Opinion
Index No. 515746/2018
11-30-2023
AMY DIAZ, Plaintiff, v. SAJID MAHMOOD, UBER TECHNOLOGIES INC. and MANUEL MARTE, Defendants.
Unpublished Opinion
At IAS Part 99 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse located at 360 Adams Street, Brooklyn, NY 11201, on the 30th day of November 2023.
MOTION IN LIMINE DECISION AND ORDER
MONTELIONE, RICHARD J., J.
After oral argument, the following papers were read on this motion pursuant to CPLR 2219(a):
Papers
NYSCEF DOC. #
Defendant Uber Technologies Inc.'s various Motions in Limie; Motion to Quash...........
150-179
Plaintiff Diaz's Answering/Opposing/Affirmations/Affidavits/Exhibits..........................................
180-197
Reply Affirmations/Affidavits/Exhibits...............................................................
Other.......................................................................................................
After reviewing the various in limine motions, opposition thereto, hearing oral argument on the record on November 30, 2023, and after due deliberation, the court makes the following determinations:
MS#7
NYSCEF 150. MOTION IN LIMINE - defendant Uber Technologies Inc. ("Uber") seeks exclusion of any non-precedential court or administrative rulings (NYSCEF 150). j
OPPOSITION: plaintiff argues, inter alia, that the motion is premature and deprives her of the ability to present a full case, that case law only applies to the "preclusive effect" of the findings or decisions.
DETERMINATION: Motion to preclude GRANTED because determination of any non- precedential court or administrative rulings are not relevant. See Uy v. A. Hussein, 186 A.D.3d 1567, 1569, 131 N.Y.S.3d 70, 2020 NY Slip Op 05080, 1, 2020 WL 5648396 [2d Dept 2020]:
Uber correctly contends that the decision of the appeal board was not entitled to preclusive effect in this action. With exceptions not applicable here, Labor Law § 623 (2) provides that '[n]o finding of fact or law contained in a decision rendered pursuant to [Labor Law article 18] by ... the appeal board ... shall preclude the litigation of any issue of fact or law in any subsequent action.' Thus, pursuant to statute, the appeal board decision cannot be given collateral estoppel effect in this action (see id.; Matter of Lewis v New York State Div. of Human Rights, 163 A.D.3d 818, 820 [2018]; Derrick v American Inti. Group, Inc., 126 A.D.3d 576 [2015]).
The court further rejects the argument that the determination of an administrative body does not preclude the introduction of such determination at trial. This would be incongruent with appellate decisions that specifically hold that such determination is not to be considered.
MS#8.
NYSCEF 151. MOTION IN LIMINE - defendant Uber Technologies Inc. seeks the exclusion of any and all evidence, testimony, and argument that Uber owed plaintiff a heightened duty of care owed by common carriers.
OPPOSITION: The plaintiff argues, inter alia, that defendant Uber misapplied the law as it pertains to common carriers in New York State.
DETERMINATION: Motion to exclude argument or jury charge regarding defendant Uber owing a heightened duty of care owed by common carriers is GRANTED. Liability has already been established as to defendant Sajid Mahmood. If defendant Mahmood is found by the jury to be an employee or agent of Uber, Uber shall be found vicariously liable because clearly the services rendered would be considered "within the scope of employment." i.e. an accident occurring while driving a paying passenger to a requested destination. See Alkhabbaz v Best, 176 A.D.3d 661, 662, 107 N.Y.S.3d 684, 685, 2019 NY Slip Op 07043, 2019 WL 4849520 [2d Dept 2019]:
'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' (Davis v. Larhette, 39 A.D.3d 693, 694, 834 N.Y.S.2d 280; see Beres v. Terranera, 153 A.D.3d 483, 486, 60 N.Y.S.3d 207; Pinto v. Tenenbaum, 105 A.D.3d 930, 931, 963 N.Y.S.2d 699).
Moreover, mention of "common carrier" at this stage of the litigation would also be prejudicial because this status, if applicable, is directly related to either the employment or agency relationship between the two defendants as a matter of law.
