter, and as such I am fully familiar with the facts and circumstances set forth herein. 2. This Affirmation is respectfully submitted in support of the motion for an Order: (1) pursuant to CPLR §3212, granting summary judgment on the issue of liability dismissing all claims, including cross claims and counterclaims as against Defendants, UBER TECHNOLOGIES, INC. and RASIER-NY, LLC (individually and incorrectly sued as “RASIER, LLC” and “RASIER CA, LLC”); and, (2) for such other and further relief as the Court deems just, necessary and proper. 3. This is an action in which Plaintiff, Irene Shenouda, seeks to recover for personal injuries allegedly sustained on October 29, 2019 at approximately 4:45 p.m. when she fell 1 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 while crossing Jerusalem Avenue under the Hicksville Train, in the County of Nassau, State of New York following contact with a vehicle operated by Defendant, xxxxx I. xxxxxxx RIVAS (“Rivas”), a driver utilizing the driver version of the Uber App (“Driver App”) to operate her own independent transportation company. The moving defendants, UBER TECHNOLOGIES, INC. and RASIER-NY, LLC (individually and incorrectly sued as “RASIER, LLC” and “RASIER CA, LLC”) (collectively, “Uber”), are entitled to summary judgment because Plaintiff has produced no evidence Uber is liable for Plaintiff’s injuries and discovery is now closed. PROCEDURAL HISTORY 4. Plaintiff commenced this action with the filing of a Summons and Complaint on or about February 5, 2020. A copy of the Summons and Complaint is annexed hereto as Exhibit “A”. Plaintiff’s only claim against Uber is vicarious liability. See id. 5. Issue was joined by Rivas on June 18, 2020 by filing her Answer. A copy of Rivas’s Answer is annexed hereto as Exhibit “B”. Issue was joined by Uber with the filing of Answers on June 18, 2020. Copies of Uber’ Answers are annexed hereto as Exhibit “C” and Exhibit “D”. 6. Plaintiff served Bills of Particulars on June 24, 2020. Copies of the Bills of Particulars are annexed hereto collectively as Exhibit “E”. 7. On December 17, 2020, the first deposition of Plaintiff was held. A copy of that transcript is annexed hereto as Exhibit “F”1. On February 16, 2022, the second deposition of Plaintiff was held. A copy of that transcript is annexed hereto as Exhibit “G”. The deposition 1 Plaintiff’s transcript was exchanged pursuant to CPLR 3116 on January 10, 2021. See Exhibit “F”. Plaintiff did not return a signed copy of the transcript within sixty days. Accordingly, it may be used as fully as though signed. See CPLR 3116. 2 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 of Rivas was held on January 25, 2021. A copy of that transcript is annexed hereto as Exhibit “H”.2 The deposition of Rachel Perl, a witness on behalf of Uber, was held. A copy of that transcript is annexed hereto as Exhibit “I”3. 8. A Certification Order was issued by the Court on September 20, 2022. A copy of the entered order is annexed hereto as Exhibit “J”. Thereafter on September 28, 2022, Plaintiff filed her Note of Issue. A copy of the Note of Issue is annexed hereto as Exhibit “K”. Accordingly, this motion is timely. STANDARD 9. It is well settled that summary judgment may be awarded when there are no issues of material fact to be resolved. See McKinney's Civil Practice Law & Rules, §3212(e) (2015). Although a motion for summary judgment may not be granted when there is doubt as to the existence of a triable issue of fact, the motion may not be defeated merely by surmise, conjecture, suspicion or mere allegation. See Shore v Time-Life Records, 38 N.Y.2d 201, 379 N.Y.S. 2d 390, 341 N.E. 2d 817 (1975). Neither bold, conclusory allegations, nor speculative conjecture, are sufficient to defeat a motion for summary judgment. See S.J. Capital & Associates, Inc., v. Globe Manufacturing Corp., 34 2d 338, 357 N.Y.S. 2d 478, 313 N.E. 2d 776 (1974); See also Irving v. Giannotto, 151 A.D. 2d 655, 542 N.Y.S.2d 716 (2nd Dept. 1989). 10. Plaintiff maintains the obligation to submit evidence legally sufficient to support each of the essential elements of a cause of action, and the Court must first make a peripheral 2 Rivas’s transcript was exchanged pursuant to CPLR 3116 on February 16, 2021. See Exhibit “H”. Rivas did not return a signed copy of the transcript within sixty days. Accordingly, it may be used as fully as though signed. See CPLR 3116. 