Preview
FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020
NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
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EVERTON BRAMBLE,
Index No. 152400/2020
Plaintiff,
Motion # 008
-against-
LYFT, INC., SALLY FUNDING I LLC, DRIVE SALLY, LLC,
SALLY FUNDING 2016, LLC, SALLY FUNDING 2018,
ARCADIA FUNDS, LLC, DRINNEN-NY, LLC, NICHOLAS
WILLIAMS, ADRIEL GONZALEZ, MAXWELL
HARRINGTON and IBRAHIM NABIE,
Defendants.
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MEMORANDUM OF LAW IN SUPPORT OF LYFT’S MOTION FOR SUMMARY
JUDGMENT
Respectfully submitted,
LEWIS BRISBOIS BISGAARD & SMITH LLP
Attorneys for Defendant
LYFT, INC.
77 Water Street, Suite 2100
New York, NY 10005
(212) 232-1300
File No. 37586.2504
Of Counsel:
David L. Rosenthal, Esq.
Nicholas Hurzeler, Esq.
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Preliminary Statement
Defendant LYFT, INC. (“Lyft” or “Defendant”), by and through its counsel Lewis Brisbois
Bisgaard Smith, LLP, respectfully submits this memorandum of law in support of the instant
motion for an order granting summary judgment on the issue of liability and dismissing the
complaint and all cross-claims against Lyft in their entirety, together with such other relief as the
Court deems just and proper.
Point 1
Lyft Cannot Be Held Liable Because Nabie Was Not Using the
Lyft App at the Time of the Accident and Was Conducting a Personal Errand
It is well settled that New York common-law standards govern the question of whether a
Defendant can be deemed an “employee” or “independent contractor” for purposes of respondeat
superior and vicarious liability. Rokicki v, 24 Hour Courier Service, Inc., 294 A.D.2d 555 (2d
Dept. 2002)(applying common-law factors and holding that defendant courier service was not
liable for accident involving bicycle messenger who was an independent contractor, not an
employee, as a matter of law); Duhe v. Midence, 48 A.D.3d 244 (1st Dept. 2008)(summary
judgment granted where newspaper delivery person was an “independent contractor,” not an
employee, as a matter of law); Marino v. Vega, 12 A.D.3d 329 (1st Dept. 2004)(applying common
law factors in determining that “Defendant Vega ... had an independent contract ... to deliver
these [news]papers, giving him sole responsibility and control over the manner and means of
providing this service. [Defendant] did not exercise sufficient control over the actual delivery
process to raise a triable issue of fact as to whether it was vicariously liable for [defendant’s] acts”).
The Court of Appeals has made clear that “the critical inquiry in determining whether an
employment relationship exists pertains to the degree of control exercised by the purported
employer.” Bynog v. Cipriani Group, 1 N.Y.3d 193, 198 (2003).
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The issue depends on whether certain common-law factors, deemed controlling by the
Court of Appeals, weigh in favor of “independent contractor” or “employee” status (Ibid); see also,
Lazo v. Mak’s Trading Co., Inc., 199 A.D.2d 165, 165-66 (1st Dept. 1993), aff’d, 84 N.Y.2d 896
(1994)(explaining that the test to identify an “employee” versus an “independent contractor” is a
“question of fact concerning which party controls the methods and means by which the work is to
be done. However, where the proof on the issue of control presents no conflict in evidence the
matter may properly be determined by the court as a matter of law”); Fung v. Japan Airlines Co.,
Ltd., 9 N.Y.3d 351, 360 (2007)(“it is not the title of the purported ‘employer’ ... that controls, but
rather the actual working relationship between that party and the purported ‘employee’” depending
on the common-law factors that govern the agency test in New York).
New York courts have recently made clear in at least 21 decisions, copies of which are
annexed hereto for the Court’s convenience (Exhibit “J”), that no claim can be made against a
TNC (Transportation Network Company), such as Lyft, if the driver was not logged into the TNC
application/platform in question at the time of the accident. Indeed, such a driver was necessarily
outside the scope of alleged “employment,” regardless of whether the driver was an “employee”
or “independent contractor.” Davis v. Larhette, 39 A.D.3d 693, 694 (2d Dept. 2007)(“an act is
considered to be within the scope of employment if it is performed while the employee is engaged
generally in the business of his employer, or if his [or her] act may be reasonably said to be
necessary or incidental to such employment”).
First, in the recent decision of Ruiz v. Saleem, Supreme Court New York County Index
No. 157262/2020 (Exh. hereto), Justice Clynes dismissed the action against Uber on
facts strikingly similar to the instant case. The Uber driver had used the vehicle on the date of
the accident, before and after the accident, but the Court dismissed the claim based upon
evidence the driver was not logged into the Uber application at the time of the accident, and
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based upon the driver’s Affidavit stating he was performing personal errands at that time
(Exh. hereto). Furthermore, the Ruiz court specifically rejected the very same argument
that Plaintiff has previously made in the case at bar:
The Uber Defendants move for dismissal on the ground they are not negligent as a matter
of law as Defendant Driver was not working within the app at the time of the accident.
They submit, in relevant part, an affidavit of Todd Gaddis, a Data Science Manager
employed with Uber Technologies, Inc., the app and GPS data, the affidavit of Defendant
Saleem, and the Police Accident Report. In his affidavit, Todd Gaddis avers that as a data
science manager at Uber, he is familiar with the Driver App and the data it captures, Uber’s
business practices and regularly conducted business activities, Uber’s business record
keeping practices used to electronically record, store and retrieve information related to
drivers’ access and usage of the Driver App. Gaddis avers that after searching Uber’s
electronic records, he determined that Defendant Saleem logged ‘offline’ in the Driver
App at approximately 2:45 pm on May 30,2019 and became ‘open’ in the Driver App
at approximately 7:01 pm on May 30, 2019 and as such, Defendant Saleem was not
able to accept rides on the Driver App at the time of the subject accident. In his
affidavit, Defendant Saleem avers that between 2:45 pm and the subject accident, he
was using his vehicle to ‘perform personal errands’ and he was not logged into any
Uber application or doing anything using any Uber application ... He further avers
that his personal errands ‘did not benefit Uber Technologies, Inc. in any way.’
Plaintiff opposes the motion, arguing that issues of fact preclude the granting of summary
judgment. Specifically, Plaintiff contends that it cannot be presumed that Defendant
Saleem understands the legal implications of whether his personal errands benefited Uber,
particularly in the context of this litigation. This Court disagrees. Defendant Saleem’s
specific statement that at the time of the accident, he was driving his vehicle for
‘completely personal reasons ... which did not benefit Uber Technologies, Inc. in any
way’ makes it clear that Defendant Saleem was driving during this time within an
entirely personal capacity. While Plaintiff offers a situation in which the Uber
Defendants may be liable - if Defendant Saleem’s errands had anything to do with his car
- Plaintiff provides no additional evidence, nor does she demonstrate how discovery may
lead to evidence that will support this theory. The mere hope that a party might be able to
uncover some evidence during the discovery process is insufficient to deny summary
judgment... (emphasis added)
Similarly here, the evidence plainly shows that Defendant Nabie was conducting a personal
errand at the time of the accident that consisted of driving to the ATM to get cash. And while the
driver in Ruiz was logged off the Uber application for only 4 hours and 16 minutes, the court held
that amount of time was sufficient to preclude liability.
