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FILED: QUEENS COUNTY CLERK 05/03/2024 10:33 AM INDEX NO. 707576/2023
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/03/2024
EXHIBIT Y
FILED: QUEENS
BRONX COUNTY
COUNTYCLERK
CLERK12/13/2022
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12/13/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
_ ________________-- __ _______ _______--- ___ x
LUIS VARGAS, : Index No.: 815835/2021E
:
Plaintiff,
: NOTICE OF ENTRY
- against -
UBER TECHNOLOGIES, INC., UBER USA, LLC,
BARRY LIMO INC., and JOHN DOE,
.
Defendants.
. ___ ___ - --- ___ _______ ___ ------- . - . ____ ___ x
PLEASE TAKE NOTICE, that the within is a true copy of the Order of the Honorable
5th
Veronica G. Hummel, A.J.S.C. duly entered in the office of the Clerk of the Court on the day
of December, 2022.
Dated: New York, New York
December 7, 2022
Yours, etc.,
WILSON, ELSER, MOSKOWITZ, EDELMAN &
DICKER LLP
By:
Justin Bettis, Esq.
Attorneys for Defendant
UBER TECHNOLOGIES, INC.,
UBER USA, LLC,
42"d
150 E Street
New York, NY 10017
(914) 323-7000
File No.: 15422.01176
justin.bettis (dlwilsonelser.com
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TO: Mark Linder, Esq.
Harmon, Linder & Rogowsky, Esqs.
Attomeys for Plaintiff
3 Park Avenue, Suite 2300
New York, New York 10016
Ronit Z. Moskovits, Esq.
Baker, McEvoy &
Moskovits, P.C.
Attorneys for Defendant Barry Limos, Inc.
One Metrotech Center, 8th Floor
Brooklyn, New York 11201
(212) 857-8230
278118318v.1
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[FILED : BRONX COUNTY CLERK 12 / 05 / 202 2 04 : 30 PM|
NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 12/05/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX, IAS PART 31
LUIS VARGAS,
Plaintiff, Index No. 815835/2021E
-against- HON. VERONICA G. HUMMEL, A.J.S.C.
UBER TECHNOLOGIES, INC., UBER USA, LLC, Mot. Seq. No. 1
BARRY LIMO INC., and JOHN DOE,
Defendants.
In accordance with CPLR 2219(a), the decision herein is made upon consideration of all
papers filed by the parties in NYSCEF in connection with defendants UBER TECHNOLOGIES,
INC.'s and UBER USA, LLC's (together, "Uber") motion (Seq. No. 1) seeking an order, pursuant
to CPLR 321 l(a)(1) and (7), dismissing plaintiff LUIS VARGAS's ("Plaintiff') Complaint and
any and all cross-claims asserted against Uber with prejudice. For the reasons discussed below,
Uber's motion is GRANTED.
This personal-injury action arises from a motor-vehicle accident that occurred on April 30,
2021, when a vehicle driven by defendant JOHN DOE ("Doe Driver") and owned by defendant
BARRY LIMO INC. ("Barry Limo"; and, together with Doe Driver, the "Driver Defendants")
allegedly struck Plaintiff while he was riding a bicycle at or near Webster Avenue in the County
of Bronx, New York.
Plaintiff alleges, in sum and substance, that Doe Driver was operating the vehicle as an
Uber taxi when the accident occurred. Thus, according to Plaintiff, Uber is vicariously liable for
Plaintiff's injuries because Doe Driver was an agent of Uber acting within the scope of his
employment.