3 The parties have agreed to a Stipulated Protective Order. Among the provisions of the Stipulated Protective Order, the parties agreed that the deposition of the corporate representative of Uber shall be designated as Confidential and subject to the provisions of the Stipulated Protective Order.Accordingly, the deposition transcript of Rachel Perl, which all parties are in possession of, will be made available to the court for in camera inspection. 3 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 determination as to whether sufficient evidence has been submitted on each element to raise a genuine issue of material fact to warrant a jury's consideration. Aikens v. Glen Falls City School District, 53 N.Y.2d 345, 441 N.Y.S.2d 644, 424 N.E. 2d 531 (1981); Febesh v. Elcejay Inn Corp., 157 A.D.2d 102, 55 N.Y.S.2d 46 (1st Dept. 1990). 11. Here, Plaintiff attempts to hold Uber vicariously liable for the acts of Rivas, an independent transportation provider, but Plaintiff has produced no evidence to meet her burden of proof against Uber. Where there is no conflict in the evidence, as in the instant matter, the question of whether a party is an independent contractor may be properly determined by the Court as a matter of law and Uber therefore, as a matter of law, cannot be liable. See Exhibit “A” at paragraphs 58-61; see also Exhibits B, C, and D. STATEMENT OF UNDISPUTED FACTS 12. Plaintiff, IRENE SHENOUDA, alleges that on October 29, 2019 at approximately 4:45 p.m. she sustained personal injuries as a result of an accident as she was crossing Jerusalem Avenue near its intersection with Nelson Avenue in Hicksville, New York. See Exhibit “E”. She testified that as she was crossing the street, she came into contact with a car driven by Rivas. See Exhibit “F”, page 135, lines 13-25. 13. Rivas testified on October 29, 2012 she was logged into the Driver App driving her 2018 Toyota Rav 4 that she owned. See Exhibit “H”, page 19, lines 10-13; page 11, lines 15- 16. She accepted a ride request and picked up her rider near the Hicksville Train Station in a shared parking lot around 4:30-4:45 p.m.. See Exhibit “H”, page 20, lines 8-15 and page 25, lines 4-12, 13-19. As Rivas turned from the parking lot onto Jerusalem Avenue, she saw something in front of her and stepped on the brake immediately. See Exhibit “H”, page 38- 4 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 39. Rivas did not know if she came into contact with anything but she came to a stop and got out of the car and saw a person on the ground in front of her car. See Exhibit “H”, page 44- 45, lines 11-2. 14. Rachel Perl, head of Uber’s North US Regulatory Operations and Strategy, testified on behalf of Uber. See Exhibit “I”, page 10-11, lines 19-3. Rasier-LLC and Rasier-NY, LLC are transportation network companies and subsidiaries of Uber Technologies, Inc.; Rasier-NY, LLC was the transportation network company for Long Island, New York in October 2019. See Deposition of Rachel Perl, Exhibit “I”, page 14, lines 4-10 and page 21-22, lines 24-3 and 12-15. 15. As Ms. Perl testified, there is no application process for a driver to gain access to the Driver App. There is a sign-up process that collects information required by the Transportation Network Company Regulations. See Exhibit “I”, page 32, lines 13-23 and page 33-34, lines 25-6. Rasier-NY, LLC is regulated as a New York Transportation Network Company. See Exhibit “I”, page 23, lines 22-24 and page 25, lines 8-11. 16. Drivers, like Rivas, access the Uber Rides platform independently through a licensing agreement with the local transportation network company and are subject to the local transportation network company regulations. See Exhibit “I”, page 20-21, lines 9-12. 17. Accordingly when Rivas signed up to use the Driver App in 2019, she entered into a Technology Services Agreement with Rasier-NY, LLC. See Exhibit “I”, page 30, lines 7- 14, page 22, lines 4-11 and page 31. Rachel Perl identified the Technology Services Agreement (“TSA”) annexed hereto as Exhibit “L”, as the agreement that Rivas entered into with Rasier-NY, LLC. See Exhibit “I”, page 31-32, lines 17-18. See Exhibit “L.” 5 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 18. The TSA, in relevant part, provides: Company [Rasier-NY], a subsidiary of Uber Technologies, Inc. (“Uber”), provides lead generation to independent providers of rideshare or peer-to-peer (collectively, “P2P”) passenger transportation services . . . You acknowledge and agree that Company is a technology services provider that does not provide transportation services. Id. (emphasis in the original). 