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Here, Lyft’s position is even stronger since the evidence is undisputed that Nabie was
logged off the Lyft application for 7 /> hours prior to the accident, and he clearly testified his
errand was of a strictly personal nature, as further discussed below and in the accompanying
statement of undisputed facts. Since Lyft’s position in this case is even stronger than Uber’s in
the Ruiz matter, and the Ruiz court rejected the very same argument Plaintiff has previously made
in this case, the Ruiz decision compels the grant of Lyft’s motion here.
Similarly in Pena-Peralta v. Torigar Corp., Supreme Court Queens County Index No.
713147/2021 (Exh. “J-(2)” hereto), Justice Gavrin dismissed a complaint against Uber based on
an employee Affidavit and data showing the driver:
... did not gain access to the Driver App until May 24, 2021 and that drivers can only
receive trip requests for transportation services when logged into the Driver App ... [and]
on the date of plaintiffs accident, neither movant owned, leased, maintained, controlled,
or operated Mena’s vehicle. Therefore, movants have established that they were not
responsible for plaintiffs injuries as there was no connection between them and plaintiffs
accident ... accordingly, the motion to dismiss is granted and the complaint and cross
claims are dismissed as against movants [Uber] (Exh. “J-(2)” hereto).
In O’Neal v. Kashim, Supreme Court, Kings County Index No. 524346/2020 (Exh. “J-
(3)” hereto), Justice Caroline Wade dismissed a complaint against Uber on similar grounds and
explained as follows:
ORDERED that the defendant, Grun, LLC and Uber Technologies, Inc’s motion, pursuant
to CPLR 3212(b), for summary judgment in its favor and for dismissal of the complaint
and all cross claims asserted against them is GRANTED. The movants met their burden
of proof showing that at the time of the underlying accident, that the defendant driver
was not utilizing the Uber Driver’s App and was not furthering the business interests
of the defendant movants to hold them vicariously liable for the actions of the driver.
Moreover, the movants demonstrated that they had no ownership or possessory interest in
the vehicle at the time of the accident. The plaintiff failed to raise any question of fact in
her papers. The mere hope that discovery might reveal a question of fact is not justification
for denying the motion. Accordingly, the movants owed no duty of care to the plaintiff
and are not statutory liable under VTL 388, or any other statute, and are therefore entitled
to summary judgment, (emphasis added)
The evidence in O’Neal included an Affidavit from Uber’s Manager of Data Analytics,
stating that the driver was offline on the date of the accident at 9:03 a.m., and then went online
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later that same night at 10:25 p.m. The police accident report did not specify the exact time of the
accident. The driver had used the Uber app on the same day as the accident, and the driver did not
submit an Affidavit in support of the motion. Notwithstanding that the driver had been on the
Uber app on the same day as the accident, the Court still granted summary judgment in favor
of Uber and dismissed all claims asserted against it.
In Green v. Uber Technologies, Inc„ Index No. 13601/2015 (Sup. Ct. Kings Co. 2021), the
Court granted dismissal where the defendant driver, although he had access to the Uber app, was
not using it at the time of the accident. The court granted Uber’s motion based on Uber’s data,
authenticated with the Affidavit of an Uber employee, proving the driver was not using the app at
the time of the accident, and was not “online” or “available” to receive trip requests at that time.
Based on that evidence, this Court agreed that Plaintiff had no valid cause of action against Uber
(see Order dated March 22, 2021, Exh. “J-(4)” hereto).
Likewise in Collado v. Uber Technologies, Inc., Index No. 715645/2019 (Sup. Ct. Queens
Co. 2020), Uber moved for summary judgment on the ground that the defendant-driver, Pena, had
access to the Uber app, but was not using it at the time of the accident. The accident occurred on
February 12, 2019 at 9:31 a.m. The application data showed the driver was offline on the day of
the accident at 9:23 a.m. — only 8 minutes before the accident — and remained offline until
February 21, 2019 at 6:22 pm, nine days after the accident.
The Court was presented with Pena’s app data and an accompanying Affidavit from Uber,
authenticating the data. Notwithstanding that Pena had been on the app on the date of the
accident, the Court held that Uber could not be held vicariously liable for Pena’s alleged
negligence, because Pena was not using the Uber app at the time of the accident (see Order dated
October 9, 2020, annexed hereto as Exh. “J-(5)”). On that basis, the court agreed that Uber owed
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no duty to the Plaintiff in the first instance, and granted its motion for summary judgment to
dismiss the complaint and all cross claims.
In Bhagwandin v. Chowdhury, Index No. 717962/17 (Sup. Ct. Queens Co. 2018), Uber
moved to dismiss pursuant to CPLR § 3211(a)(7), arguing that the driver, Chowdhury, was not
using the Uber app at the time of the accident. The court granted Uber’s motion (see Order dated
September 26, 2018, annexed hereto as Exh. “J-(6)”), based solely on affidavits from Uber
attesting to the driver’s app status (Ibid).
In Gilkes v. Fischlewitz, Index No. 700220/2018 (Sup. Ct. Queens Co. 2018), the accident
occurred on January 3, 2017 6:48 p.m. An affidavit from an Uber Senior Operations Manager
showed that the driver logged in the driver version of Uber on the same day of the incident, at
11:45 a.m., then logged off at 12:50 p.m., and remained logged off until later that night 8:15 p.m.
(only about 1 ’A hours before the accident). Uber’s motion was also supported by an Affidavit
from the driver, stating he was not using the app at the time of the accident.
The Court found that defendant-driver was not using the Uber app at the time of the alleged
accident, thus establishing that Uber was not responsible for Plaintiffs injuries as there was no
connection between the accident and Uber, and granting dismissal relief on that basis (see Order
dated August 27, 2018, Exh. “J-(7)”) - again, notwithstanding that the driver had used the
app on the same day as the accident.
In Beydoun v. Uber, Index No. 504493/2020 (Sup. Ct. Kings Co.), the Court (Rothenberg,
J.), granted summary judgment to Uber on the ground that “the driver of the vehicle was not
working in the furtherance of [Uber’s] business at the time of the accident” (Exh. “J-(8)”).
In Knick v. Uber Technologies, Inc., Index No. 503898/2018 (Sup. Ct. Kings Co.), the
Court granted dismissal relief in favor of Uber on the ground that the defendant-driver had never
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signed up to use the Uber app, and therefore Uber could not be held liable (see Order dated June
22, 2018, annexed hereto as Exh. “J-(9)”).
Similarly in Prasad v. Palacios, Index No. 718227/2018 (Sup. Ct. Queens Co. 2018),
dismissal was granted to Uber on the ground that the defendant-driver, Palacios, did not have
access to the Uber app on the date of plaintiff’s accident (see Order dated May 14, 2018, annexed
hereto as Exh. “J-(10)”). The court granted the motion based solely on an Affidavit from an Uber
employee attesting to the driver’s lack of access to the app (Id., at 21).
See also, Webster v. Golding, 2022 NY Slip Op 51283(U) (Sup. Ct. Bronx Co. 2022)(Exh.
“J-(ll)”)(granting pre-answer motion to dismiss based on evidence the driver was not logged into
Uber app on the date of the accident, and rejecting Plaintiffs claim of bankruptcy petition as
raising issue of fact); Toro v, Uber, Index No. 805732/2022E (Sup. Ct. Bronx Co. 2022)(Exh. “J-
(12)”)(granting pre-answer motion under CPLR 3211(a)(7) based on police report and affidavit of
Uber Data Science Manager demonstrating driver was off-app at the time of the accident); Vargas
v. Uber, Index No. 815835/2021E (Sup. Ct. Bronx Co. 2022)(Exh. “J-(13)”)(granting CPLR
3211(a)(1) and (a)(7) motion to dismiss based on Uber Affidavit and internal records
demonstrating driver’s account was offline and unable to accept user ride requests on accident
date, and rejecting Plaintiffs argument the motion should be denied as premature pending
depositions and discovery); Peleytay v. Uber, Index No. 709549/2021 (Sup. Ct. Queens Co.
