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SIDLEY AUSTIN LLP BEIJING HONG KONG SHANGHAI
SIDLEY AUSTIN LLP
787 SEVENTH AVENUE BOSTON HOUSTON SINGAPORE
SIDLEY! NEW YORK, NY 10019 BRUSSELS LONDON SYDNEY
(212) 839 5300 CHICAGO LOS ANGELES TOKYO
(212) 839 5599 FAX DALLAS NEW YORK WASHINGTON, D.C.
FRANKFURT. PALO ALTO.
GENEVA SAN FRANCISCO
mjackson@sidley.com
(212) 839 6726 FOUNDED 1866
July 18, 2014
Via NYSCEF and Hand Delivery
The Honorable Kathryn E. Freed
Supreme Court of the State of New York
80 Centre Street, Room 280
New York, New York 10013
Re: | Schneiderman v. Lyft, Inc. (Index No. 451476/2014)
Dear Judge Freed:
Defendant Lyft, Inc. (“Lyft”) respectfully submits this letter to inform the Court that at
the hearing scheduled for 9:30 a.m. today, Defendant intends to move to strike Plaintiffs’
improper Reply Memorandum of Law in Support of Motion for Temporary Restraining Order
and Preliminary Injunction (the “Reply Brief”), the Reply Affirmation of Carolyn Fast, dated
July 17, 2012 (the “Fast Affirmation”), the Reply Affirmation of Joy Feigenbaum in Further
Support of Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction,
dated July 17, 2014 (the “Feigenbaum Affirmation”), the Reply Affidavit of Mark G. Wade
Further Support of Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary
Injunction, dated July 17, 2014 (the Wade Affidavit”) and the Affidavit of Neal W. Schoen,
dated July 17, 2014 (the “Schoen Affidavit”).
As this Court is aware, Plaintiffs moved by order to show cause on July 11, 2014 fora
temporary restraining order and preliminary injunction (the “Order to Show Cause”) to prevent
Lyft from launching in New York City and to enjoin Lyft from operating in Rochester and
Buffalo. Pursuant to the Court’s direction, Defendant filed its opposition papers to the Plaintiffs’
Order to Show Cause on July 14, 2014. Despite the fact that this Court heard oral argument on
the merits of the Plaintiffs’ Order to Show Cause that same day, and adjourned the hearing for
the purpose of allowing the parties an opportunity to negotiate an extra-judicial compromise,
Plaintiffs improperly filed a 27-page Reply Brief, as well as 223 pages of supporting papers.
Plaintiffs’ Reply Brief and supporting papers are improper and must be stricken from the
record. First, the Rules of The Justices of The New York County Supreme Court, Civil Branch
specifically preclude the submission of the Reply Brief. Second, Plaintiffs did not seek leave of
the Court to submit the Reply Brief, nor was any such leave granted by the Court. Finally, the
Reply Brief contains disparaging statements about Defendant despite the fact that this Court
expressly prohibited the parties from making any such statements. For these reasons, as more
fully explained below, the Court should strike the Reply Brief, Fast Affirmation, Feigenbaum
Sidley Austin (NY) LLP is a Delaware limited labilty partnership doing business as Sidiey Austin LLP and practicing in affiliation with other Sidley Austin partnerships.SIDLEY|
July 18, 2014
Page 2
Affirmation, Wade Affidavit and Schoen Affidavit from the record and disregard them in their
entirety.
Plaintiffs’ Reply Brief Is Prohibited By Court Rules and Improper
The Reply Brief and supporting papers are specifically precluded under the Court’s
Rules. Rule 13(b) of The Rules of The Justices of The New York County Supreme Court, Civil
Branch states:
Motions should be brought on by order to show cause only in a proper case
(CPLR 2214 (d)). Unless otherwise directed in the Basic Information section
above or in an order to show cause, original opposition papers on orders to show
cause made returnable in the Part shall be delivered to the Part Clerk at least one
business day prior to that date and reply papers should not be submitted.
(emphasis added).