19. The TSA is explicit it was not an employment agreement and that no employment relationship exists between Uber and Rivas. The TSA states in relevant part: See TSA, Section 13.1, Exhibit “L.” 20. The TSA further confirms the following: · Defendants did not have any control over Rivas by her use of the Driver App. · Rivas was responsible for operating and maintaining her own vehicle. · Rivas was free to accept or decline any requests to provide transportation services via the Driver App at any time. · Rivas was free to use other applications while on app with Uber. · Rivas was free to engage in other business or employment activities. 21. The relevant section of the Agreement provides: See TSA, Section 2.4, Exhibit “L.” 6 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 22. These were not only the terms of Rivas’ and Uber’s agreement but also the undisputed practice in reality as well: a. It is undisputed Rivas —not Uber—owned the vehicle involved. See Exhibit “H”, page 11, lines 15-16. b. It is also undisputed Rivas was responsible for maintaining her Toyota including getting the oil checked or the vehicle fixed if there was damage. See Exhibit “H”, page 75, lines 2-10; 11-13. Rivas, not Uber, was responsible for having the vehicle inspected. Uber had no involvement with Rivas’ vehicle. See Exhibit “H”, page 75, lines 17-25. c. It is undisputed that when utilizing the Driver App, Rivas was not required to wear a uniform. See Exhibit “H”, page 76, lines 2-4. She did not report to 7 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 anyone or have a supervisor at Uber. She was not required to attend any meetings or conferences. See Exhibit “H”, page 76, lines 8-20. d. It is undisputed Rivas did not have a set schedule and could be active on the Driver App whenever she wanted, if she wanted to at all. Uber did not require her to log into the App for any set hours or amount of time. She made her own decisions as to when she wanted to log into the App to potentially accept trip requests, if at all. See Exhibit “H”, page 77, lines 4-13. Rivas was free to accept or reject any trip lead that came through the App. She was also able to cancel a request that she initially accepted. See Exhibit “H”, page 77, lines 14- 24. e. It is undisputed Rivas was not required to accept a minimum amount of trips in 2019. Rivas was in complete control of her own timing and how many trips she chose to accept or not accept. See Exhibit “I”, page 60, lines 12-22. f. It is undisputed Drivers were free to use their preferred navigation system and choose their own route when providing a ride. They were not required to use any navigation system. g. It is undisputed Rivas was free to use any navigation application when providing rides on the Driver App, including external applications such as Google Maps or Waze. While Uber offered a navigation feature, Rivas was not required to use the navigation on the Uber app. See Exhibit “H”, page 78, lines 9-17. See Exhibit “I”, page 74, lines 4-13. 8 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 h. It is undisputed Rivas was not required to follow the route provided by the Driver App when she was providing an accepted ride. See Exhibit “H”, page 78-79, lines 19-8. i. It is undisputed Rivas was free to use other apps to pursue leads at the same time, including the Lyft App. See Exhibit “H”, page 79-80, lines 9-9. j. It is undisputed Rivas received a 1099 form for tax purposes for the income she received while utilizing the Driver App See Exhibit “H”, page 81, lines 6-7. Taxes were not withheld from the payments she received from rides provided through the Driver App. See Exhibit “H”, page 82, lines 4-10. Rivas did not receive any type of benefits like health insurance from Uber. See Exhibit “H”, page 81, lines 12-19. k. It is undisputed Drivers determine the rate of pay they receive through their use of the Driver App by deciding if they will accept or decline a ride request and then deciding themselves what route they take, which affects the time and distance calculations for the rates set by the marketplace. See Exhibit “I”, page 53-54, lines 18-22. l. It is undisputed Drivers are able to negotiate a fare with Uber. See Exhibit “I”, page 55-56, lines 23-8. m. It is undisputed Rivas was paid directly from her riders. Uber acted as a limited payment agent to facilitate the payment from the rider to the driver via the App. See Exhibit “I”, page 57-58, lines 15-7. ARGUMENT I. Uber is Entitled to Summary Judgment as the Record is Devoid of Any Evidence that Uber Can be Vicariously Liable 9 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 Where there is no conflict in the evidence, as in the instant matter, the question of whether a party is an independent contractor may be properly determined by the Court as a matter of law 23. There is no evidence that any liability can be imputed to Uber. There is no evidence to suggest Uber controlled or otherwise influenced the methods or manner in which Rivas conducted her independent transportation business. 