2022)(Exh. “J-(14)”)(granting summary judgment in favor of Uber based on Uber Affidavit
showing driver was not logged into Uber app or transporting an Uber passenger at the time of
accident); Granados v. Uber, Index No. 23233/2018E (Sup. Ct. Bronx Co. 2022)(Exh. “J-
(15)”)(granting summary judgment in favor of Uber based on Affidavit demonstrating driver “had
not utilized the Uber driver application at the time of the accident and that therefore ... Uber cannot
be held vicariously liable”); Sitan v. Uber, Index No. 811740/2021E (Sup. Ct. Bronx Co.
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2022)(Exh. “J-(16)”)(granting summary judgment based on driver’s affidavit stating that “at the
time of the accident he was not logged into or using the Uber application); Gonzalez v. Uber, Index
No. 505524/2022 (Sup. Ct. Kings Co. 2022)(Exh. “J-(17)”)(dismissing complaint based on
manager’s Affidavit and supporting documentation demonstrating the driver was not logged in to
the Uber app at the time of the accident and rejecting Plaintiffs opposition as “unavailing”);
Flowers v. Uber, Index No. 508598/2018 (Sup. Ct. Kings Co. 2022)(Exh. “J-(18)”)(granting
summary judgment based on Affidavit showing driver was not logged into the Uber app at any
time in the 24 hours before or after the accident); Brown v. Uber, Index No. 35531/2020 (Sup. Ct.
Bronx Co. 2022)(Exh. “J-(19)”)(granting dismissal under CPLR 3211(a)(1) and (a)(7)); Jaiman
v. Uber, Index No. 22679/2017 (Sup. Ct. Bronx Co. 2018)(Exh. “J-(20)”)(granting summary
judgment based upon evidence Uber did not own or operate vehicle); Marez and Cruz v. Lyft, Inc.,
Case No. CGC-17-557889, Super. Ct. of Calif., County of San Fran. (Dec. 10, 2018) (Exh. “J-
(21)”)(granting dismissal relief in favor of Lyft on the ground that the defendant driver “was not
on call for customer requests and could not have been unless he activated the Lyft platform ...
because the undisputed facts show that [the driver] acted outside the scope of his relationship with
Lyft when the accident occurred, as a matter of law Lyft is not vicariously liable for [the driver’s]
alleged negligence under an employment, agency, or joint venture theory”).
The foregoing 21 decisions all reflect the same basic principle: under the doctrine of
respondeat superior, principals and employers may be only held liable for damages caused by the
negligence of those agents and employees who are acting within the scope of agency or
employment at the time of the incident in question. Davis v. Larhette, 39 A.D.3d 693 (2d Dep’t
2007); see also Beres v. Terranera, 153 A.D.3d 483 (2d Dep’t 2017) (driver’s employer entitled to
summary judgment where at the time of the driver’s accident with the motorcyclist the driver was
commuting to work from his home in his personal vehicle, not required to drive to work as part of
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his job and not acting in furtherance of his employer’s business); Felberbaum v. Weinberger, 54
A.D.3d 717 (2d Dep’t 2008) (because an employee did not plan to conduct business while in New
York for a wedding, the trial court properly determined that employer could not be held liable for
plaintiffs injuries); Overton v. Ebert, 180 A.D.2d 955 (3d Dep’t 1992) (defendant’s motion for
summary judgment granted where employee was on a break from work and got soda and chips for
himself because he was acting for his own personal convenience and benefit and not in the
furtherance of any duty owed to the employer).
In a case such as this, where the evidence unequivocally shows that the defendant driver,
Nabie, was not logged into the Lyft Platform at the time of the accident, or within several hours of
the accident for that matter, no valid theory of liability can be asserted against Lyft for purposes
of respondeat superior, as a matter of law under the foregoing authorities.
It is undisputed the Lyft log-in data for the date of the incident, November 8, 2020 (Exh.
“H”), shows that Nabie last logged on to the Lyft platform from 1:02 p.m. - 3:37 p.m.,
approximately 7 'A hours prior to the incident that allegedly occurred at 11:05 p.m., and he did not
log back on until Nov. 9, 2020 at 4:48 a.m., approximately 5 A hours after the accident (Ibid). In
his Affidavit Lyft’s employee, Alex Sniegowski, authenticates the data and attests that Lyft does
not own, lease or operate the Toyota Camry (Exh. “B”).
Further, Nabie confirmed at his deposition he was not transporting a passenger and was not
logged onto the Lyft platform. At the time, he was driving from his home to Bank of America for
an errand that, in his telling, was strictly personal in nature (NYSCEF Doc. No. 129 at p. 73-4).
Nabie’s testimony is also consistent with Lyft’s data indicating he ceased using the Lyft app well
before the accident and the errand in question was strictly personal in nature (Ibid., at 77-8):
Q: At any time between finishing your Lyft ride, turning the app off, coming
back home and then going to the bank, did you ever reactivate the app, did
you ever turn it back on?
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A: No, I stopped. I finish for the day. Like six I don’t put on the app again
because everything now is on my private side. I don’t need the app. I
know where I’m going.
Q: When you say your private side, was it your intention to take anyone
anywhere as far as —
A: No, I don’t work. I don’t work. That it was for the bank. I was not going
nowhere. I was going back home to sleep. (Ibid., at 77-8)(emphasis added).
Stated differently, Nabie’s testimony and Lyft’s data both show the accident occurred while
Nabie was running a personal errand that had nothing to do with Lyft. Ruiz v. Saleem, supra (Exh.
“J-(i)” hereto).
Nor does it matter that Nabie had used the Lyft app earlier that day. The same argument
was squarely rejected by the Courts in Gilkes v. Fischlewitz, supra, O’Neal v. Kashim, supra, Ruiz
v. Saleem, supra, and Collado v. Uber, supra. In all four cases the Court granted dismissal relief,
notwithstanding that the driver in each case had used the Uber app on the date of the accident.
This did not matter, because the evidence conclusively showed the driver was not working in any
capacity for Uber at the specific time of the accident. The same result is warranted in favor of Lyft
here.
Therefore, Lyft is entitled to summary judgment on liability. Beres v. Terranera, 153
A.D.3d 483 (2d Dep’t 2017)(defendant’s cross-motion for summary judgment properly granted
where defendant was not acting within the scope of his employment at the time of the accident and
was not acting in furtherance of his employer’s business at the time).
For all the same reasons, the negligent hiring claim should be dismissed. Absent proof that
Nabie was acting within the scope of employment, his alleged negligence has no connection to
any purported negligent hiring, training or retention by Lyft. Moreover, there is no evidence in
the closed record to suggest that this accident occurred because Nabie was inadequately trained by
anyone, and the claim is purely speculative. Sheila C. v. Povich, 11 A.D.3d 120,129-30 (1st Dep’t
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2004); Chagnon v, Tyson, 11 A.D.3d 325, 326 (1st Dep’t 2004); Milosevic v. O'Donnell, 89
A.D.3d 628, 629 (1st Dep’t 2011).