Plaintiffs completely disregarded this rule when they filed the Reply Brief. There was
not an order to show cause entered allowing for the submission of a reply brief in connection
with the Order to Show Cause. As such, the Reply Brief and supporting papers are improper and
the Court should strike them from the record. See Flores v. Stankiewicz, 35 A.D.3d 804, 805,
827 N.Y.S.2d 281, 282 (2d Dep’t 2006) (“The Supreme Court should not have considered the
plaintiff's alleged documentary proof as it was submitted in counsel’s self-entitled
“Supplemental Affirmation in Opposition,’ which was, in effect, an improper sur-reply”); Sunrise
Plaza Associates, L.P. v. International Summit Equities Corp., 739 N.Y .S.2d 825 (2d Dep’t
2001) (granting motion to strike unauthorized sur-reply); Mu Ying Zhu v. Zhi Rong Lin, 1 A.D.3d
416, 417, 766 N.Y.S.2d 897, 898 (2d Dep’t 2003) (“the Supreme Court properly declined to
consider the physician’s affidavit improperly submitted by the plaintiff for the first time in a sur-
reply”). Cf Bush by Klecar v. Hayward, 156 A.D.2d 899, 900, 549 N.Y.S.2d 873, 875 (3d Dep’t
1989) (“Supreme Court’s refusal to accept plaintiff's responding papers served the day before the
motion was scheduled to be heard was warranted.... Moreover, the papers which plaintiff
attempted to submit to the court contained no valid explanation as to why they were late....
Without a valid excuse, plaintiff's late papers could not properly be considered [citations
omitted].”); Risucci v. Zeal Mgmt. Corp., 258 A.D.2d 512, 512, 685 N.Y.S.2d 280, 280 (2d
Dep’t 1999) (The opposing party did not serve her opposition papers until the return date of the
motion, and the Second Department held that the Supreme Court did not improvidently exercise
its discretion by refusing to consider the opposition papers, despite no showing of prejudice to
the movants, because she failed to provide a valid excuse for the late service).
In addition to the express prohibition on the filing of reply papers in connection with the
Order to Show Cause in the Court Rules, Rule 14(c) makes it clear that once argument has been
heard, papers regarding a motion should not be presented to the court. Rule 14(c) states:
The CPLR does not provide for sur-reply papers, however denominated. Papers
or letters regarding a motion should not be presented to the court after submissionSIDLEY |
July 18, 2014
Page 3
of the motion in the Motion Submission Part Courtroom (Room 130), or after
argument in the Part, if any, except with the advance permission of the court.
Materials presented in violation of this Rule will not be read. (emphasis added).
Here, Plaintiffs’ Reply Brief and supporting papers are further barred by this rule. There
can be no question that the motion has been submitted and the Court has held argument on the
merits of the Order to Show Cause. As such, even if Plaintiffs were entitled to submit a reply
brief under the Court Rules (which they are not), Plaintiffs did not seek the Court’s permission at
any point to submit any additional papers regarding the motion, and at no point did the Court
instruct Plaintiffs to file any such papers. Indeed, the parties appeared before the Court on July
11, 2014 to address the Order to Show Cause. At that hearing, Defendant requested, and was
granted, leave of the court to file a memorandum of law in opposition to the Order to Show
Cause. Plaintiffs, on the other hand, made no request for the Court’s permission to submit reply
papers in support of the Order to Show Cause, and, consequently, no such leave was granted. On
July 14, 2014, the parties again appeared before the Court to address the Order to Show Cause.
The Court heard argument at length from both sides, and at the conclusion of the hearing ordered
the continuation of the status quo and adjourned specifically to allow the parties an opportunity
to negotiate. See 7/14/14 Hr’g Tr. 58:23-61:13. Again, Plaintiffs made no application to the
Court for leave to submit additional papers in support of the Order to Show Cause. In the four
days since the hearing on the merits of the Order to Show Cause, to Defendant’s knowledge,
Plaintiffs have not sought nor been granted permission by the Court to file additional papers in
support of its Order to Show Cause.
Plaintiffs Ignored This Court’s Order And Made Further Disparaging Remarks About Defendant
At the conclusion of this Court’s hearing on the temporary restraining order on Monday,
July 14, 2014, the Court stated “I really don’t want another press release from the AG’s office, I
would want both sides not to make disparaging comments about each other in an atmosphere of
trying to work this out. I would like you to be cooperative with each other and no disparaging
comments.” 7/14/14 Hr’g Tr. 61:2-6. This was ordered in response to Defendants concerns over
the misrepresentations and disparaging comments contained in the joint press release issued by
the AG and the Superintendent after the Court hearing on Friday, July 11, 2014.
