Opinion
486 Index No. 33964/20E Case No. 2022-05749
09-21-2023
Emily WU, Plaintiff–Appellant, v. UBER TECHNOLOGIES, INC., Defendant–Respondent, Jerry Alvarez et al., Defendants. The Chamber of Commerce of the United States of America and the Business Council of New York State, Inc., Amici Curiae.
Kelner & Kelner, New York (Joshua D. Kelner of counsel), for appellant. Perkins Coie LLP, New York (Jacob Taber of counsel), Perkins Coie LLP, Washington DC, (Michael R. Huston of the bar of the District of Columbia, admitted pro hac vice, of counsel), for respondent. Mayer Brown LLP, Washington, DC (Andrew J. Pincus of counsel), for Amici Curiae.
Kelner & Kelner, New York (Joshua D. Kelner of counsel), for appellant.
Perkins Coie LLP, New York (Jacob Taber of counsel), Perkins Coie LLP, Washington DC, (Michael R. Huston of the bar of the District of Columbia, admitted pro hac vice, of counsel), for respondent.
Mayer Brown LLP, Washington, DC (Andrew J. Pincus of counsel), for Amici Curiae.
Renwick, P.J., Kennedy, Mendez, Rodriguez, Higgitt, JJ.
Order, Supreme Court, Bronx County (Veronica G. Hummel, J.), entered December 21, 2022, which denied plaintiff's motion to stay defendant Uber Technologies, Inc.’s demand for arbitration and to sanction Uber, and granted Uber's motion to compel arbitration, unanimously affirmed, without costs.
The court correctly determined that an agreement to arbitrate existed between plaintiff and Uber (see Brooks v. Lang, 216 A.D.3d 505, 190 N.Y.S.3d 309 [1st Dept. 2023] ). Uber established, prima facie, the existence of that agreement by submitting evidence showing that plaintiff electronically signed its January 18, 2021 updated terms of use (the terms), which included an arbitration agreement, by clicking a checkbox and button that confirmed that she reviewed and consented to the terms (see id. ; see also Mencher v. Weiss, 306 N.Y. 1, 4, 114 N.E.2d 177 [1953] ; Weissman v. Revel Tr., Inc., 217 A.D.3d 430, 190 N.Y.S.3d 46 [1st Dept. 2023] ; Kowalchuk v. Stroup, 61 A.D.3d 118, 121, 873 N.Y.S.2d 43 [1st Dept. 2009] ; State Technology Law §§ 302, 304[2] ). Plaintiff failed to raise a triable issue of fact as to the existence of an agreement to arbitrate. Plaintiff's assertion of fraud in the execution is improperly raised for the first time on appeal.
Although plaintiff disputes whether she had inquiry notice of the terms, she has not affirmatively denied actual notice (see Starke v. SquareTrade, Inc., 913 F.3d 279, 292 n. 9 [2d Cir.2019] ; Meyer v. Uber Tech., Inc., 868 F.3d 66, 76–77 [2d Cir.2017] ). Moreover, Uber established inquiry notice, as a matter of law, by submitting the email and in-application popup screen that informed plaintiff that the changes to terms affected arbitration rights and included prominent hyperlinks to the terms in font commonly understood to signify hyperlinks (see Brooks, 216 A.D.3d 505, 190 N.Y.S.3d 309 ; Weissman, 217 A.D.3d at 430–431, 190 N.Y.S.3d 46 ). Plaintiff's arguments disputing the validity of the terms and raising unconscionability must be decided by the arbitrator, because the terms contain a delegation provision that plaintiff did not specifically challenge (see Rent–A–Center, W., Inc. v. Jackson, 561 U.S. 63, 72, 130 S.Ct. 2772, 177 L.Ed.2d 403 [2010] ).
Given the foregoing, Supreme Court providently exercised its discretion in declining to sanction Uber and its employees for the sending of mass communications that were received by plaintiff directly during the pendency of the action.
We have considered plaintiff's remaining arguments and find them unavailing.