MS#9
NYSCEF 152. MOTION IN LIMINE - seeking exclusion of any undisclosed evidence and testimony of previously unidentified witnesses.
OPPOSITION: General opposition.
DECISION: Denied without prejudice to renew at the appropriate time at trial. This court will not render an advisory opinion. There is no legal basis for requesting the relief because there is no showing that plaintiff will present evidence that should otherwise have been disclosed.
MS#10
NYSCEF 153 MOTION IN LIMINE - restricting all witnesses that are not parties to the action from entering the courtroom until they are called to testify.
OPPOSITION: General opposition.
DECISION: Reserve decision. There has already been a determination of liability and there appears to be no eye-witness testimony needed regarding the accident. Assuming testimony from witnesses regarding employment or agency status, counsel may move the court for specific rulings when a witness in the public area of the courtroom is brought to the court's attention or counsel may ask if any of a party's witnesses are in court. Expert witnesses who are not fact witnesses will not be excluded if they assist respective counsel during the course of the trial. See Perry v Kone, Inc., 147 A.D.3d 1091, 49 N.Y.S.3d 696, 2017 NY Slip Op 01395, 2017 WL 690607 [2d Dept 2017], Ms# 11
NYSCEF 154. MOTION IN LIMINE - requiring that all parties provide advance notice of a witness' identity prior to the intended appearance of said witness.
OPPOSITION: General opposition.
Decision: GRANTED to the extent that all parties shall provide a complete list of witnesses to all other parties and shall provide the anticipated sequence of testimony forthwith. The court will use its discretion in changing the sequence upon good cause given scheduling or other issues regarding the witnesses. Regardless of who calls a witness to testify, in order to expedite the proceedings, the court suggests the parties enter into a stipulation whereby the cross examination, of any witness may go beyond the direct examination if the questions address an issue that is relevant to the prosecution or the defense of the case so as to avoid re-calling a witness to offer testimony in defense or rebuttal. If the party called to testify has an adverse interest to the party calling the witness to testify, leading questions may be asked of the witness.
MS#12
NYSCEF 155. MOTION IN LIMINE - to preclude testimony related to finances, profits, losses, or economic status of Uber. 1. All evidence of Uber's financial condition or profits be excluded from evidence; 2. All counsel be instructed not to comment on such evidence or make any attempt to introduce testimony or evidence regarding the same or refer to the financial condition or profits of Uber; 3. All counsel informs all of their witnesses not to make any reference or comment to such evidence.
OPPOSITION: General opposition.
Decision: GRANTED. 1. All evidence of Uber's financial condition or profits is excluded from evidence; 2. All counsel are instructed not to comment on such evidence or make any attempt to introduce testimony or evidence regarding the same or refer to the financial condition or profits of Uber; 3. All counsel shall inform all of their witnesses not to make any reference or comment to such evidence.
MS# 13
NYSCEF 156. MOTION IN LIMINE - seeking prohibition of any evidence related to similar or same occurrences, claims, or lawsuits against Uber.
OPPOSITION: General opposition.
Decision: GRANTED. No evidence of other occurrences or accidents or lawsuits shall be mentioned during the course of the trial.
MS#14
NYSCEF 157. MOTION IN LIMINE - seeking preclusion of prejudicial terms.
1) Referring to Uber as a "cab" or "taxi" company, a ridesharing service, or a transportation service. GRANTED.
2) Describing Uber as a "carrier;" GRANTED.
3) Describing the transportation provided to riders as "driving services." DENIED. There is no question of fact that the transportation provided by drivers using the Uber App. is "driving services" from point of pick-up to point of destination. Whether defendant Mahmood was an employee of Uber providing driving services is a factual issue to be determined by the jury.
4) Any use of the term "Uber driver" or variation of that term thereof. DENIED. This term is in the vernacular. Counsel may argue that the title "Uber driver" does not determine the employment or agency status of the driver. Any suggestion to the contrary will result in a curative instruction to the jury.