This time, rather than issue a press release, despite this Court’s clear mandate that the
parties were to refrain from making disparaging remarks about each other, Plaintiffs filed the
Reply Brief—a 27-page brief containing disparaging remarks about Lyft. For this additional
reason, the Reply Brief and supporting papers should be stricken.SIDLEY
July 18, 2014
Page 4
Respectfully submitted,
Martin 6 GOK OW /
Martin B. Jackson
cc// All counsel of record (via NYSCEF)
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SIDLEY AUSTIN LLP BEIJING HONG KONG SHANGHAI SIDLEY AUSTIN LLP 787 SEVENTH AVENUE BOSTON HOUSTON SINGAPORE SIDLEY! NEW YORK, NY 10019 BRUSSELS LONDON SYDNEY (212) 839 5300 CHICAGO LOS ANGELES TOKYO (212) 839 5599 FAX DALLAS NEW YORK WASHINGTON, D.C. FRANKFURT. PALO ALTO. GENEVA SAN FRANCISCO mjackson@sidley.com (212) 839 6726 FOUNDED 1866 July 18, 2014 Via NYSCEF and Hand Delivery The Honorable Kathryn E. Freed Supreme Court of the State of New York 80 Centre Street, Room 280 New York, New York 10013 Re: | Schneiderman v. Lyft, Inc. (Index No. 451476/2014) Dear Judge Freed: Defendant Lyft, Inc. (“Lyft”) respectfully submits this letter to inform the Court that at the hearing scheduled for 9:30 a.m. today, Defendant intends to move to strike Plaintiffs’ improper Reply Memorandum of Law in Support of Motion for Temporary Restraining Order and Preliminary Injunction (the “Reply Brief”), the Reply Affirmation of Carolyn Fast, dated July 17, 2012 (the “Fast Affirmation”), the Reply Affirmation of Joy Feigenbaum in Further Support of Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction, dated July 17, 2014 (the “Feigenbaum Affirmation”), the Reply Affidavit of Mark G. Wade Further Support of Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction, dated July 17, 2014 (the Wade Affidavit”) and the Affidavit of Neal W. Schoen, dated July 17, 2014 (the “Schoen Affidavit”). As this Court is aware, Plaintiffs moved by order to show cause on July 11, 2014 fora temporary restraining order and preliminary injunction (the “Order to Show Cause”) to prevent Lyft from launching in New York City and to enjoin Lyft from operating in Rochester and Buffalo. Pursuant to the Court’s direction, Defendant filed its opposition papers to the Plaintiffs’ Order to Show Cause on July 14, 2014. Despite the fact that this Court heard oral argument on the merits of the Plaintiffs’ Order to Show Cause that same day, and adjourned the hearing for the purpose of allowing the parties an opportunity to negotiate an extra-judicial compromise, Plaintiffs improperly filed a 27-page Reply Brief, as well as 223 pages of supporting papers. Plaintiffs’ Reply Brief and supporting papers are improper and must be stricken from the record. First, the Rules of The Justices of The New York County Supreme Court, Civil Branch specifically preclude the submission of the Reply Brief. Second, Plaintiffs did not seek leave of the Court to submit the Reply Brief, nor was any such leave granted by the Court. Finally, the Reply Brief contains disparaging statements about Defendant despite the fact that this Court expressly prohibited the parties from making any such statements. For these reasons, as more fully explained below, the Court should strike the Reply Brief, Fast Affirmation, Feigenbaum Sidley Austin (NY) LLP is a Delaware limited labilty partnership doing business as Sidiey Austin LLP and practicing in affiliation with other Sidley Austin partnerships.SIDLEY| July 18, 2014 Page 2 Affirmation, Wade Affidavit and Schoen Affidavit from the record and disregard them in their entirety. Plaintiffs’ Reply Brief Is Prohibited By Court Rules and Improper The Reply Brief and supporting papers are specifically precluded under the Court’s Rules. Rule 13(b) of The Rules of The Justices of The New York County Supreme Court, Civil Branch states: Motions should be brought on by order to show cause only in a proper case (CPLR 2214 (d)). Unless otherwise directed in the Basic Information section above or in an order to show cause, original opposition papers on orders to show cause made returnable in the Part shall be delivered to the Part Clerk at least one business day prior to that date and reply papers should not be submitted. (emphasis added). Plaintiffs completely disregarded this rule when they filed the Reply Brief. There was not an order to show cause entered allowing for the submission of a reply brief in connection with the Order to Show Cause. As such, the Reply Brief and supporting papers are improper and the Court should strike them from the record. See Flores v. Stankiewicz, 35 A.D.3d 804, 805, 827 N.Y.S.2d 281, 282 (2d Dep’t 2006) (“The Supreme Court should not have considered the plaintiff's alleged documentary proof as it was submitted in counsel’s self-entitled “Supplemental Affirmation in Opposition,’ which was, in effect, an