Point 2
The Uy v. Hussein Matter Is Readily Distinguished
Plaintiff has previously cited Uy v. Hussein, 186 A.D.3d 1567 (2d Dept. 2020), which is
inapplicable. In Uy, the Second Department found a question of fact regarding Uber’s vicarious
liability. Uber submitted data and an Affidavit, showing the driver logged off the Uber app about
40 minutes before the accident in question. The Second Department emphasized that “an action
may be considered to be within the scope of employment ... when ‘the employee is engaged
generally in the business of the employer, or if the act may be reasonably said to be necessary or
incidental to such employment’” (Ibid., at 1570, citing Pinto v. Tenenbaum, 105 A.D.3d 930, 931
(2d Dept. 2013)).
The Uy Court found that Uber’s motion, which relied entirely on app data and an Affidavit
from Uber - but no testimony from the driver - failed to eliminate the possibility that the driver
may have been performing some task “incidental” to his work as an Uber driver, especially
considering the driver had last “logged off of the Uber app 40 minutes before the accident” (186
A.D.3d at 1570).
Here, in contrast, Lyft submits undisputed evidence and deposition testimony from the
driver, Nabie, confirming he logged off the Lyft platform 7 V2 hours before the accident, and he
was running a purely personal errand to the Bank of America branch “on my private side.” Such
evidence stands in stark contrast to the Uy case, therefore that matter provides no guidance here.
Plaintiff cannot plausibly claim Nabie was performing some task “incidental” to Lyft when making
what he himself described as a personal errand, in sharp contrast with Uy, wherein the movant
submitted no deposition testimony or Affidavit from the driver whatsoever. Ruiz v. Saleem, supra.
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Therefore, under the case law cited above, Nabie was not driving “for” Lyft in any capacity,
and the instant motion should be granted based on the abundant case law cited above in Point 1,
since it is undisputed Nabie was not using the Lyft app at the time of the accident.
Point 3
Plaintiff Cannot Raise a Triable Issue of Fact
Once aprima facie showing of entitlement to summary judgment is made, the burden shifts
to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the
existence of material issues of triable fact requiring a trial. Zuckerman v. City of New York, 49
N. Y.2d 557, 560 (1980). Self-serving assertions are insufficient for this purpose (Kolbe v. Projects
& Joint Venture Int’l, Inc., 186 A.D.2d 988 (4th Dep’t 1992)), as are speculation and
surmise. Babino v. City of New York, 234 A.D.2d 241, 241(2d Dep’t 1996); Thomas v. New
York City Tr. Auth„ 194 A.D.2d 663, 664 (2d Dep’t 1993).
Further, Plaintiff’s opposition requires a showing of sufficient facts to enable the trier of
fact to reach a conclusion based upon the logical inferences to be drawn from the evidence, and
not upon speculation. See, Holliday v. Hudson Armored Car & Courier Serv., 301 A.D.2d 392,
395 (1st Dep’t 2003); citing Schneider v. Kings Hwy. Hosp. Ctr. Inc., 67 N.Y.2d 743, 744 (N.Y.
1986); Gayle v. City of New York, 92 N.Y.2d 936, 937 (N.Y. 1998).
Where the movant has established a prima facie showing of entitlement to summary
judgment, the motion, unopposed on the merits, shall be granted. Access Capital v, DeCicco, 302
AD2d 48, 53-54 (1st Dep’t 2002). Further, the factual allegations of the moving papers,
uncontradicted by Plaintiff, are sufficient to entitle defendant to judgment dismissing the complaint
as a matter of law. Tortorello v. Carlin, 260 A.D.2d 201 (1st Dep’t 1999).
Plaintiff cannot raise an issue of fact because there is no evidence Lyft owned the vehicle
operated by Nabie at the time of the accident, or that Nabie was working “for” Lyft when the
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accident occurred. Since Lyft established prima facie entitlement to summary judgment and
Plaintiff in opposition cannot raise a triable issue of fact, it is respectfully requested that this Court
issue an Order, pursuant to CPLR § 3212, granting the instant motion dismissing Plaintiffs
complaint in its entirety with prejudice, and all cross-claims.
Any argument that the instant motion is somehow premature would be equally lacking in
merit. It is required that a party who contends that a summary judgment motion is premature must
demonstrate that discovery might lead to relevant evidence or that the facts essential to justify
opposition to the motion are exclusively within the knowledge and control of the movant. See
Cashman v. Berroa, 101 A.D.3d 563 (1st Dep’t 2012) (plaintiff has not shown that additional
discovery will likely lead to evidence warranting denial of defendant’s summary judgment
motion); Hampton Hall Pty Ltd, v. Global Funding Servs., Ltd., 82 A.D.3d 523 (1st Dep’t 2011)
(party’s speculation that evidence enabling it to raise triable issues as to its claims might be
uncovered if it is afforded a further opportunity for discovery is not a sufficient ground for the
denial of summary judgment); Smith v. Andre, 43 A.D.3d 770, 771 (1st Dep’t 2007) (mere hope,
expressed by the owners of property where a slip and fall accident occurred, that evidence
sufficient to establish co-defendant’s liability may have been obtained during discovery did not
fulfill their obligation to demonstrate the likelihood of such disclosure); Moukarzel v. Montefiore
Med. Ctr., 235 AD2d 239, 240 (1st Dep’t 1997) (plaintiff has failed to show that facts essential to
justify opposition may exist; accordingly, summary judgment is not premature).
In contrast, a “mere hope” or speculation that evidence sufficient to defeat a motion for
summary judgment may be uncovered during the discovery process is insufficient to deny the
motion. Boorstein v. 1261 48th St. Condominium, 96 A.D.3d at 704; Westport Ins. Co. v, Altertec
Energy Conservation, LLC, 82 A.D.3d 1207, 1212 (2d Dep’t 2011); Lopez v. WS Distrib., Inc.,
34 A.D.3d 759, 760 (2d Dep’t 2006).
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WHEREFORE, defendant Lyft, Inc. respectfully request that this Court issue an order
granting the instant motion in all respects, together with such other and further relief as the Court
deems just and proper.
Dated: New York, New York
April 4, 2023
Yours, etc.
LEWIS BRISBOIS BISGAARD & SMITH LLP
By: /fc/ ______
David L. Rosenthal, Esq.
Nicholas Hurzeler, Esq.
Attorneys for Defendant
LYFT, INC.
'll Water Street, Suite 2100
New York, NY 10005
(212)232-1300
File No. 37586.2504
TO (All Parties viaNYSCEF):
The Grandelli Firm
Attorneys for Plaintiff
90 Broad Street, 15th Floor
New York, New York 10004
(212) 668-8400
Law Offices of Nancy L. Isserlis, Esq.
Attorneys for Defendants
Sally Funding I LLC, Sally Funding 2016 LLC,
Sally Funding 2018 LLC and Ibrahim Nabie
36-01 43rd Street
Long Island City, New York 11101
(718)361-1514
Molod Spitz & DeSantis, PC
Attorneys for Defendants
Drive Sally LLC, Nicholas Williams,
Adriel Gonzalez and Maxwell Harrington
1430 Broadway, 21st Floor
New York, New York 10018
(212) 869-3200
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Goldberg Segalla, LLP
Attorneys for Defendant
Drinnen-NY, LLC
200 Garden City Plaza, Suite 520
Garden City, New York 11530
(516)281-9800
CERTIFICATION PURSUANT TO UNIFORM RULES 202,8-b(c)
I affirm that the word count of Defendant’s Statement of Material Facts and Memorandum
of Law in Support of Lyft’s Motion for Summary Judgment, excluding the cation, table of contents,
table of authorities and signature block, is 5515.
