Opinion
Index No. 26842/2020E
04-05-2023
Melanie Brown, Plaintiff, v. Juan Almont and Uber Technologies Inc., Defendants.
Plaintiff Melanie Brown Andrew G. Sfouggatakis, Esq. (andrew@pslegalny.com) Pavlounis & Sfouggatakis, LLP Defendant Juan Almont Nancy L. Isserlis, Esq. (nisserlis@herefordinsurance.com) William J. Cariello III, Esq. (wcariello@herefordinsurance.com) Defendant Uber Technologies, Inc. Tal Z. Cushmaro, Esq. (tal.cushmaro@wilsonelser.com) Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
Plaintiff Melanie Brown Andrew G. Sfouggatakis, Esq. (andrew@pslegalny.com) Pavlounis & Sfouggatakis, LLP
Defendant Juan Almont Nancy L. Isserlis, Esq. (nisserlis@herefordinsurance.com)
William J. Cariello III, Esq. (wcariello@herefordinsurance.com)
Defendant Uber Technologies, Inc. Tal Z. Cushmaro, Esq. (tal.cushmaro@wilsonelser.com) Wilson, Elser, Moskowitz, Edelman & Dicker, LLP
HON. VERONICA G. HUMMEL, A.J.S.C.
In accordance with CPLR 2219(a), this decision is made upon consideration of all papers filed in NYSCEF in connection with Motion Sequence No. 1, comprising plaintiff MELANIE BROWN's (" Brown ") motion, defendant UBER TECHNOLOGIES, INC.'s (" Uber ") two cross-motions, and Brown's cross-motion. Brown's motion seeks an order, pursuant to CPLR 3212, granting her summary judgment against defendant JUAN ALMONT (" Almont ") and Uber on the issue of liability and striking their affirmative defenses of comparative negligence. Uber cross-moved to stay Brown's motion for summary judgment in light of Uber's intent to arbitrate Brown's claims. Brown, in turn, cross-moved to stay the arbitration pursuant to CPLR § 7503(c). Finally, Uber cross-moved once again to compel arbitration of Brown's claims and stay the action pursuant to CPLR § 7503(a).
Oral argument on the motion and cross-motions was heard before the Court virtually via Microsoft Teams on March 28, 2022. For the reasons discussed below, Brown's motion is GRANTED IN PART, Uber's cross-motions are DENIED, and Brown's cross-motion is GRANTED.
In this action, Brown seeks compensation for alleged personal injuries suffered during a motor-vehicle accident that occurred on May 10, 2019, at 42nd Street and Second Avenue in New York, New York. Brown was a passenger in the rear seat of a vehicle driven by Almont that came into contact with another vehicle. At the time of the accident, Almont was operating his vehicle as an Uber taxi.
Brown initiated this action by the filing of a Summons and Complaint on July 6, 2020. [NYSCEF Doc. 1]
On July 22, 2021, Brown filed her instant motion for summary judgment. [ Id. Docs. 10-13]
On August 25, 2021, more than a year after Brown filed her Complaint, Uber served on Brown a CPLR § 7503(c) notice of intention to arbitrate, dated August 11, 2021 (the" Arbitration Notice "). [ Id. Docs. 22 & 23] The Arbitration Notice stated that Brown agreed to an arbitration agreement when she registered an account through the Uber rider application (the" Rider App ") on September 13, 2014. [ Id. Doc. 22] According to the Arbitration Notice, the arbitration agreement provides, in relevant part:
2. Arbitration Agreement
By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Uber on an individual basis in arbitration, as set forth in this Arbitration Agreement....
Agreement to Binding Arbitration Between You and Uber.
You and Uber agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Uber, and not in a court of law.
You acknowledge and agree that you and Uber are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding....[ Id. ] Based on this arbitration agreement, Uber requested that Brown agree to transfer this action to arbitration. Uber also noted that, pursuant to CPLR § 7503(c), Brown's failure to file an application to stay arbitration within 20 days after service of the Arbitration Notice would preclude her from objecting to arbitration on the basis that a valid agreement had not been made or had not been complied with.
On September 17, 2021, Uber filed its cross-motion to stay the motion for summary judgment. [NYSCEF Doc. 19]
On October 15, 2021, approximately 51 days after delivery of the Arbitration Notice, Brown filed her cross-motion to stay arbitration. [NYSCEF Doc. 32]
On November 15, 2021, Uber filed its cross-motion to compel arbitration. [NYSCEF Doc. 39] In support of its cross-motion, Uber submitted copies of the Arbitration Notice and its U.S. Terms of Use effective December 13, 2017 (the" 2017 Terms "), neither of which were annexed to an authenticating affidavit or affirmation.