In support of the motion, Uber submits an affidavit of Todd Gaddis, a data science manager
for Uber since 2014. [NYSCEF Doc. 21] Mr. Gaddis explains that in order for an Uber driver to
App"
accept ride requests from Uber users, the driver must first be logged into Uber's "Driver and
"open"
in status. [ Id. ¶¶ 2, 4] Mr. Gaddis further explains that Uber captures, records, tracks, and
maintains data from each driver's use of the Driver App, including when they are logged into the
"open"
App and in status. [1d. ¶ 3] Upon a review of Uber's stored data records for Driver App
usage for the account associated with the license plate number of Doe Driver's vehicle, Mr. Gaddis
avers that that account has not been logged into the Driver App since February 17, 2019. [1d. ¶ 9,
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Ex. A] Attached to Mr. Gaddis's affidavit is a copy of Uber's internal records reviewed by Mr.
Gaddis. [Id. Ex, A] Thus, according to Mr. Gaddis, the relevant account was offline and not able
to accept user ride requests on April 30, 2021, the date of the accident. [Id. ¶ 10] Finally, Mr.
operate"
Gaddis avers that Uber did not "own, lease, maintain, control, or Doe Driver's vehicle on
the date ofthe accident. [Id. ¶ 12] There is no dispute as to this latter point, as Plaintiff's Complaint
itself alleges that Barry Limo owned the vehicle at all relevant times. [NYSCEF Doc. 1, ¶ 21 ; see
also id. ¶¶ 22, 27, 29, 31, 33, 35, 37]
motion,l
In opposing the Plaintiff treats it as a motion for summary judgment and,
accordingly, submits a Statement of Material Facts and other exhibits. Essentially the sole
argument that Plaintiff advances in opposition to the motion, however, is that it is premature, in
that depositions have not yet taken place, and Plaintiffallegedly needs to depose Mr. Gaddis "about
circumvented."
the systems used by Uber to collect and store data and how they can be [NYSCEF
Doc. 33, ¶ 18]
The Driver Defendants do not submit any opposition to the motion.
Uber moves under both CPLR 3211(a)(1) and (7). CPLR 3211(a)(1) provides that a court
evidence."
may dismiss a complaint based upon "documentary Evidence qualifies as documentary
"unambiguous,"
evidence within the meaning of CPLR 321l(a)(1) only if it is "essentially
undeniable," authenticity."
and of "undisputed VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC,
171 A.D.3d 189, 193 (1st Dep't 2019) (citation omitted).
The First Department has consistently held that affidavits do not constitute "documentary
evidence"
within the meaning of CPLR 321 l(a)(1). Bailey v. Gabrielli Truck Leasing LLC, 2022
WL 17255218, at *l (1st Dep't Nov. 29, 2022); Manglani v. City of N.Y., 209 A.D.3d 563, 563
(1st Dep't 2022); Disbrow v. Normandie Condo., 201 A.D.3d 462, 463 (1st Dep't 2022); Johnson
v. Asberry, 190 A.D.3d 491, 492 (1st Dep't 2021). Therefore, because Uber's motion is founded
on the affidavit of Mr. Gaddis and internal Uber records that do not otherwise satisfy CPLR
parties'
OnApril 26, 2022. the Court granted the request to adjourn
the motion to June 21, 2022. [NYSCEF
Doc.31]In the associated Court Notice, the Court also set a deadline
of June 10, 2022, for the submission of Plaintiff's
opposition papers, if any. Plaintiff, however, didnotfileopposition papers until the return date of June 21, 2022. [See
NYSCEF Does. 33-41] Nevertheless, that same day, the parties submitted a stipulation signed by all parties further
adjourning the return date of the motion to July 19, 2022, to allow Uber to submit reply papers. [NYSCEF Doc. 42]
Although Uber now urges that the Court not consider Plaintiff s late-filed opposition papers, in the interest of deciding
the motion on the merits. the Court choses to consider Plaintiff's opposition.
2
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321 l (a)(1) requirements of undeniability, the motion cannot be granted upon documentary
evidence pursuant to CPLR 321 l(a)(1).