improper sur-reply”); Sunrise Plaza Associates, L.P. v. International Summit Equities Corp., 739 N.Y .S.2d 825 (2d Dep’t 2001) (granting motion to strike unauthorized sur-reply); Mu Ying Zhu v. Zhi Rong Lin, 1 A.D.3d 416, 417, 766 N.Y.S.2d 897, 898 (2d Dep’t 2003) (“the Supreme Court properly declined to consider the physician’s affidavit improperly submitted by the plaintiff for the first time in a sur- reply”). Cf Bush by Klecar v. Hayward, 156 A.D.2d 899, 900, 549 N.Y.S.2d 873, 875 (3d Dep’t 1989) (“Supreme Court’s refusal to accept plaintiff's responding papers served the day before the motion was scheduled to be heard was warranted.... Moreover, the papers which plaintiff attempted to submit to the court contained no valid explanation as to why they were late.... Without a valid excuse, plaintiff's late papers could not properly be considered [citations omitted].”); Risucci v. Zeal Mgmt. Corp., 258 A.D.2d 512, 512, 685 N.Y.S.2d 280, 280 (2d Dep’t 1999) (The opposing party did not serve her opposition papers until the return date of the motion, and the Second Department held that the Supreme Court did not improvidently exercise its discretion by refusing to consider the opposition papers, despite no showing of prejudice to the movants, because she failed to provide a valid excuse for the late service). In addition to the express prohibition on the filing of reply papers in connection with the Order to Show Cause in the Court Rules, Rule 14(c) makes it clear that once argument has been heard, papers regarding a motion should not be presented to the court. Rule 14(c) states: The CPLR does not provide for sur-reply papers, however denominated. Papers or letters regarding a motion should not be presented to the court after submissionSIDLEY | July 18, 2014 Page 3 of the motion in the Motion Submission Part Courtroom (Room 130), or after argument in the Part, if any, except with the advance permission of the court. Materials presented in violation of this Rule will not be read. (emphasis added). Here, Plaintiffs’ Reply Brief and supporting papers are further barred by this rule. There can be no question that the motion has been submitted and the Court has held argument on the merits of the Order to Show Cause. As such, even if Plaintiffs were entitled to submit a reply brief under the Court Rules (which they are not), Plaintiffs did not seek the Court’s permission at any point to submit any additional papers regarding the motion, and at no point did the Court instruct Plaintiffs to file any such papers. Indeed, the parties appeared before the Court on July 11, 2014 to address the Order to Show Cause. At that hearing, Defendant requested, and was granted, leave of the court to file a memorandum of law in opposition to the Order to Show Cause. Plaintiffs, on the other hand, made no request for the Court’s permission to submit reply papers in support of the Order to Show Cause, and, consequently, no such leave was granted. On July 14, 2014, the parties again appeared before the Court to address the Order to Show Cause. The Court heard argument at length from both sides, and at the conclusion of the hearing ordered the continuation of the status quo and adjourned specifically to allow the parties an opportunity to negotiate. See 7/14/14 Hr’g Tr. 58:23-61:13. Again, Plaintiffs made no application to the Court for leave to submit additional papers in support of the Order to Show Cause. In the four days since the hearing on the merits of the Order to Show Cause, to Defendant’s knowledge, Plaintiffs have not sought nor been granted permission by the Court to file additional papers in support of its Order to Show Cause. Plaintiffs Ignored This Court’s Order And Made Further Disparaging Remarks About Defendant At the conclusion of this Court’s hearing on the temporary restraining order on Monday, July 14, 2014, the Court stated “I really don’t want another press release from the AG’s office, I would want both sides not to make disparaging comments about each other in an atmosphere of trying to work this out. I would like you to be cooperative with each other and no disparaging comments.” 7/14/14 Hr’g Tr. 61:2-6. This was ordered in response to Defendants concerns over the misrepresentations and disparaging comments contained in the joint press release issued by the AG and the Superintendent after the Court hearing on Friday, July 11, 2014. This time, rather than issue a press release, despite this Court’s clear mandate that the parties were to refrain from making disparaging remarks about each other, Plaintiffs filed the Reply Brief—a 27-page brief containing disparaging remarks about Lyft. For this additional reason, the Reply Brief and supporting papers should be stricken.SIDLEY July 18, 2014 Page 4 Respectfully submitted, Martin 6 GOK OW / Martin B. Jackson cc// All counsel of record (via NYSCEF)