24. Uber is a technology company that uses its proprietary technology to develop and maintain digital multi-sided platforms. On one side of the marketplace, businesses and individuals utilize Uber’s platforms in order to connect with customers and obtain payment processing services. On the other side of the marketplace are other users who can connect and obtain various services from businesses and individuals including drivers, hotels, airlines, restaurants, healthcare providers, and retailers. The Uber App can also be used to find entertainment and travel resources including tours, rental cars, and dining reservations. Some specific examples of platforms that Uber has developed include the Rides platform (connecting riders with independent drivers), the Eats platform (connecting restaurants, grocery stores, delivery drivers, and eaters); the Freight platform (connecting shippers with motor carriers); the Uber Travel platform (connecting travel providers, like hotels and airlines with users of the Uber app) and Uber Explore (marketplace to browse and book experiences, including restaurant reservations and concert tickets). 25. In short, drivers utilize the Driver App to connect with their potential rider customers. Drivers are able to launch their independent transportation business through the 10 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 Driver App and obtain lead generation services after executing a Technology Services Agreement. In this agreement, both parties explicitly agree the driver shall remain an independent contractor. The parties also explicitly agree Uber is not responsible or liable for the actions of drivers such as Rivas. To that end, the Technology Services Agreement provides: 26. The Plaintiff offers no evidence that Rivas was anything other than an independent contractor and discovery is now closed. Further, there is no evidence Uber exercised the requisite level of control over Rivas’ operation as a driver. For instance, Uber did not own the vehicle driven by Rivas on the date of the accident. Rivas owned the vehicle. Uber did not direct Rivas to take certain routes, operate in certain territories, work certain hours, accept a certain number of rides, or provide any supervisory role over her day-to-day activities. Rivas could have also utilized another rideshare application such as Lyft at any time. Rivas was not required to dress in any certain uniform. Uber’s role was limited solely to the maintenance of the Driver App that connects a User requesting trip requests with an independent third-party transportation provider who is available to accept trip requests at their choosing. Because Uber did not exercise the requisite level of control over Rivas’ day-to-day operation as a driver, Uber cannot be vicariously liable for Rivas’ conduct in this case. 27. There was never an employment or agency relationship between Rivas and Uber, and neither intended for any such relationship to exist between them. “An employee is one who works for another subject to substantial control, not only over the results produced but also over the means used to produce the results.” Matter of O-Brien v. Spitzer, 7 NY3d 239, 242 (2006). “A person who works for another subject to less extensive control is an independent contractor.” Id. “The critical inquiry in determining whether an employment 11 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 relationship exists ‘pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results.’” Castro-Quesada v. Tuapanta et al, 148 A.D.3d 978 (2d Dept. 2017) citing Matter of O-Brien v. Spitzer, 7 NY3d 239, 242 (2006). 