CPLR 321l(a)(7) provides that a court may dismiss a complaint for failure to state a cause
of action. On a motion to dismiss brought pursuant to CPLR 321l(a)(7), a court "must afford the
pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the
plaintiff the benefit of every possible inference, and determine only whether the facts as alleged
theory."
fit within any cognizable legal Constructamax, Inc. v. Weber, 109 A.D.3d 574, 574 (2d
Dep't 2013).
In the First Department, a defendant moving pursuant to CPLR 321 l(a)(7) may rely on
extrinsic evidence to challenge the complaint:
A CPLR 321 l(a)(7) motion may be used by a defendant to test the
facial sufficiency of a pleading in two different ways. On the one
hand, the motion may be used to dispose of an action in which the
plaintiff has not stated a claim cognizable at law. On the other hand,
the motion may be used to dispose of an action in which the plaintiff
identified a cognizable cause of action but failed to assert a material
allegation necessary to support the cause of action. As to the latter,
the Court of Appeals has made clear that a defendant can submit
evidence in support of the motion attacking a well-pleaded
cognizable claim.
Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 115 A.D.3d 128, 134 (1st Dep't
2014) (citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977); Rovello v. Orofino Realty Co.,
(1976)).2
Inc., 40 N.Y.2d 633 "Where extrinsic evidence is used, [and the motion is not converted
to one for summary judgment,] the standard of review under a CPLR 3211 motion is 'whether the
one.'"
proponent ofthe pleading has a cause ofaction, not whether he has stated Biondiv. Beekman
Hill House Apartment Corp., 257 A.D.2d 76, 81 (1st Dep't 1999) (quoting Guggenheimer, 43
N.Y.2d at 275), aff'd, 94 N.Y.2d 659 (2000). "'[T]he allegations are not deemed true[, and] [t]he
motion should be granted where the essential facts have been negated beyond substantial question
submitted.'"
by the affidavits and evidentiary matter Id. (quoting Blackgold Realty Corp. v. Milne,
119 A.D.2d 512, 513 (1st Dep't 1986), aff'd, 69 N.Y.2d 719).
2 For extended discussion of the history of the use of extrinsic evidence in support of a CPLR 321 l(a)(7)
motion and the varied approaches thereto in the Appellate Departments, see John R. Higgitt, CPLR 3211[A][7]:
Demurrer or Merits-Testing Device?, 73 Albany L, Rev. 99 (2009), and David. D. Siegel & Patrick M. Conners, New
York Practice § 265 (6th ed.).
3
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The evidence submitted by Uber here negates essential facts of Plaintiff's claims against
Uber and demonstrates that Plaintiff does not have a cause of action against Uber. The evidence
demonstrates that Doe Driver was not logged into the Driver App under the account associated
with the license plate number of his vehicle on the date of the accident and, as a result, that Doe
Driver could not then have been operating the vehicle as an Uber. Thus, on the date ofthe accident,
Doe Driver could not have been operating his vehicle within the scope of his employment with
Uber (assuming, arguendo, that using the Driver App to connect with individuals seeking
transportation qualifies as being employed by Uber) and could not, therefore, be vicariously liable
for Doe Driver's negligence, if any. Further, there is no dispute here that Barry Limo, not Uber,
owned the vehicle at all relevant times. Accordingly, the motion is properly granted pursuant to
CPLR 321 l(a)(7).
Even if it were improper for the Court to consider Uber's extrinsic evidence under CPLR
321 l(a)(7), the Court may convert the motion to one for summary judgment under CPLR 3211(c).
While such conversion typically requires notice to the parties of the Court's intention to do so,
such notice is unnecessary here, because Plaintiff has already expressly treated the motion as a
summary-judgment motion and thus demonstrated that the parties are charting a course toward
summary judgment. See Herlihy v. Metro. Museum of Art, 214 A.D.2d 250, 255 (1st Dep't 1995).
Therefore, if the Court were to convert Uber's motion to a motion for summary judgment, the
Court would come to the same conclusion based on Uber's submitted evidence, namely, Mr.
Gaddis's affidavit.