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Preview
FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ------------------------------------------------------------------------------ X EVERTON BRAMBLE, Index No. 152400/2020 Plaintiff, Motion # 008 -against- LYFT, INC., SALLY FUNDING I LLC, DRIVE SALLY, LLC, SALLY FUNDING 2016, LLC, SALLY FUNDING 2018, ARCADIA FUNDS, LLC, DRINNEN-NY, LLC, NICHOLAS WILLIAMS, ADRIEL GONZALEZ, MAXWELL HARRINGTON and IBRAHIM NABIE, Defendants. ------------------------------------------------------------------------------ X MEMORANDUM OF LAW IN SUPPORT OF LYFT’S MOTION FOR SUMMARY JUDGMENT Respectfully submitted, LEWIS BRISBOIS BISGAARD & SMITH LLP Attorneys for Defendant LYFT, INC. 77 Water Street, Suite 2100 New York, NY 10005 (212) 232-1300 File No. 37586.2504 Of Counsel: David L. Rosenthal, Esq. Nicholas Hurzeler, Esq. 92630492.1 -8- 1 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 Preliminary Statement Defendant LYFT, INC. (“Lyft” or “Defendant”), by and through its counsel Lewis Brisbois Bisgaard Smith, LLP, respectfully submits this memorandum of law in support of the instant motion for an order granting summary judgment on the issue of liability and dismissing the complaint and all cross-claims against Lyft in their entirety, together with such other relief as the Court deems just and proper. Point 1 Lyft Cannot Be Held Liable Because Nabie Was Not Using the Lyft App at the Time of the Accident and Was Conducting a Personal Errand It is well settled that New York common-law standards govern the question of whether a Defendant can be deemed an “employee” or “independent contractor” for purposes of respondeat superior and vicarious liability. Rokicki v, 24 Hour Courier Service, Inc., 294 A.D.2d 555 (2d Dept. 2002)(applying common-law factors and holding that defendant courier service was not liable for accident involving bicycle messenger who was an independent contractor, not an employee, as a matter of law); Duhe v. Midence, 48 A.D.3d 244 (1st Dept. 2008)(summary judgment granted where newspaper delivery person was an “independent contractor,” not an employee, as a matter of law); Marino v. Vega, 12 A.D.3d 329 (1st Dept. 2004)(applying common law factors in determining that “Defendant Vega ... had an independent contract ... to deliver these [news]papers, giving him sole responsibility and control over the manner and means of providing this service. [Defendant] did not exercise sufficient control over the actual delivery process to raise a triable issue of fact as to whether it was vicariously liable for [defendant’s] acts”). The Court of Appeals has made clear that “the critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer.” Bynog v. Cipriani Group, 1 N.Y.3d 193, 198 (2003). 92630492.1 -9- 2 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 The issue depends on whether certain common-law factors, deemed controlling by the Court of Appeals, weigh in favor of “independent contractor” or “employee” status (Ibid); see also, Lazo v. Mak’s Trading Co., Inc., 199 A.D.2d 165, 165-66 (1st Dept. 1993), aff’d, 84 N.Y.2d 896 (1994)(explaining that the test to identify an “employee” versus an “independent contractor” is a “question of fact concerning which party controls the methods and means by which the work is to be done. However, where the proof on the issue of control presents no conflict in evidence the matter may properly be determined by the court as a matter of law”); Fung v. Japan Airlines Co., Ltd., 9 N.Y.3d 351, 360 (2007)(“it is not the title of the purported ‘employer’ ... that controls, but rather the actual working relationship between that party and the purported ‘employee’” depending on the common-law factors that govern the agency test in New York). New York courts have recently made clear in at least 21 decisions, copies of which are annexed hereto for the Court’s convenience (Exhibit “J”), that no claim can be made against a TNC (Transportation Network Company), such as Lyft, if the driver was not logged into the TNC application/platform in question at the time of the accident. Indeed, such a driver was necessarily outside the scope of alleged “employment,” regardless of whether the driver was an “employee” or “independent contractor.” Davis v. Larhette, 39 A.D.3d 693, 694 (2d Dept. 2007)(“an act is considered to be within the scope of employment if it is performed while the employee is engaged generally in the business of his employer, or if his [or her] act may be reasonably said to be necessary or incidental to such employment”). First, in the recent decision of Ruiz v. Saleem, Supreme Court New York County Index No. 157262/2020 (Exh. hereto), Justice Clynes dismissed the action against Uber on facts strikingly similar to the instant case. The Uber driver had used the vehicle on the date of the accident, before and after the accident, but the Court dismissed the claim based upon evidence the driver was not logged into the Uber application at the time of the accident, and 92630492.1 -10- 3 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 based upon the driver’s Affidavit stating he was performing personal errands at that time (Exh. hereto). Furthermore, the Ruiz court specifically rejected the very same argument that Plaintiff has previously made in the case at bar: The Uber Defendants move for dismissal on the ground they are not negligent as a matter of law as Defendant Driver was not working within the app at the time of the accident. They submit, in relevant part, an affidavit of Todd Gaddis, a Data Science Manager employed with Uber Technologies, Inc., the app and GPS data, the affidavit of Defendant Saleem, and the Police Accident Report. In his affidavit, Todd Gaddis avers that as a data science manager at Uber, he is familiar with the Driver App and the data it captures, Uber’s business practices and regularly conducted business activities, Uber’s business record keeping practices used to electronically record, store and retrieve information related to drivers’ access and usage of the Driver App. Gaddis avers that after searching Uber’s electronic records, he determined that Defendant Saleem logged ‘offline’ in the Driver App at approximately 2:45 pm on May 30,2019 and became ‘open’ in the Driver App at approximately 7:01 pm on May 30, 2019 and as such, Defendant Saleem was not able to accept rides on the Driver App at the time of the subject accident. In his affidavit, Defendant Saleem avers that between 2:45 pm and the subject accident, he was using his vehicle to ‘perform personal errands’ and he was not logged into any Uber application or doing anything using any Uber application ... He further avers that his personal errands ‘did not benefit Uber Technologies, Inc. in any way.’ Plaintiff opposes the motion, arguing that issues of fact preclude the granting of summary judgment. Specifically, Plaintiff contends that it cannot be presumed that Defendant Saleem understands the legal implications of whether his personal errands benefited Uber, particularly in the context of this litigation. This Court disagrees. Defendant Saleem’s specific statement that at the time of the accident, he was driving his vehicle for ‘completely personal reasons ... which did not benefit Uber Technologies, Inc. in any way’ makes it clear that Defendant Saleem was driving during this time within an entirely personal capacity. While Plaintiff offers a situation in which the Uber Defendants may be liable - if Defendant Saleem’s errands had anything to do with his car - Plaintiff provides no additional evidence, nor does she demonstrate how discovery may lead to evidence that will support this theory. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny summary judgment... (emphasis added) Similarly here, the evidence plainly shows that Defendant Nabie was conducting a personal errand at the time of the accident that consisted of driving to the ATM to get cash. And while the driver in Ruiz was logged off the Uber application for only 4 hours and 16 minutes, the court held that amount of time was sufficient to preclude liability. 92630492.1 -11- 4 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 Here, Lyft’s position is even stronger since the evidence is undisputed that Nabie was logged off the Lyft application for 7 /> hours prior to the accident, and he clearly testified his errand was of a strictly personal nature, as further discussed below and in the accompanying statement of undisputed facts. Since Lyft’s position in this case is even stronger than Uber’s in the Ruiz matter, and the Ruiz court rejected the very same argument Plaintiff has previously made in this case, the Ruiz decision compels the grant of Lyft’s motion here. Similarly in Pena-Peralta v. Torigar Corp., Supreme Court Queens County Index No. 713147/2021 (Exh. “J-(2)” hereto), Justice Gavrin dismissed a complaint against Uber based on an employee Affidavit and data showing the driver: ... did not gain access to the Driver App until May 24, 2021 and that drivers can only receive trip requests for transportation services when logged into the Driver App ... [and] on the date of plaintiffs accident, neither movant owned, leased, maintained, controlled, or operated Mena’s vehicle. Therefore, movants have established that they were not responsible for plaintiffs injuries as there was no connection between them and plaintiffs accident ... accordingly, the motion to dismiss is granted and the complaint and cross claims are dismissed as against movants [Uber] (Exh. “J-(2)” hereto). In O’Neal v. Kashim, Supreme Court, Kings County Index No. 524346/2020 (Exh. “J- (3)” hereto), Justice Caroline Wade dismissed a complaint against Uber on similar grounds and explained as follows: ORDERED that the defendant, Grun, LLC and Uber Technologies, Inc’s motion, pursuant to CPLR 3212(b), for summary judgment in its favor and for dismissal of the complaint and all cross claims asserted against them is GRANTED. The movants met their burden of proof showing that at the time of the underlying accident, that the defendant driver was not utilizing the Uber Driver’s App and was not furthering the business interests of the defendant movants to hold them vicariously liable for the actions of the driver. Moreover, the movants demonstrated that they had no ownership or possessory interest in the vehicle at the time of the accident. The plaintiff failed to raise any question of fact in her papers. The mere hope that discovery might reveal a question of fact is not justification for denying the motion. Accordingly, the movants owed no duty of care to the plaintiff and are not statutory liable under VTL 388, or any other statute, and are therefore entitled to summary judgment, (emphasis added) The evidence in O’Neal included an Affidavit from Uber’s Manager of Data Analytics, stating that the driver was offline on the date of the accident at 9:03 a.m., and then went online 92630492.1 -12- 5 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 later that same night at 10:25 p.m. The police accident report did not specify the exact time of the accident. The driver had used the Uber app on the same day as the accident, and the driver did not submit an Affidavit in support of the motion. Notwithstanding that the driver had been on the Uber app on the same day as the accident, the Court still granted summary judgment in favor of Uber and dismissed all claims asserted against it. In Green v. Uber Technologies, Inc„ Index No. 13601/2015 (Sup. Ct. Kings Co. 2021), the Court granted dismissal where the defendant driver, although he had access to the Uber app, was not using it at the time of the accident. The court granted Uber’s motion based on Uber’s data, authenticated with the Affidavit of an Uber employee, proving the driver was not using the app at the time of the accident, and was not “online” or “available” to receive trip requests at that time. Based on that evidence, this Court agreed that Plaintiff had no valid cause of action against Uber (see Order dated March 22, 2021, Exh. “J-(4)” hereto). Likewise in Collado v. Uber Technologies, Inc., Index No. 715645/2019 (Sup. Ct. Queens Co. 2020), Uber moved for summary judgment on the ground that the defendant-driver, Pena, had access to the Uber app, but was not using it at the time of the accident. The accident occurred on February 12, 2019 at 9:31 a.m. The application data showed the driver was offline on the day of the accident at 9:23 a.m. — only 8 minutes before the accident — and remained offline until February 21, 2019 at 6:22 pm, nine days after the accident. The Court was presented with Pena’s app data and an accompanying Affidavit from Uber, authenticating the data. Notwithstanding that Pena had been on the app on the date of the accident, the Court held that Uber could not be held vicariously liable for Pena’s alleged negligence, because Pena was not using the Uber app at the time of the accident (see Order dated October 9, 2020, annexed hereto as Exh. “J-(5)”). On that basis, the court agreed that Uber owed 92630492.1 -13- 6 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 no duty to the Plaintiff in the first instance, and granted its motion for summary judgment to dismiss the complaint and all cross claims. In Bhagwandin v. Chowdhury, Index No. 717962/17 (Sup. Ct. Queens Co. 2018), Uber moved to dismiss pursuant to CPLR § 3211(a)(7), arguing that the driver, Chowdhury, was not using the Uber app at the time of the accident. The court granted Uber’s motion (see Order dated September 26, 2018, annexed hereto as Exh. “J-(6)”), based solely on affidavits from Uber attesting to the driver’s app status (Ibid). In Gilkes v. Fischlewitz, Index No. 700220/2018 (Sup. Ct. Queens Co. 2018), the accident occurred on January 3, 2017 6:48 p.m. An affidavit from an Uber Senior Operations Manager showed that the driver logged in the driver version of Uber on the same day of the incident, at 11:45 a.m., then logged off at 12:50 p.m., and remained logged off until later that night 8:15 p.m. (only about 1 ’A hours before the accident). Uber’s motion was also supported by an Affidavit from the driver, stating he was not using the app at the time of the accident. The Court found that defendant-driver was not using the Uber app at the time of the alleged accident, thus establishing that Uber was not responsible for Plaintiffs injuries as there was no connection between the accident and Uber, and granting dismissal relief on that basis (see Order dated August 27, 2018, Exh. “J-(7)”) - again, notwithstanding that the driver had used the app on the same day as the accident. In Beydoun v. Uber, Index No. 504493/2020 (Sup. Ct. Kings Co.), the Court (Rothenberg, J.), granted summary judgment to Uber on the ground that “the driver of the vehicle was not working in the furtherance of [Uber’s] business at the time of the accident” (Exh. “J-(8)”). In Knick v. Uber Technologies, Inc., Index No. 503898/2018 (Sup. Ct. Kings Co.), the Court granted dismissal relief in favor of Uber on the ground that the defendant-driver had never 92630492.1 -14- 7 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 signed up to use the Uber app, and therefore Uber could not be held liable (see Order dated June 22, 2018, annexed hereto as Exh. “J-(9)”). Similarly in Prasad v. Palacios, Index No. 718227/2018 (Sup. Ct. Queens Co. 2018), dismissal was granted to Uber on the ground that the defendant-driver, Palacios, did not have access to the Uber app on the date of plaintiff’s accident (see Order dated May 14, 2018, annexed hereto as Exh. “J-(10)”). The court granted the motion based solely on an Affidavit from an Uber employee attesting to the driver’s lack of access to the app (Id., at 21). See also, Webster v. Golding, 2022 