I. THE CROSS-MOTIONS
The parties' arguments on the cross-motions to stay and to compel arbitration can be summarized as follows.
Uber contends that Brown agreed to the arbitration agreement referred to and quoted in the Arbitration Notice when she created a Rider App account on September 13, 2014, and further agreed to the 2017 Terms "by continuing to use [the Rider] App up until and including on May 10, 2019 (the date of the subject accident)." [NYSCEF Doc. 40, ¶ 22] The relevant provisions of the 2017 Terms are identical to the relevant provisions of the arbitration agreement quoted in the Arbitration Notice; accordingly, the Court will hereinafter refer to both agreements collectively as the" Arbitration Agreement." Uber further contends that, because Brown failed to move to stay arbitration within 20 days after delivery of the Arbitration Notice (i.e., by September 14, 2021), Brown is precluded from disputing the validity of the Arbitration Agreement.
It is unclear whether the Arbitration Notice quotes the 2017 Terms (which would not have been in effect when Brown created her Rider App account) or, alternatively, whether the relevant provisions in effect when Brown created her Rider App account in September 2014 simply were not amended as part of the 2017 update to Uber's U.S Terms of Use.
Brown contends that Uber has failed to submit any evidence-admissible or otherwise-establishing that Brown agreed to the Arbitration Agreement. Thus, according to Brown, her application falls within the exception to CPLR § 7503(c) articulated in Matarasso v. Continental Casualty Co., 56 N.Y.2d 264 (1982).
Uber, in turn, disputes Matarasso 's applicability and argues instead that the facts of this case are more aligned with Fiveco, Inc. v. Haber, 11 N.Y.3d 140 (2008).
Here, there is no dispute that the Arbitration Notice complied with the requirements of CPLR § 7503(c), that Uber served it on Brown in compliance with § 7503(c), and that Brown did not move to stay arbitration within the 20 days mandated by § 7503(c). Thus, Brown is indisputably precluded from arguing that "a valid agreement was not made or has not been complied with." CPLR § 7503(c).
As Brown correctly points out, however, the Court of Appeals held in Matarasso that a court may consider an untimely petition to stay arbitration where "its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with." 56 N.Y.2d at 266; see also id. at 267-68 ("However, this rule barring judicial intervention into the arbitral process operates only when an agreement to arbitrate exists.... [W]e cannot impute to the Legislature an intent to bind persons to the arbitral process by their mere inaction for 20 days where no agreement to arbitrate has ever been made." (internal citations omitted)). Brown's cross-motion, which effectively disputes that she agreed to the Arbitration Agreement insofar as Uber has failed to produce or present any evidence establishing that fact, falls squarely within the Matarasso exception. Indeed, the First Department recently considered a nearly identical scenario involving Uber and reached the same conclusion. See Castro v. Jem Leasing, LLC, 183 N.Y.S.3d 744 (1st Dep't 2023).
Uber, for its part, misreads Fiveco. In that case, the Court of Appeals first restated and reaffirmed its holding in Matarasso. See 11 N.Y.3d at 144. It next explained why the Matarasso exception was inapplicable to the facts and arguments then before the court: "Fiveco does not assert that the parties never entered into an arbitration agreement; rather, it simply attacks the present viability of the contracts containing the agreement to arbitrate." Id. at 145. Fiveco lends no support, therefore, to Uber's opposition theory that because the contract relied on in the Arbitration Notice indisputably contains an arbitration agreement, Brown is barred from asserting the Matarasso exception. [NYSCEF Doc. 49, ¶¶ 5-6] That simply is not what Fiveco held and ignores the formation-vs.-validity distinction on which Matarasso is based. Indeed, if such a theory were upheld, it would effectively eliminate Matarasso 's exception to the preclusive effect of CPLR § 7503(c).
Both federal and New York law recognize the "fundamental principle that arbitration is a matter of contract." AT&T Mobility LLC, AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal quotation marks and citation omitted); accord People ex rel. Cuomo v. Coventry First LLC, 13 N.Y.3d 108, 113 (2009) ("However, the obligation to arbitrate depends on an agreement to arbitrate; arbitration is a matter of consent, not coercion." (internal quotation marks and citation omitted)). Thus, "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643, 648 (1986); accord, e.g., Inland Shoe Mfg. Co., Inc. v. Pervel Indus., Inc., 81 A.D.2d 505, 505 (1st Dep't 1981) ("It is hornbook law that no one may be compelled to arbitrate unless he has agreed to do so. This is true under the Federal Arbitration Law..., as it is under the law of this State."); Brean Capital LLC v. NewOak Capital LLC, 46 Misc.3d 1203 (A), at *2 (NY Sup. Ct. NY Cty. Dec. 22, 2014) ("[T]he applicable federal and New York law is basically the same, namely a liberal public policy in favor of arbitration, the principle that a party cannot be forced to arbitrate unless they agreed to do so by contract, and that the existence of an agreement to arbitrate is a question for a court, not the arbitrator." (citations omitted)).