As to Plaintiff's argument that granting Uber summary judgment would be premature, the
Court rejects that argument. The only reason that Plaintiff proffers for needing to depose Mr.
drivers'
Gaddis appears to be essentially that Uber's recording of its use of the Driver App could
"circumvented."
somehow have been But this is speculation and conjecture, entirely unsupported
by any evidence suggesting that Uber's records could have been circumvented by Doe Driver in
such a way as to reflect that he had not been using the Driver App when he had in fact been using
it. It is well settled that speculation and "[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
motion."
a Downey v. Mazzioli, 137 A.D.3d 498, 499 (1st Dep't 2016) (internal quotation marks
and citation omitted); 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 N.Y., Inc., 10
4
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NYSCEF DOC. NO. 49
Preview
FILED: QUEENS COUNTY CLERK 05/03/2024 10:33 AM INDEX NO. 707576/2023 NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 05/03/2024 EXHIBIT Y FILED: QUEENS BRONX COUNTY COUNTYCLERK CLERK12/13/2022 05/03/202411:57 10:33AM AM INDEX INDEXNO. NO.815835/2021E 707576/2023 NYSCEF DOC. NO. 49 50 RECEIVED NYSCEF: 05/03/2024 12/13/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX _ ________________-- __ _______ _______--- ___ x LUIS VARGAS, : Index No.: 815835/2021E : Plaintiff, : NOTICE OF ENTRY - against - UBER TECHNOLOGIES, INC., UBER USA, LLC, BARRY LIMO INC., and JOHN DOE, . Defendants. . ___ ___ - --- ___ _______ ___ ------- . - . ____ ___ x PLEASE TAKE NOTICE, that the within is a true copy of the Order of the Honorable 5th Veronica G. Hummel, A.J.S.C. duly entered in the office of the Clerk of the Court on the day of December, 2022. Dated: New York, New York December 7, 2022 Yours, etc., WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP By: Justin Bettis, Esq. Attorneys for Defendant UBER TECHNOLOGIES, INC., UBER USA, LLC, 42"d 150 E Street New York, NY 10017 (914) 323-7000 File No.: 15422.01176 justin.bettis (dlwilsonelser.com 278118318v.1 1 of 9 FILED: QUEENS BRONX COUNTY COUNTYCLERK CLERK12/13/2022 05/03/202411:57 10:33AM AM INDEX INDEXNO. NO.815835/2021E 707576/2023 NYSCEF DOC. NO. 49 50 RECEIVED NYSCEF: 05/03/2024 12/13/2022 TO: Mark Linder, Esq. Harmon, Linder & Rogowsky, Esqs. Attomeys for Plaintiff 3 Park Avenue, Suite 2300 New York, New York 10016 Ronit Z. Moskovits, Esq. Baker, McEvoy & Moskovits, P.C. Attorneys for Defendant Barry Limos, Inc. One Metrotech Center, 8th Floor Brooklyn, New York 11201 (212) 857-8230 278118318v.1 2 of 9 FILED: QUEENS BRONX COUNTY COUNTYCLERK CLERK12/13/2022 05/03/202411:57 10:33AM AM INDEX INDEXNO. NO.815835/2021E 707576/2023 NYSCEF DOC. NO. 49 50 RECEIVED INDEX NYSCEF: NO. 815835 05/03/2024 12/13/2022 /2 021E [FILED : BRONX COUNTY CLERK 12 / 05 / 202 2 04 : 30 PM| NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 12/05/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX, IAS PART 31 LUIS VARGAS, Plaintiff, Index No. 815835/2021E -against- HON. VERONICA G. HUMMEL, A.J.S.C. UBER TECHNOLOGIES, INC., UBER USA, LLC, Mot. Seq. No. 1 BARRY LIMO INC., and JOHN DOE, Defendants. In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in connection with defendants UBER TECHNOLOGIES, INC.'s and UBER USA, LLC's (together, "Uber") motion (Seq. No. 1) seeking an order, pursuant to CPLR 321 l(a)(1) and (7), dismissing plaintiff LUIS VARGAS's ("Plaintiff') Complaint and any and all cross-claims asserted against Uber with prejudice. For the reasons discussed below, Uber's