28. It is well established that an employer is not liable for the negligent or tortious acts of an individual it hires as an independent contractor. See, e.g., Phillips v. Uber Techs., Inc., 2017 U.S. Dist. LEXIS 94979, 2017 WL 2782036, (S.D.N.Y. June 14, 2017) (explaining that "[g]enerally, an employer who hires an independent contractor, as distinguished from an employee, is not liable for that individual's negligent or tortious acts"); Von-Ary v. Cain, LLC, 2009 U.S. Dist. LEXIS 54136, 2009 WL 1835934 (S.D.N.Y. June 26, 2009) (same); Cohen v. Deepdale Gardens Corp., 63 Misc. 3d 1226[A], 115 N.Y.S.3d 613 (Sup. Ct. 2019) (same). When determining a worker’s status for the purpose of tort liability, factors relevant to assessing control include whether the worker: (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule. Barak v. Chen, 87 A.D.3d 955, 957 (2d Dept. 2011). 29. New York Courts have declined to find an employer-employee relationship when there is undisputed evidence that a driver: (1) owned his vehicle, (2) was responsible for the maintenance, (3) paid the insurance, (4) had “unfettered discretion to determine the days and times they worked, with no minimum or maximum number of hours,” (5) did not have a uniform or dress code, (6) was free to accept or reject any dispatch, (7) could take breaks and shifts when they wanted, (8) could work for other livery base stations, (9) kept a fixed percentage of all fares and 100% of all tips, and (10) was issued a 1099 form and not a W2. See Chaoni v. Ali, 105 A.D.3d 424 (1st Dept. 2013). 12 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 30. In Zeng Ji Liu v. Bathily, the court declined to find an employment relationship when the medallion lease agreement expressly disclaimed the existence of an employment relationship, the driver was not guaranteed compensation, worked without a fixed schedule, and was free from the cab company’s direction and control. Zeng Ji Liu v. Bathily, 145 A.D.3d 558 (1st Dept. 2016). Evidence that the company conducted a background check of the driver, performed weekly inspections of the vehicle, accepted credit card payments on the driver’s behalf, and had a handbook containing a general dress code were indicative of mere incidental or “general supervisory control.” Chaoni, supra; Zeng Ji Liu, supra; Alves v. Petik, 136 A.D.3d 426 (1st Dept. 2016). 31. On February 19, 2021, Judge John H. Rouse of Supreme Court, Suffolk County ruled that a driver utilizing the Driver App was an independent contractor of Uber as opposed to an employee. See Cortese v. Aman, Index No. 605477/2019, Decision & Order dated Feb. 19, 2021. A copy of Judge Rouse’s decision is annexed hereto as Exhibit “M”. Judge Rouse determined Uber had made a prima facie case the driver was an independent contractor. See id. Plaintiff failed to raise a triable material issue of fact. See id. Accordingly, Judge Rouse granted Uber’s motion for summary judgment and dismissed plaintiff’s vicarious liability claim and direct liability claims of negligent hiring/retention/supervision against Uber. See id. 32. An independent contractor is an entity that retains the right to control its own work, and control the means and methods of all such work. Metzger v. Yorktown Jewish Center, 283 A.D.2d 466, 724 N.Y.S.2d 644 (2d Dept. 2001); Marino v. City of New York, 259 A.D.2d 469, 686 N.Y.S. 2d 77 (2d Dept. 1999). Whether one is an independent contractor or an employee depends on the presence or absence of various indicia, the most important of which is who has control over the manner in which the work was to be performed. Matter of Morton, 284 N.Y.167, 20 N.E.2d 369 (1940); Szabados v. Quinn, 156 A.D.2d 186, 548 N.Y.S.2d 542 (1st 13 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 Dept. 1989); See Anderson v. Oliver VS Garage & Service Station, Inc., 186 A.D.2d 608, 588 N.Y.S. 2d 604 (2nd Dept. 1992); DeFeo v. Frank Lambie, Inc., 146 A.D.2d 521, 536 N.Y.S.2d 459 (lst Dept. 1989) Berger v. Dykstra, supra, See Willis v. New York, 266 A.D.2d 208, 697 N.Y.S.2d 311 (2nd Dept. 1999). 33. Where there is no conflict in the evidence, as in the instant matter, the question of whether a party is an independent contractor may be properly determined by the Court as a matter of law. Shapiro v. Robinson, 102 A.D.2d 822, 476 N.Y.S.2d 596 (2nd Dept. 1984), affd 63 N.Y.2d 96, 483 N.Y.S.2d 203, 472 N.E.2d 1031 (1984); Berger v. Dykstra, 203 A.D.2d 754, 610 N.Y.S.2d 401 (3rd Dept. 1994); Crage v. Kissing Bridge Ski Area, 186 A.D.2d 987, 588 N.Y.S. 2d 449, (4th Dept. 1992); Conroy v. Bilacqua, 179 A.D.2d 596, 549 N.Y.S.2d 655 (1st Dept. 1992); Sykes v. Chevron Companies, 173 A.D.2d 810, 571 N.Y.S.2d 43 (2nd Dept. 1991); Swarts v. Country Log Homes, Inc., 135 A.D.2d 807, 522 N.Y.S. 2d 911 (2nd Dept. 1987); See Begley v. New York, 111 A.D.3d 5, 972 N.Y.S.2d 48 (2nd Dept. 2013). 