NY Slip Op 51283(U) (Sup. Ct. Bronx Co. 2022)(Exh. “J-(ll)”)(granting pre-answer motion to dismiss based on evidence the driver was not logged into Uber app on the date of the accident, and rejecting Plaintiffs claim of bankruptcy petition as raising issue of fact); Toro v, Uber, Index No. 805732/2022E (Sup. Ct. Bronx Co. 2022)(Exh. “J- (12)”)(granting pre-answer motion under CPLR 3211(a)(7) based on police report and affidavit of Uber Data Science Manager demonstrating driver was off-app at the time of the accident); Vargas v. Uber, Index No. 815835/2021E (Sup. Ct. Bronx Co. 2022)(Exh. “J-(13)”)(granting CPLR 3211(a)(1) and (a)(7) motion to dismiss based on Uber Affidavit and internal records demonstrating driver’s account was offline and unable to accept user ride requests on accident date, and rejecting Plaintiffs argument the motion should be denied as premature pending depositions and discovery); Peleytay v. Uber, Index No. 709549/2021 (Sup. Ct. Queens Co. 2022)(Exh. “J-(14)”)(granting summary judgment in favor of Uber based on Uber Affidavit showing driver was not logged into Uber app or transporting an Uber passenger at the time of accident); Granados v. Uber, Index No. 23233/2018E (Sup. Ct. Bronx Co. 2022)(Exh. “J- (15)”)(granting summary judgment in favor of Uber based on Affidavit demonstrating driver “had not utilized the Uber driver application at the time of the accident and that therefore ... Uber cannot be held vicariously liable”); Sitan v. Uber, Index No. 811740/2021E (Sup. Ct. Bronx Co. 92630492.1 -15- 8 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 2022)(Exh. “J-(16)”)(granting summary judgment based on driver’s affidavit stating that “at the time of the accident he was not logged into or using the Uber application); Gonzalez v. Uber, Index No. 505524/2022 (Sup. Ct. Kings Co. 2022)(Exh. “J-(17)”)(dismissing complaint based on manager’s Affidavit and supporting documentation demonstrating the driver was not logged in to the Uber app at the time of the accident and rejecting Plaintiffs opposition as “unavailing”); Flowers v. Uber, Index No. 508598/2018 (Sup. Ct. Kings Co. 2022)(Exh. “J-(18)”)(granting summary judgment based on Affidavit showing driver was not logged into the Uber app at any time in the 24 hours before or after the accident); Brown v. Uber, Index No. 35531/2020 (Sup. Ct. Bronx Co. 2022)(Exh. “J-(19)”)(granting dismissal under CPLR 3211(a)(1) and (a)(7)); Jaiman v. Uber, Index No. 22679/2017 (Sup. Ct. Bronx Co. 2018)(Exh. “J-(20)”)(granting summary judgment based upon evidence Uber did not own or operate vehicle); Marez and Cruz v. Lyft, Inc., Case No. CGC-17-557889, Super. Ct. of Calif., County of San Fran. (Dec. 10, 2018) (Exh. “J- (21)”)(granting dismissal relief in favor of Lyft on the ground that the defendant driver “was not on call for customer requests and could not have been unless he activated the Lyft platform ... because the undisputed facts show that [the driver] acted outside the scope of his relationship with Lyft when the accident occurred, as a matter of law Lyft is not vicariously liable for [the driver’s] alleged negligence under an employment, agency, or joint venture theory”). The foregoing 21 decisions all reflect the same basic principle: under the doctrine of respondeat superior, principals and employers may be only held liable for damages caused by the negligence of those agents and employees who are acting within the scope of agency or employment at the time of the incident in question. Davis v. Larhette, 39 A.D.3d 693 (2d Dep’t 2007); see also Beres v. Terranera, 153 A.D.3d 483 (2d Dep’t 2017) (driver’s employer entitled to summary judgment where at the time of the driver’s accident with the motorcyclist the driver was commuting to work from his home in his personal vehicle, not required to drive to work as part of 92630492.1 -16- 9 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 his job and not acting in furtherance of his employer’s business); Felberbaum v. Weinberger, 54 A.D.3d 717 (2d Dep’t 2008) (because an employee did not plan to conduct business while in New York for a wedding, the trial court properly determined that employer could not be held liable for plaintiffs injuries); Overton v. Ebert, 180 A.D.2d 955 (3d Dep’t 1992) (defendant’s motion for summary judgment granted where employee was on a break from work and got soda and chips for himself because he was acting for his own personal convenience and benefit and not in the furtherance of any duty owed to the employer). In a case such as this, where the evidence unequivocally shows that the defendant driver, Nabie, was not logged into the Lyft Platform at the time of the accident, or within several hours of the accident for that matter, no valid theory of liability can be asserted against Lyft for purposes of respondeat superior, as a matter of law under the foregoing authorities. It is undisputed the Lyft log-in data for the date of the incident, November 8, 2020 (Exh. “H”), shows that Nabie last logged on to the Lyft platform from 1:02 p.m. - 3:37 p.m., approximately 7 'A hours prior to the incident that allegedly occurred at 11:05 p.m., and he did not log back on until Nov. 9, 2020 at 4:48 a.m., approximately 5 A hours after the accident (Ibid). In his Affidavit Lyft’s employee, Alex Sniegowski, authenticates the data and attests that Lyft does not own, lease or operate the Toyota Camry (Exh. “B”). Further, Nabie confirmed at his deposition he was not transporting a passenger and was not logged onto the Lyft platform. At the time, he was driving from his home to Bank of America for an errand that, in his telling, was strictly personal in nature (NYSCEF Doc. No. 129 at p. 73-4). Nabie’s testimony is also consistent with Lyft’s data indicating he ceased using the Lyft app well before the accident and the errand in question was strictly personal in nature (Ibid., at 77-8): Q: At any time between finishing your Lyft ride, turning the app off, coming back home and then going to the bank, did you ever reactivate the app, did you ever turn it back on? 92630492.1 -17- 10 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 A: No, I stopped. I finish for the day. Like six I don’t put on the app again because everything now is on my private side. I don’t need the app. I know where I’m going. Q: When you say your private side, was it your intention to take anyone anywhere as far as — A: No, I don’t work. I don’t work. That it was for the bank. I was not going nowhere. I was going back home to sleep. (Ibid., at 77-8)(emphasis added). Stated differently, Nabie’s testimony and Lyft’s data both show the accident occurred while Nabie was running a personal errand that had nothing to do with Lyft. Ruiz v. Saleem, supra (Exh. “J-(i)” hereto). Nor does it matter that Nabie had used the Lyft app earlier that day. The same argument was squarely rejected by the Courts in Gilkes v. Fischlewitz, supra, O’Neal v. Kashim, supra, Ruiz v. Saleem, supra, and Collado v. Uber, supra. In all four cases the Court granted dismissal relief, notwithstanding that the driver in each case had used the Uber app on the date of the accident. This did not matter, because the evidence conclusively showed the driver was not working in any capacity for Uber at the specific time of the accident. The same result is warranted in favor of Lyft here. Therefore, Lyft is entitled to summary judgment on liability. Beres v. Terranera, 153 A.D.3d 483 (2d Dep’t 2017)(defendant’s cross-motion for summary judgment properly granted where defendant was not acting within the scope of his employment at the time of the accident and was not acting in furtherance of his employer’s business at the time). For all the same reasons, the negligent hiring claim should be dismissed. Absent proof that Nabie was acting within the scope of employment, his alleged negligence has no connection to any purported negligent