motion is GRANTED. This personal-injury action arises from a motor-vehicle accident that occurred on April 30, 2021, when a vehicle driven by defendant JOHN DOE ("Doe Driver") and owned by defendant BARRY LIMO INC. ("Barry Limo"; and, together with Doe Driver, the "Driver Defendants") allegedly struck Plaintiff while he was riding a bicycle at or near Webster Avenue in the County of Bronx, New York. Plaintiff alleges, in sum and substance, that Doe Driver was operating the vehicle as an Uber taxi when the accident occurred. Thus, according to Plaintiff, Uber is vicariously liable for Plaintiff's injuries because Doe Driver was an agent of Uber acting within the scope of his employment. In support of the motion, Uber submits an affidavit of Todd Gaddis, a data science manager for Uber since 2014. [NYSCEF Doc. 21] Mr. Gaddis explains that in order for an Uber driver to App" accept ride requests from Uber users, the driver must first be logged into Uber's "Driver and "open" in status. [ Id. ¶¶ 2, 4] Mr. Gaddis further explains that Uber captures, records, tracks, and maintains data from each driver's use of the Driver App, including when they are logged into the "open" App and in status. [1d. ¶ 3] Upon a review of Uber's stored data records for Driver App usage for the account associated with the license plate number of Doe Driver's vehicle, Mr. Gaddis avers that that account has not been logged into the Driver App since February 17, 2019. [1d. ¶ 9, 1 of 6 3 of 9 FILED: QUEENS BRONX COUNTY COUNTYCLERK CLERK12/13/2022 05/03/202411:57 10:33AM AM INDEX INDEXNO. NO.815835/2021E 707576/2023 NYSCEF DOC. NO. 49 50 RECEIVED INDEX NYSCEF: NO. 12/13/2022 05/03/2024 815835/2021E FILED : BRONX COUNTY CLERK 12 /05 /2022 04 :30 PM| NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 12/05/2022 Ex. A] Attached to Mr. Gaddis's affidavit is a copy of Uber's internal records reviewed by Mr. Gaddis. [Id. Ex, A] Thus, according to Mr. Gaddis, the relevant account was offline and not able to accept user ride requests on April 30, 2021, the date of the accident. [Id. ¶ 10] Finally, Mr. operate" Gaddis avers that Uber did not "own, lease, maintain, control, or Doe Driver's vehicle on the date ofthe accident. [Id. ¶ 12] There is no dispute as to this latter point, as Plaintiff's Complaint itself alleges that Barry Limo owned the vehicle at all relevant times. [NYSCEF Doc. 1, ¶ 21 ; see also id. ¶¶ 22, 27, 29, 31, 33, 35, 37] motion,l In opposing the Plaintiff treats it as a motion for summary judgment and, accordingly, submits a Statement of Material Facts and other exhibits. Essentially the sole argument that Plaintiff advances in opposition to the motion, however, is that it is premature, in that depositions have not yet taken place, and Plaintiffallegedly needs to depose Mr. Gaddis "about circumvented." the systems used by Uber to collect and store data and how they can be [NYSCEF Doc. 33, ¶ 18] The Driver Defendants do not submit any opposition to the motion. Uber moves under both CPLR 3211(a)(1) and (7). CPLR 3211(a)(1) provides that a court evidence." may dismiss a complaint based upon "documentary Evidence qualifies as documentary "unambiguous," evidence within the meaning of CPLR 321l(a)(1) only if it is "essentially undeniable," authenticity." and of "undisputed VXI Lux Holdco S.A.R.L. v. SIC Holdings, LLC, 171 A.D.3d 189, 193 (1st Dep't 2019) (citation omitted). The First Department has consistently held that affidavits do not constitute "documentary evidence" within the meaning of CPLR 321 l(a)(1). Bailey v. Gabrielli Truck Leasing LLC, 2022 WL 