"Accordingly, on a motion to compel or stay arbitration, a court must determine, 'in the first instance... whether parties have agreed to submit their disputes to arbitration and, if so, whether the disputes generally come within the scope of their arbitration agreement.'" Degraw Const. Grp., Inc. v. McGowan Builders, Inc., 152 A.D.3d 567, 569 (2d Dep't 2017) (quoting Sisters of St. John the Baptist, Providence Rest Convent v. Geraghty Constructor, 67 N.Y.2d 997, 998 (1986)); accord JLM Indus., Inc. v. Stolt-Nielsen SA, 387 F.3d 163, 169 (2d. Cir. 2004). When deciding whether the parties agreed to arbitrate a particular matter, courts "apply ordinary state-law principles that govern the formation of contracts." First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995).
In New York, "[t]o form a binding contract there must be a meeting of the minds, such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms." Stonehill Capital Mgmt., LLC v. Bank of the W., 28 N.Y.3d 439, 448 (2016) (internal quotation marks and citations omitted). The parties' objective manifestations of assent, viewed within the totality of the surrounding circumstances, are determinative of the contract-formation question. Id. at 448-49 (citation omitted). Such manifestations may be expressed through a party's written or spoken words, silence, or conduct, so long as the party "intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents." See id.; Restatement (Second) of Contracts § 19(1)-(2). Thus, "[t]here is no requirement that [a] writing be signed so long as there is other proof that the parties actually agreed on it." Crawford v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 35 N.Y.2d 291 299 (1974) (internal quotation marks omitted). As to arbitration agreements, under New York law, the party seeking to enforce such an agreement must "demonstrate a clear and unequivocal agreement to arbitrate." Burke v. Gray, 146 A.D.3d 452, 452 (1st Dep't 2017) (citation omitted).
Here, Uber has failed to meet its burden. In opposition to Brown's cross-motion to stay, and in support of its own cross-motion to compel, Uber submits only the Arbitration Notice and an unauthenticated copy of the 2017 Terms. Uber makes no effort whatsoever to demonstrate through evidence: (1) the process through which Brown created a Rider App account in September 2014 and whether it "constituted a valid clickwrap agreement putting [Brown] on inquiry notice of contract terms, including the [A]rbitration [A]greement," Castro, 183 N.Y.S.3d at 745; (2) the process through which Brown was allegedly made aware of the 2017 Terms and whether that process put Brown on adequate notice of the Arbitration Agreement; and (3) whether Brown "assented to any such agreement," id. (citing Meyer v. Uber Tech., Inc., 868 F.3d 66, 75, 79-80 (2d Cir. 2017); Wu v. Uber Tech., Inc., -- Misc.3d --, 2022 NY Slip Op. 22388, at *19, 21 (Sup. Ct. Bronx Cty. 2022)). Nor, as of the date of the cross-motions, has Uber yet produced any such evidence in discovery.
Accordingly, Brown's cross-motion to stay arbitration is GRANTED, and Uber's cross-motion to compel arbitration is DENIED. Likewise, in light of the Court's denial of Uber's cross-motion to compel, Uber's cross-motion to stay Brown's motion for summary judgment is also DENIED.
II. THE MOTION
In support of her motion for summary judgment, Brown submits a copy of the transcript of her examination under oath. Brown testified that she was a rear-seat passenger in Almont's vehicle. The accident occurred while Almont was making a left-hand turn. Brown testified that, when she "looked up at the time of the impact," she "saw a car in front of us and my driver slam on the brakes." [NYSCEF Doc. 13, at 15:8-11] Almont's vehicle struck the rear of the vehicle in front. Brown testified that she did not see the other vehicle prior to the impact and was only alerted to look up when another passenger in the front passenger seat "screamed to the driver to step on his brakes." [ Id. at 40:16-22] Brown testified that she was unable to estimate how fast Almont was driving when the accident occurred. Brown also testified that she did not recall whether she was wearing a seatbelt.
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issues of fact from the case." Winegrad v. NY Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Upon such a showing, the burden then shifts to the nonmovant to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v. Metro. Museum of Art, 27 A.D.3d 227, 228 (1st Dep't 2006).