hiring, training or retention by Lyft. Moreover, there is no evidence in the closed record to suggest that this accident occurred because Nabie was inadequately trained by anyone, and the claim is purely speculative. Sheila C. v. Povich, 11 A.D.3d 120,129-30 (1st Dep’t 92630492.1 -18- 11 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 2004); Chagnon v, Tyson, 11 A.D.3d 325, 326 (1st Dep’t 2004); Milosevic v. O'Donnell, 89 A.D.3d 628, 629 (1st Dep’t 2011). Point 2 The Uy v. Hussein Matter Is Readily Distinguished Plaintiff has previously cited Uy v. Hussein, 186 A.D.3d 1567 (2d Dept. 2020), which is inapplicable. In Uy, the Second Department found a question of fact regarding Uber’s vicarious liability. Uber submitted data and an Affidavit, showing the driver logged off the Uber app about 40 minutes before the accident in question. The Second Department emphasized that “an action may be considered to be within the scope of employment ... when ‘the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment’” (Ibid., at 1570, citing Pinto v. Tenenbaum, 105 A.D.3d 930, 931 (2d Dept. 2013)). The Uy Court found that Uber’s motion, which relied entirely on app data and an Affidavit from Uber - but no testimony from the driver - failed to eliminate the possibility that the driver may have been performing some task “incidental” to his work as an Uber driver, especially considering the driver had last “logged off of the Uber app 40 minutes before the accident” (186 A.D.3d at 1570). Here, in contrast, Lyft submits undisputed evidence and deposition testimony from the driver, Nabie, confirming he logged off the Lyft platform 7 V2 hours before the accident, and he was running a purely personal errand to the Bank of America branch “on my private side.” Such evidence stands in stark contrast to the Uy case, therefore that matter provides no guidance here. Plaintiff cannot plausibly claim Nabie was performing some task “incidental” to Lyft when making what he himself described as a personal errand, in sharp contrast with Uy, wherein the movant submitted no deposition testimony or Affidavit from the driver whatsoever. Ruiz v. Saleem, supra. 92630492.1 -19- 12 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 Therefore, under the case law cited above, Nabie was not driving “for” Lyft in any capacity, and the instant motion should be granted based on the abundant case law cited above in Point 1, since it is undisputed Nabie was not using the Lyft app at the time of the accident. Point 3 Plaintiff Cannot Raise a Triable Issue of Fact Once aprima facie showing of entitlement to summary judgment is made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of triable fact requiring a trial. Zuckerman v. City of New York, 49 N. Y.2d 557, 560 (1980). Self-serving assertions are insufficient for this purpose (Kolbe v. Projects & Joint Venture Int’l, Inc., 186 A.D.2d 988 (4th Dep’t 1992)), as are speculation and surmise. Babino v. City of New York, 234 A.D.2d 241, 241(2d Dep’t 1996); Thomas v. New York City Tr. Auth„ 194 A.D.2d 663, 664 (2d Dep’t 1993). Further, Plaintiff’s opposition requires a showing of sufficient facts to enable the trier of fact to reach a conclusion based upon the logical inferences to be drawn from the evidence, and not upon speculation. See, Holliday v. Hudson Armored Car & Courier Serv., 301 A.D.2d 392, 395 (1st Dep’t 2003); citing Schneider v. Kings Hwy. Hosp. Ctr. Inc., 67 N.Y.2d 743, 744 (N.Y. 1986); Gayle v. City of New York, 92 N.Y.2d 936, 937 (N.Y. 1998). Where the movant has established a prima facie showing of entitlement to summary judgment, the motion, unopposed on the merits, shall be granted. Access Capital v, DeCicco, 302 AD2d 48, 53-54 (1st Dep’t 2002). Further, the factual allegations of the moving papers, uncontradicted by Plaintiff, are sufficient to entitle defendant to judgment dismissing the complaint as a matter of law. Tortorello v. Carlin, 260 A.D.2d 201 (1st Dep’t 1999). Plaintiff cannot raise an issue of fact because there is no evidence Lyft owned the vehicle operated by Nabie at the time of the accident, or that Nabie was working “for” Lyft when the 92630492.1 -20- 13 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 accident occurred. Since Lyft established prima facie entitlement to summary judgment and Plaintiff in opposition cannot raise a triable issue of fact, it is respectfully requested that this Court issue an Order, pursuant to CPLR § 3212, granting the instant motion dismissing Plaintiffs complaint in its entirety with prejudice, and all cross-claims. Any argument that the instant motion is somehow premature would be equally lacking in merit. It is required that a party who contends that a summary judgment motion is premature must demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion are exclusively within the knowledge and control of the movant. See Cashman v. Berroa, 101 A.D.3d 563 (1st Dep’t 2012) (plaintiff has not shown that additional discovery will likely lead to evidence warranting denial of defendant’s summary judgment motion); Hampton Hall Pty Ltd, v. Global Funding Servs., Ltd., 82 A.D.3d 523 (1st Dep’t 2011) (party’s speculation that evidence enabling it to raise triable issues as to its claims might be uncovered if it is afforded a further opportunity for discovery is not a sufficient ground for the denial of summary judgment); Smith v. Andre, 43 A.D.3d 770, 771 (1st Dep’t 2007) (mere hope, expressed by the owners of property where a slip and fall accident occurred, that evidence sufficient to establish co-defendant’s liability may have been obtained during discovery did not fulfill their obligation to demonstrate the likelihood of such disclosure); Moukarzel v. Montefiore Med. Ctr., 235 AD2d 239, 240 (1st Dep’t 1997) (plaintiff has failed to show that facts essential to justify opposition may exist; accordingly, summary judgment is not premature). In contrast, a “mere hope” or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion. Boorstein v. 1261 48th St. Condominium, 96 A.D.3d at 704; Westport Ins. Co. v, Altertec Energy Conservation, LLC, 82 A.D.3d 1207, 1212 (2d Dep’t 2011); Lopez v. WS Distrib., Inc., 34 A.D.3d 759, 760 (2d Dep’t 2006). 92630492.1 -21- 14 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 WHEREFORE, defendant Lyft, Inc. respectfully request that this Court issue an order granting the instant motion in all respects, together with such other and further relief as the Court deems just and proper. Dated: New York, New York April 4, 2023 Yours, etc. LEWIS BRISBOIS BISGAARD & SMITH LLP By: /fc/ ______ David L. Rosenthal, Esq. Nicholas Hurzeler, Esq. Attorneys for Defendant LYFT, INC. 'll Water Street, Suite 2100 New York, NY 10005 (212)232-1300 File No. 37586.2504 TO (All Parties viaNYSCEF): The Grandelli Firm Attorneys for Plaintiff 90 Broad Street, 15th Floor New York, New York 10004 (212) 668-8400 Law Offices of Nancy L. Isserlis, Esq. Attorneys for Defendants Sally Funding I LLC, Sally Funding 2016 LLC, Sally Funding 2018 LLC and Ibrahim Nabie 36-01 43rd Street Long Island City, New York 11101 (718)361-1514 Molod Spitz & DeSantis, PC Attorneys for Defendants Drive Sally LLC, Nicholas Williams, Adriel Gonzalez and Maxwell Harrington 1430 Broadway, 21st Floor New York, New York 10018 (212) 869-3200 92630492.1 -22- 15 of 16 FILED: RICHMOND COUNTY CLERK 04/04/2023 01:09 PM INDEX NO. 152400/2020 NYSCEF DOC. NO. 207 RECEIVED NYSCEF: 04/04/2023 Goldberg Segalla, LLP Attorneys for Defendant Drinnen-NY, LLC 200 Garden City Plaza, Suite 520 Garden City, New York 11530 (516)281-9800 CERTIFICATION PURSUANT TO UNIFORM RULES 202,8-b(c) I affirm that the word count of Defendant’s Statement of Material Facts and Memorandum of Law in Support of Lyft’s Motion for Summary Judgment, excluding the cation, table of contents, table of authorities and signature block, is 5515. 92630492.1 -23- 16 of 16