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FILED: QUEENS COUNTY CLERK 05/03/2024 10:33 AM INDEX NO. 707576/2023
NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/03/2024
EXHIBIT O
FILED: QUEENS COUNTY CLERK 05/03/2024
06/30/2023 10:33
05:09 AM
PM INDEX NO. 707576/2023
728150/2021
NYSCEF DOC. NO. 39
91 RECEIVED NYSCEF: 05/03/2024
06/30/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------X
LEONARDO DANIEL LUNA-SORIANO,
Index No.: 728150/2021
Plaintiff,
- against - ORDER WITH NOTICE OF
ENTRY
SUBRA BARUA A/K/A SUBIR BARUA,
AMERICAN UNITED TRANSPORTATION INC., and
UBER TECHNOLOGIES, INC.
Defendants.
------------------------------------X
PLEASE TAKE NOTICE, that the within is a true copy of the Order of the Honorable
Timothy J. Dufficy, dated June 29, 2023 and duly entered and filed in the office of the Clerk of
the Supreme Court, County of Queens, on June 30, 2023.
Dated: Garden City, New York
June 30, 2023
Yours, etc.,
WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP
By: /s/ Melinda Flecker
Melinda Flecker, Esq.
Attorneys for Defendant
UBER TECHNOLOGIES, INC.
666 Old Country Road, Ste. 602
Garden City, New York 11530
(516) 228-8907
File No.: 15422.01502
TO: DAVIDOFF LAW, P.C.
Attorneys for Plaintiff
108-18 Queens Blvd., Ste. 404
Forest Hills, New York 11375
(718) 268-8800
ABRAMS FENSTERMAN, LLP
Attorneys for Defendant – SUBRA BARUA A/K/A SUBIR BARUA
1 Metrotech Center, Suite 1701
Brooklyn, New York 11301
(516) 294-5200
1
284503034v.1
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NYSCEF DOC. NO. 39
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Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY 6/30/2023
PRESENT: HON. TIMOTHY J. DUFFICY PART 35
Justice
------------------------------------------------------x
LEONARDO DANIEL LUNA-SORIANO,
Plaintiff, Index No.: 728150/21
-against- Mot. Date: 3/14/23
Mot. Seq.: 3
SUBRA BARUA A/K/A SUBIR BARUA,
AMERICAN UNITED TRANSPORTATION
INC.and UBER TECHNOLOGIES, INC.
Defendants.
----------------------------------------------------------x
The following papers were read on this motion by defendant Uber Technologies, Inc.
(Uber) for an order dismissing plaintiff’s complaint, pursuant to CPLR 3211(a)(1) and
CPLR 3211(a)(7); and plaintiff’s cross-motion for an order, pursuant to CPLR 3025(b),
for leave to amend the summons and complaint to add additional parties and to amend the
caption to reflect such.
PAPERS
NUMBERED
Notice of Motion-Affs-Exhibits............................................ EF 59-76
Answering Affidavits............................................................ EF77-78
Notice of Cross-Motion-Affidavits-Exhibits........................ EF 79-87
Replying Affidavit................................................................ EF 88
Upon the foregoing papers, the motion by defendant Uber Technologies, Inc. (Uber)
and cross-motion by plaintiff are both granted, as set forth below
This is an action for personal injuries arising out of a two-car motor vehicle
accident, that occurred on April 27, 2021, at or about 69-29 Metropolitan Avenue,
Queens, New York, between the vehicle operated by plaintiff Leonardo Daniel Luna-
Soriano, and the vehicle owned and operated by defendant Subra Barua a/k/a Subir
Barua (Barua). Plaintiff, in his amended complaint filed on November 7, 2022, alleges,
inter alia, that defendant Barua was an agent of and/or employed by Uber and was acting
within the scope of his employment with Uber at the time of the accident.
The court file reflects that American United Transportation Inc. and Uber
Technologies, Inc. were added as party defendants, pursuant to a previous order of this
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NYSCEF DOC. NO. 39
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91 RECEIVED NYSCEF: 05/03/2024
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Court, which granted plaintiff’s motion to amend his original complaint (see NYSCEF
Doc. No. 42).