5) Reference, testimony, or attempts to introduce evidence of an "Uber car" "Uber car transportation," (as alleged in the Complaint) or "Uber vehicle" because Uber did not own, lease, manage, or maintain Sajid Mahmood (hereinafter "Mahmood")'s vehicle. DENIED. The description is within the vernacular. Counsel may argue that the title "Uber driver" does not determine the employment or agency status of the driver. Any suggestion to the contrary will result in a curative instruction to the jury.
6) Reference to Uber "employing" Mahmood. DENIED in part and GRANTED in part. Plaintiff's attorney may say allegedly "employed" or "the evidence will show" employment or agency. No expert opinion will be allowed as to whether or not the defendant driver is an employee or agent of Uber because this is a factual determination to be made by the jury and the expert may not decide the issue which by the nature of the expert's testimony must be both | factual and legal. The jury will be given the law by the court and the jury will apply the facts to the law.
7) Reference, testimony, or attempts to introduce evidence to the number of "Uber drivers" on the road at any given time, in New York or in any other jurisdiction. GRANTED to the extent that prior to the introduction of evidence through testimony, plaintiffs counsel must make an offer of proof as to how this information is relevant in the jury's determination as to whether the defendant Mahmood was an employee or agent of Uber.
8) Reference, testimony, or attempts to introduce evidence that Mahmood or other users of the Driver App were or are "Uber Driver(s)." DENIED. See MS# 14, ¶ 4.
9) Reference, testimony, or attempts to introduce evidence of Mahmood's earnings or income as an "Uber driver." GRANTED in part and DENIED in part. Any documentary evidence in the I form of tax forms, income tax, etc. which may reflect upon the employee/employer status of defendant Mahmood is permissible; questions or evidence only involving earnings or income are not permissible. Any other issues must be raised by objections during the course of the trial.
10) Describing the Uber App software licensing process as "applying for" or suggesting that an "application" by users was necessary to secure a license to gain access to the Uber App or Driver App. DENIED as there is an insufficient showing of the legal basis for the objection and the court will not speculate. This denial does not preclude defendant Uber from raising an appropriate objection during the course of the trial. This denial does not preclude defendant Uber from arguing or contending that the licensing process is not an application process.
11) Describing a user's or Plaintiffs request for a ride made through the Rider App as "Requesting an Uber" (DENIED), "calling an Uber" (DENIED), "taking an Uber" (DENIED), "hailing an Uber" (GRANTED as "hailing" implies on street request which is not permissible) or "dispatching an Uber" (DENIED as there is an insufficient showing of the legal basis for the objection and the court will not speculate. This denial does not preclude arguing or contending that Uber does not "dispatch").
12) Describing a user or Plaintiff "paying Uber" for any trip, including but not limited to the subject trip provided by independent third-party transportation provider, Mahmood. DENIED. There is no question of fact that Uber is paid, deducts part of the payment for itself, and forwards the remainder to the driver.
13) Reference, testimony, or attempts to introduce evidence of defendant Mahmood being referenced as an employee, agent, apparent agent, and/or legal partner of Uber. Decision RESERVED. Specific objections may be made during the course of the trial. Plaintiff may argue that the "evidence will show" or "our contention is" that defendant Mahmood is an employee or agent but may not argue that defendant Mahmood is a "legal partner of Uber" as this is confusing unless an offer of proof is made as to why this terminology is appropriate.
14) Reference, testimony, or attempts to introduce evidence that Uber dictates and/or doesn't dictate number of hours driven. Decision RESERVED. The request seeks an advisory opinion, and there is an insufficient showing of the legal basis for the objection and the court will not speculate. Depending on the development of the evidence, this may or may not be relevant.
15) Reference, testimony, or attempts to introduce evidence of any "Uber meeting." DENIED as there is an insufficient showing of the legal basis for the objection and the court will not speculate. Specific objections may be made during the course of the trial.
16) Reference, testimony, or attempts to introduce evidence of instructions and training by Uber । to Mahmood, including but not limited to "training" on how to use the Driver App. Decision