17255218, at *l (1st Dep't Nov. 29, 2022); Manglani v. City of N.Y., 209 A.D.3d 563, 563 (1st Dep't 2022); Disbrow v. Normandie Condo., 201 A.D.3d 462, 463 (1st Dep't 2022); Johnson v. Asberry, 190 A.D.3d 491, 492 (1st Dep't 2021). Therefore, because Uber's motion is founded on the affidavit of Mr. Gaddis and internal Uber records that do not otherwise satisfy CPLR parties' OnApril 26, 2022. the Court granted the request to adjourn the motion to June 21, 2022. [NYSCEF Doc.31]In the associated Court Notice, the Court also set a deadline of June 10, 2022, for the submission of Plaintiff's opposition papers, if any. Plaintiff, however, didnotfileopposition papers until the return date of June 21, 2022. [See NYSCEF Does. 33-41] Nevertheless, that same day, the parties submitted a stipulation signed by all parties further adjourning the return date of the motion to July 19, 2022, to allow Uber to submit reply papers. [NYSCEF Doc. 42] Although Uber now urges that the Court not consider Plaintiff s late-filed opposition papers, in the interest of deciding the motion on the merits. the Court choses to consider Plaintiff's opposition. 2 2 of 6 4 of 9 FILED: QUEENS BRONX COUNTY COUNTYCLERK CLERK12/13/2022 05/03/202411:57 10:33AM AM INDEX INDEXNO. NO.815835/2021E 707576/2023 NYSCEF DOC. NO. 49 50 RECEIVED INDEX NYSCEF: NO. 12/13/2022 05/03/2024 815835/2021E FILED: BRONX COUNTY CLERK 12 / 05 /2 02 2 04 : 30 PMl NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 12/05/2022 321 l (a)(1) requirements of undeniability, the motion cannot be granted upon documentary evidence pursuant to CPLR 321 l(a)(1). CPLR 321l(a)(7) provides that a court may dismiss a complaint for failure to state a cause of action. On a motion to dismiss brought pursuant to CPLR 321l(a)(7), a court "must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged theory." fit within any cognizable legal Constructamax, Inc. v. Weber, 109 A.D.3d 574, 574 (2d Dep't 2013). In the First Department, a defendant moving pursuant to CPLR 321 l(a)(7) may rely on extrinsic evidence to challenge the complaint: A CPLR 321 l(a)(7) motion may be used by a defendant to test the facial sufficiency of a pleading in two different ways. On the one hand, the motion may be used to dispose of an action in which the plaintiff has not stated a claim cognizable at law. On the other hand, the motion may be used to dispose of an action in which the plaintiff identified a cognizable cause of action but failed to assert a material allegation necessary to support the cause of action. As to the latter, the Court of Appeals has made clear that a defendant can submit evidence in support of the motion attacking a well-pleaded cognizable claim. Basis Yield Alpha Fund (Master) v. Goldman Sachs Grp., Inc., 115 A.D.3d 128, 134 (1st Dep't 2014) (citing Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977); Rovello v. Orofino Realty Co., (1976)).2 Inc., 40 N.Y.2d 633 "Where extrinsic evidence is used, [and the motion is not converted to one for summary judgment,] the standard of review under a CPLR 3211 motion is 'whether the one.'" proponent ofthe pleading has a cause ofaction, not whether he has stated Biondiv. Beekman Hill House Apartment Corp., 257 A.D.2d 76, 81 (1st Dep't 1999) (quoting Guggenheimer, 43 N.Y.2d at 275), aff'd, 94 N.Y.2d 659 (2000). "'[T]he allegations are not deemed true[, and] [t]he motion should be granted where the essential facts have been negated beyond substantial question submitted.'" by the affidavits and evidentiary matter Id. (quoting Blackgold Realty Corp. v. Milne, 119 A.D.2d 512, 513 (1st Dep't 1986), aff'd, 69 N.Y.2d 719). 