A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. Fernandez v. Ortiz, 183 A.D.3d 443 (1st Dep't 2020). Such a plaintiff, however, is not required to establish that a defendant's conduct was the sole proximate cause of the accident. Simmons v. Bergh, 192 A.D.3d 547 (1st Dep't 2021). Nor is such a plaintiff required to demonstrate the absence of fault on his or her own part. Id. (citing Rodriguez v. City of NY, 31 N.Y.3d 312 (2018)). The issue of a plaintiff's comparative negligence may, however, be decided in the context of a summary judgment motion where the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence. Cui v. Hussain, 207 A.D.3d 788 (2d Dep't 2022). Additionally, while an innocent passenger who cannot be found at fault under any circumstance giving rise to the accident bears no culpability for its occurrence, see Oluwatayo v. Dulinayan, 142 A.D.3d 113 (1st Dep't 2016), "an innocent passenger must still establish a defendant driver's liability under traditional principles of tort liability in order to prevail on the issue of liability against that driver," Campbell v. Mincello, 184 A.D.3d 412 (1st Dep't 2020).
It is well settled that "[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate, nonnegligent explanation for the accident." Urena v. GVC Ltd., 160 A.D.3d 467, 467 (1st Dep't 2018) (quoting Matos v. Sanchez, 147 A.D.3d 585, 586 (1st Dep't 2017)); Santos v. Booth, 126 A.D.3d 506, 506 (1st Dep't 2015); Woodley v. Ramirez, 25 A.D.3d 451, 452 (1st Dep't 2006). Under New York Vehicle and Traffic Law (" VTL ") § 1129(a), "a driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and traffic upon the condition of the highway." In other words, a driver must maintain a safe distance between his vehicle and the one in front of her. A violation of VTL § 1129(a) is prima facie evidence of negligence, and "[t]his rule has been applied when the front vehicle stops suddenly in slow-moving traffic." Rodriguez v. Budget Rent-A-Car Sys., Inc., 44 A.D.3d 216, 223-24 (1st Dep't 2007) (quoting Johnson v. Phillips, 261 A.D.2d 269, 271 (1st Dep't 1999)); Mascitti v. Greene, 250 A.D.2d 821, 822 (2d Dep't 1998). In a rear-end collision, there is a presumption of non-negligence of the driver of the lead vehicle. See Soto-Maroquin v. Mellet, 63 A.D.3d 449, 450 (1st Dep't 2009).
Here, Brown has demonstrated a prima facie case of negligence against Almont by testifying that he struck the rear of the vehicle in front of his own. Brown has also demonstrated, prima facie, that she was an innocent passenger, and dismissal of the affirmative defenses alleging her comparative negligence is therefore appropriate.
To be clear, the affirmative defenses alleging Brown's comparative negligence are distinct from any affirmative defenses based on her failure to wear a seatbelt, as to which Brown's testimony does not create a prima facie case for dismissal.
Almont, in turn, fails to come forward with a non-negligent explanation for the accident and thus fails to raise a material issue of fact mandating denial of the motion. In opposition to the motion, Almont submits his affidavit, in which he avers that he was approximately 15 feet behind another vehicle in the left turn lane on Second Avenue and traveling approximately 15 miles per hour when the lead vehicle suddenly and without warning slammed on its brakes. Almont avers that he immediately applied his vehicle's brakes but was unable to stop prior to lightly contacting the rear of the lead vehicle. While Almont argues that the lead vehicle's sudden, unexplained stop creates a question of fact, First Department caselaw is clear that a claim by the rear driver that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the rear driver. Ly Giap v. Hathi Son Pham, 159 A.D.3d 484, 485 (1st Dep't 2018); Bajrami v. Twinkle Cab Corp., 147 A.D.3d 649 (1st Dep't 2017); Santos, 126 A.D.3d at 506; Soto-Maroquin, 63 A.D.3d at 450; Woodley, 25 A.D.3d at 452; see also Earl v. Hill, 2021 NY Slip Op. 06948 (1st Dep't Dec. 14, 2021). The rule that a rear driver is obligated to maintain a safe distance between her vehicle and the vehicle in front of her "imposes on [her] a duty to be aware of traffic conditions, including vehicle stoppages." Johnson v. Phillips, 261 A.D.2d 269, 271 (1st Dep't 1999). As the court observed in Animah v. Agyei, 63 Misc.3d 783, 790 (NY Sup. Ct. Bronx Cty. 2019) (Higgitt, J.):
The expectation of a driver operating a motor vehicle on a highway with normal conditions-that traffic will continue unimpeded-is not shared by one operating a motor vehicle on a local public municipal roadway, particularly within the City of New York. The operator of a motor vehicle traveling on a local public roadway within the City of New York must anticipate a variety of events, including a sudden stop by a vehicle in front of the operator's vehicle. Put simply, sudden stops on local public roadways within the City of New York are immanently foreseeable, and the operator of a vehicle travelling on such a roadway should therefore expect that the flow of traffic will be interrupted.