Uber now moves to dismiss, arguing that the record demonstrates Barua was not
utilizing the driver version of the Uber App at the time of the accident. Plaintiff opposes,
and cross-moves for an order granting leave to serve another Amended Summons and
Amended Verified Complaint to include Lyft, Inc., as an additional party defendant, and
to amend the caption to reflect such.
In support of its motion, Uber submits documentary evidence establishing that, at
the time of the accident, Barua was not logged onto the Uber app and Uber did not own
the vehilce Barua was driving. In opposition, the plaintiff fails to raise an issue of fact.
As such, Uber’s motion to dismiss is granted.
In regards to the cross-motion by plaintiff seeking an order, pursuant to CPLR
3025(b), for leave to amend the summons and complaint to add Lyft, Inc, as a party
defendant, and to amend the caption accordingly, is granted.
It is well settled law that motions for leave to amend the pleadings are to be freely
granted, as long as there is no prejudice or surprise to the adversary (CPLR 3025(b);
Wirhouski v Armoured Car & Courier Serv., 221 AD2d 523 [2d Dept 1995]); and the
proposed amendment is not “palpably insufficient” or “patently devoid of merit”
(SheilaProps., Inc. v A Real Good Plumber, Inc., 59 AD3d 424 [2d Dept 2009]).
In support of the cross-motion, the plaintiff submits, in sum and substance, that he
recently obtained information which reveals that Barua was actually using an application
platform owned, controlled, managed and supervised by Lyft , Inc., at the
time of the accident. There is also evidence in the record that a related lawsuit was
brought by a passenger, who was in Barua’s vehicle at the time of the accident, wherein
Lyft, Inc. was named, as a defendant, and had served an Answer (Baptiste v Lyft, Inc..
Sup. Ct. Queens County, Index No, 726586/2021).
Based upon the foregoing, plaintiff’s cross-motion to amend the complaint to
include Lyft, Inc., as a party defendant, and to amend the caption to reflect such is
granted.
Accordingly, it is
ORDERED that the motion to dismiss by Uber Technologies, Inc. is granted; and it
is further
ORDERED that plaintiff’s complaint and all cross-claims against Uber
Technologies Inc. are dismissed; and it is further
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NYSCEF DOC. NO. 39
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91 RECEIVED NYSCEF: 05/03/2024
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ORDERED that defendant Uber Technologies, Inc. shall be stricken from the
caption and the caption shall be amended to reflect such; and it is further
ORDERED that plaintiff’s cross-motion to amend the complaint to add Lyft, Inc.,
as a party defendant, in this action, is granted; and it is further
ORDERED that the amended title of the action shall be:
SUPREME COURT THE STATE OF NEW YORK
COUNTY OF QUEENS
----------------------------------------------------------x
LEONARDO DANIEL LUNA-SORIANO,
Plaintiff, Index No.: 728150/21
-against-
SUBRA BARUA A/K/A SUBIR BARUA,
AMERICAN UNITED TRANSPORTATION
INC. and LYFT INC.,
Defendants.
------------------------------------------------------------x
and it is further
ORDERED that the plaintiff shall serve and file a Second Amended Summons
and Second Amended Verified Complaint, in the form proposed in the moving papers,
striking out Uber Technologies Inc. from the caption and the body, within thirty (30)
days from the date that this Order appears in the minutes of the Office of the Queens
County Clerk–NYSCEF system, upon the remaining defendants, and added party
defendant Lyft, Inc; and it is further
ORDERED that a copy of this Order with Notice of Entry be served on all
parties to the action, and the Clerk of Queens County, who is directed to amend the
caption upon receipt of service.
Dated: June 29, 2023
TIMOTHY J. DUFFICY, J.S.C.