34. In Sanabria v. Borges, 117 A.D.3d 1024, 986 N.Y.S.2d 553 (2nd Dept. 2017), the plaintiff was seeking damages for injuries sustained when he was struck by the defendant driver’s vehicle. The Second Department held that the defendant driver was an independent contractor and thus the company utilizing his services could not be held vicariously liable. The court held that control of the means and method of the work was the critical factor in determining whether one is an independent contractor or employee. In determining that the driver defendant was an independent contractor, the court noted that he was free to engage in other employment, did not receive fringe benefits, and was not on the alleged employer’s payroll. Taxes were not withheld from the paycheck and the driver received a 1099 form. He was in full control of his schedule and worked at his convenience. He did not have a fixed 14 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 schedule like the employees. He also did not wear a uniform. Id. Further, the operator agreement signed by the driver stated that he was an independent contractor. The Court noted that while the existence of a contract designating a person as an independent contractor is not dispositive, it is a factor to be considered. Id. See also Hernandez v Chefs Diet Delivery, LLC, 81 A.D.3d at 599 (2nd Dept. 2011); Araneo v Town Bd. for Town of Clarkstown, 55 AD3d at 518 (2nd Dept. 2008); Gfeller v Russo, 45 AD3d 1301, 846 NYS2d 501 (4th Dept. 2007); Matter of Bedin, 257 AD2d 809, 684 NYS2d 653 (3rd Dept.1999). 35. Like Sanabria, in the present case the undisputed evidence shows, Uber did not control the means and methods of Rivas’ work and did not direct or supervise Rivas. Furthermore, the factors cited by the Second Department in Sanabria that determined the driver to be an independent contractor are identical to this case including the agreement specifying the relationship between the parties. Like the defendant company utilizing the driver’s services in Sanabria, Plaintiff has produced no evidence to prove Uber had any control over Rivas. To the contrary, the evidence proves she provided her own vehicle, was free to engage in other employment, taxes were not withheld from her paycheck, and she received a 1099 form. Rivas was in full control of her schedule, worked at her convenience, and did not wear a uniform. Taking all of these factors into consideration, there can be no vicarious liability attributed to Uber in this case. 36. There is absolutely no proof that an agency or employee-employer relationship existed between Rivas and Uber. As a result, any argument that the alleged negligent acts of Rivas are imputed to Uber must fail. CONCLUSION 37. Accordingly, the evidence submitted herein affirmatively and conclusively demonstrates Plaintiff cannot establish a prima facie case of liability against Uber. 15 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 Accordingly, Uber’s Motion for Summary Judgment should be granted as a matter of law, and the Complaint and all cross claims must be dismissed with prejudice against Uber. WHEREFORE, it is respectfully requested that the Court issue an Order (1) pursuant to CPLR 3212, granting summary judgment on the issue of liability dismissing all claims as against Defendants, UBER TECHNOLOGIES, INC. and RASIER-NY, LLC (individually and incorrectly sued as “RASIER, LLC” and “RASIER CA, LLC”) and, (2) for such other and further relief as the Court deems just, necessary and proper. Dated: Garden City, New York November 28, 2022 Jamie K. McAleavey Jamie K. McAleavey, Esq. 16 of 17 FILED: NASSAU COUNTY CLERK 11/28/2022 04:54 PM INDEX NO. 601854/2020 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 11/28/2022 CERTIFICATION OF WORD COUNT Pursuant to section 22 NYCRR § 202.8-b of the Uniform Civil Rules, I hereby certify that the number of words in this document, excluding the caption, table of contents, table of authorities, and signature block, is 4,328 words, and the document complies with the word count limit of 7,000. I have relied on the word count of the word-processing system used to prepare the document. Dated: Garden City, New York November 28, 2022 Yours, etc., GOLDBERG SEGALLA LLP By: Jamie K. McAleavey Jamie K. McAleavey, Esq. Attorneys for Defendants UBER TECHNOLOGIES, INC. and RASIER-NY, LLC incorrectly sued as RASIER-NY, LLC, RASIER, LLC and RASIER CA, LLC Mailing Address: P.O. Box 780, Buffalo, New York 14201 200 Garden City Plaza, Suite 520 Garden City, New York 11530 (516) 281-9800 GS File No.: 15899.0120 17 of 17