Thus, because this accident occurred on a New York City street, Almont should have anticipated sudden stops, such as the one that he claims caused the accident. Almont's assertion of a sudden-stop defense is therefore insufficient to preclude summary judgment against him on the issue of liability.
Further, neither Almont nor Uber has raised a material issue of fact as to Brown's own liability and status as an innocent passenger. Mere speculation, such as that offered by both defendants, is insufficient to raise an issue of fact to defeat the motion as directed to the affirmative defense. See Cabrera v. Rodriguez, 72 A.D.3d 553, 554 (1st Dep't 2010) (citing Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276, 281-82 (1978)); Garcia v. Verizon NY, Inc., 10 A.D.3d 339, 340 (1st Dep't 2004).
Moreover, contrary to Almont's and Uber's contentions, Brown's motion for summary judgment is not premature. A summary-judgment motion as to liability is not, as a rule, premature where the parties to the accident have submitted affidavits. Salodkaya v City of NY, 193 A.D.3d 604 (1st Dep't 2021). Here, Almont submits his affidavit attesting to his version of how the accident occurred. Additionally, it is well settled that "[t]he mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny such a motion." Downey v. Mazzioli, 137 A.D.3d 498, 499 (1st Dep't 2016) (internal quotation marks and citation omitted); Cabrera, 72 A.D.3d at 554 (citing Alvord & Swift, 46 N.Y.2d at 281-82); Garcia, 10 A.D.3d at 340. Thus, the mere hope of discovering some evidence that might exonerate Almont from liability through the depositions of the parties (even though Brown has already been questioned under oath and Almont has presented his version of events through an affidavit, and there are no other parties to this action besides Uber, who was not present) is an insufficient basis on which to deny Brown's motion.
Brown has failed, however, to demonstrate a prima facie case of liability against Uber. In the motion, Brown seeks summary judgment against Uber solely on the ground that it owned the Almont vehicle involved in the accident. [NYSCEF Doc. 11, ¶ 8] But Brown makes that assertion in an attorney affirmation without any evidentiary support whatsoever. [ Id. ] Also, tellingly, nowhere in her Complaint does Brown allege that Uber owned the vehicle; rather, she alleges that Almont owned the vehicle. [ Id. Doc. 12, ¶¶ 9, 11-12] Accordingly, Brown's motion must be denied as to Uber without even considering the sufficiency of Uber's opposition. Fiallos v. NY Univ. Hosp., 85 A.D.3d 678 (1st Dep't 2011).
In her Complaint, Brown alleges that Almont was employed by Uber, but, again, she does not seek summary judgment against Uber on the basis of respondeat superior liability. [ See NYSCEF Doc. 12, ¶¶ 17-21]
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the movant was not addressed by the Court, it is hereby denied.
Accordingly, it is hereby
ORDERED that plaintiff MELANIE BROWN's (" Brown ") motion (Seq. No. 1) seeking an order, pursuant to CPLR 3212, granting her summary judgment against defendant JUAN ALMONT (" Almont ") and defendant UBER TECHNOLOGIES, INC. (" Uber ") on the issue of liability and striking their affirmative defenses of comparative negligence is GRANTED only to the extent of (1) finding Almont liable for the underlying accident, (2) finding Brown to be an innocent passenger not liable for the underlying accident, and (3) dismissing Almont's and Uber's affirmative defenses alleging Brown's comparative or contributory negligence; and it is further
ORDERED that Brown's motion (Seq. No. 1) is otherwise DENIED; and it is further
ORDERED that Uber's cross-motion (Seq. No. 1) seeking an order staying Brown's motion for summary judgment in light of Uber's intent to arbitrate Brown's claims is DENIED; and it is further
ORDERED that Brown's cross-motion (Seq. No. 1) seeking an order staying arbitration pursuant to CPLR § 7503(c) is GRANTED; and it is further
ORDERED that Uber's cross-motion (Seq. No. 1) seeking an order compelling arbitration pursuant to CPLR § 7503(c) is DENIED; and it is further
ORDERED that the Clerk shall mark the motion and cross-motions (Seq. No. 1) decided in all court records.
This constitutes the Decision and Order of the Court.