6/30/2023
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FILED: QUEENS COUNTY CLERK 05/03/2024 10:33 AM INDEX NO. 707576/2023 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/03/2024 EXHIBIT O FILED: QUEENS COUNTY CLERK 05/03/2024 06/30/2023 10:33 05:09 AM PM INDEX NO. 707576/2023 728150/2021 NYSCEF DOC. NO. 39 91 RECEIVED NYSCEF: 05/03/2024 06/30/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------X LEONARDO DANIEL LUNA-SORIANO, Index No.: 728150/2021 Plaintiff, - against - ORDER WITH NOTICE OF ENTRY SUBRA BARUA A/K/A SUBIR BARUA, AMERICAN UNITED TRANSPORTATION INC., and UBER TECHNOLOGIES, INC. Defendants. ------------------------------------X PLEASE TAKE NOTICE, that the within is a true copy of the Order of the Honorable Timothy J. Dufficy, dated June 29, 2023 and duly entered and filed in the office of the Clerk of the Supreme Court, County of Queens, on June 30, 2023. Dated: Garden City, New York June 30, 2023 Yours, etc., WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP By: /s/ Melinda Flecker Melinda Flecker, Esq. Attorneys for Defendant UBER TECHNOLOGIES, INC. 666 Old Country Road, Ste. 602 Garden City, New York 11530 (516) 228-8907 File No.: 15422.01502 TO: DAVIDOFF LAW, P.C. Attorneys for Plaintiff 108-18 Queens Blvd., Ste. 404 Forest Hills, New York 11375 (718) 268-8800 ABRAMS FENSTERMAN, LLP Attorneys for Defendant – SUBRA BARUA A/K/A SUBIR BARUA 1 Metrotech Center, Suite 1701 Brooklyn, New York 11301 (516) 294-5200 1 284503034v.1 1 of 4 FILED: QUEENS COUNTY CLERK 05/03/2024 06/30/2023 10:33 09:30 AM 05:09 PM INDEX NO. 707576/2023 728150/2021 NYSCEF DOC. NO. 39 90 91 RECEIVED NYSCEF: 05/03/2024 06/30/2023 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY 6/30/2023 PRESENT: HON. TIMOTHY J. DUFFICY PART 35 Justice ------------------------------------------------------x LEONARDO DANIEL LUNA-SORIANO, Plaintiff, Index No.: 728150/21 -against- Mot. Date: 3/14/23 Mot. Seq.: 3 SUBRA BARUA A/K/A SUBIR BARUA, AMERICAN UNITED TRANSPORTATION INC.and UBER TECHNOLOGIES, INC. Defendants. ----------------------------------------------------------x The following papers were read on this motion by defendant Uber Technologies, Inc. (Uber) for an order dismissing plaintiff’s complaint, pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7); and plaintiff’s cross-motion for an order, pursuant to CPLR 3025(b), for leave to amend the summons and complaint to add additional parties and to amend the caption to reflect such. PAPERS NUMBERED Notice of Motion-Affs-Exhibits............................................ EF 59-76 Answering Affidavits............................................................ EF77-78 Notice of Cross-Motion-Affidavits-Exhibits........................ EF 79-87 Replying Affidavit................................................................ EF 88 Upon the foregoing papers, the motion by defendant Uber Technologies, Inc. (Uber) and cross-motion by plaintiff are both granted, as set forth below This is an action for personal injuries arising out of a two-car motor vehicle accident, that occurred on April 27, 2021, at or about 69-29 Metropolitan Avenue, Queens, New York, between the vehicle operated by plaintiff Leonardo Daniel Luna- Soriano, and the vehicle owned and operated by defendant Subra Barua a/k/a Subir Barua (Barua). Plaintiff, in his amended complaint filed on November 7, 2022, alleges, inter alia, that defendant Barua was an agent of and/or employed by Uber and was acting within the scope of his employment with Uber at the time of the accident. The court file reflects that American United Transportation Inc. and Uber Technologies, Inc. were added as party defendants, pursuant to a previous order of this 1 of 4 2 3 FILED: QUEENS COUNTY CLERK 05/03/2024 06/30/2023 10:33 09:30 AM 05:09 PM INDEX NO. 707576/2023 728150/2021 NYSCEF DOC. NO. 39 90 91 RECEIVED NYSCEF: 05/03/2024 06/30/2023 Court, which granted plaintiff’s