2 For extended discussion of the history of the use of extrinsic evidence in support of a CPLR 321 l(a)(7) motion and the varied approaches thereto in the Appellate Departments, see John R. Higgitt, CPLR 3211[A][7]: Demurrer or Merits-Testing Device?, 73 Albany L, Rev. 99 (2009), and David. D. Siegel & Patrick M. Conners, New York Practice § 265 (6th ed.). 3 3 of 6 5 of 9 FILED: QUEENS BRONX COUNTY COUNTYCLERK CLERK12/13/2022 05/03/202411:57 10:33AM AM INDEX INDEXNO. NO.815835/2021E 707576/2023 NYSCEF DOC. NO. 49 50 RECEIVED INDEX NYSCEF: NO. 12/13/2022 05/03/2024 815835/2021E |FILED: BRONX COUNTY CLERK 12 /05 /202 2 04 :30 PM) NYSCEF DOC. NO. 49 RECEIVED NYSCEF: 12/05/2022 The evidence submitted by Uber here negates essential facts of Plaintiff's claims against Uber and demonstrates that Plaintiff does not have a cause of action against Uber. The evidence demonstrates that Doe Driver was not logged into the Driver App under the account associated with the license plate number of his vehicle on the date of the accident and, as a result, that Doe Driver could not then have been operating the vehicle as an Uber. Thus, on the date ofthe accident, Doe Driver could not have been operating his vehicle within the scope of his employment with Uber (assuming, arguendo, that using the Driver App to connect with individuals seeking transportation qualifies as being employed by Uber) and could not, therefore, be vicariously liable for Doe Driver's negligence, if any. Further, there is no dispute here that Barry Limo, not Uber, owned the vehicle at all relevant times. Accordingly, the motion is properly granted pursuant to CPLR 321 l(a)(7). Even if it were improper for the Court to consider Uber's extrinsic evidence under CPLR 321 l(a)(7), the Court may convert the motion to one for summary judgment under CPLR 3211(c). While such conversion typically requires notice to the parties of the Court's intention to do so, such notice is unnecessary here, because Plaintiff has already expressly treated the motion as a summary-judgment motion and thus demonstrated that the parties are charting a course toward summary judgment. See Herlihy v. Metro. Museum of Art, 214 A.D.2d 250, 255 (1st Dep't 1995). Therefore, if the Court were to convert Uber's motion to a motion for summary judgment, the Court would come to the same conclusion based on Uber's submitted evidence, namely, Mr. Gaddis's affidavit. As to Plaintiff's argument that granting Uber summary judgment would be premature, the Court rejects that argument. The only reason that Plaintiff proffers for needing to depose Mr. drivers' Gaddis appears to be essentially that Uber's recording of its use of the Driver App could "circumvented." somehow have been But this is speculation and conjecture, entirely unsupported by any evidence suggesting that Uber's records could have been circumvented by Doe Driver in such a way as to reflect that he had not been using the Driver App when he had in fact been using it. It is well settled that speculation and "[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 motion." a Downey v. Mazzioli, 137 A.D.3d 498, 499 (1st Dep't 2016) (internal quotation marks and citation omitted); 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 N.Y., Inc., 10 4 4 of 6 6 of 9 FILED: QUEENS BRONX COUNTY COUNTYCLERK CLERK12/13/2022 05/03/202411:57 10:33AM AM INDEX INDEXNO. NO.815835/2021E 707576/2023 NYSCEF DOC. NO. 49 50 RECEIVED INDEX NYSCEF: NO. 12/13/2022 05/03/2024 815835/2021E (FILED: BRONX COUNTY CLERK 12/05/2022 04:30 PM| NYSCEF DOC. NO. 49