motion to amend his original complaint (see NYSCEF Doc. No. 42). Uber now moves to dismiss, arguing that the record demonstrates Barua was not utilizing the driver version of the Uber App at the time of the accident. Plaintiff opposes, and cross-moves for an order granting leave to serve another Amended Summons and Amended Verified Complaint to include Lyft, Inc., as an additional party defendant, and to amend the caption to reflect such. In support of its motion, Uber submits documentary evidence establishing that, at the time of the accident, Barua was not logged onto the Uber app and Uber did not own the vehilce Barua was driving. In opposition, the plaintiff fails to raise an issue of fact. As such, Uber’s motion to dismiss is granted. In regards to the cross-motion by plaintiff seeking an order, pursuant to CPLR 3025(b), for leave to amend the summons and complaint to add Lyft, Inc, as a party defendant, and to amend the caption accordingly, is granted. It is well settled law that motions for leave to amend the pleadings are to be freely granted, as long as there is no prejudice or surprise to the adversary (CPLR 3025(b); Wirhouski v Armoured Car & Courier Serv., 221 AD2d 523 [2d Dept 1995]); and the proposed amendment is not “palpably insufficient” or “patently devoid of merit” (SheilaProps., Inc. v A Real Good Plumber, Inc., 59 AD3d 424 [2d Dept 2009]). In support of the cross-motion, the plaintiff submits, in sum and substance, that he recently obtained information which reveals that Barua was actually using an application platform owned, controlled, managed and supervised by Lyft , Inc., at the time of the accident. There is also evidence in the record that a related lawsuit was brought by a passenger, who was in Barua’s vehicle at the time of the accident, wherein Lyft, Inc. was named, as a defendant, and had served an Answer (Baptiste v Lyft, Inc.. Sup. Ct. Queens County, Index No, 726586/2021). Based upon the foregoing, plaintiff’s cross-motion to amend the complaint to include Lyft, Inc., as a party defendant, and to amend the caption to reflect such is granted. Accordingly, it is ORDERED that the motion to dismiss by Uber Technologies, Inc. is granted; and it is further ORDERED that plaintiff’s complaint and all cross-claims against Uber Technologies Inc. are dismissed; and it is further 2 of 4 3 3 FILED: QUEENS COUNTY CLERK 05/03/2024 06/30/2023 10:33 09:30 AM 05:09 PM INDEX NO. 707576/2023 728150/2021 NYSCEF DOC. NO. 39 90 91 RECEIVED NYSCEF: 05/03/2024 06/30/2023 ORDERED that defendant Uber Technologies, Inc. shall be stricken from the caption and the caption shall be amended to reflect such; and it is further ORDERED that plaintiff’s cross-motion to amend the complaint to add Lyft, Inc., as a party defendant, in this action, is granted; and it is further ORDERED that the amended title of the action shall be: SUPREME COURT THE STATE OF NEW YORK COUNTY OF QUEENS ----------------------------------------------------------x LEONARDO DANIEL LUNA-SORIANO, Plaintiff, Index No.: 728150/21 -against- SUBRA BARUA A/K/A SUBIR BARUA, AMERICAN UNITED TRANSPORTATION INC. and LYFT INC., Defendants. ------------------------------------------------------------x and it is further ORDERED that the plaintiff shall serve and file a Second Amended Summons and Second Amended Verified Complaint, in the form proposed in the moving papers, striking out Uber Technologies Inc. from the caption and the body, within thirty (30) days from the date that this Order appears in the minutes of the Office of the Queens County Clerk–NYSCEF system, upon the remaining defendants, and added party defendant Lyft, Inc; and it is further ORDERED that a copy of this Order with Notice of Entry be served on all parties to the action, and the Clerk of Queens County, who is directed to amend the caption upon receipt of service. Dated: June 29, 2023 TIMOTHY J. DUFFICY, J.S.C. 6/30/2023 3 of 4 4 3