Decided on August 27, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
PAUL WOOTEN
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.

Roman Kravchenko, Melville, NY, for appellant.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to vacate an award of a master arbitrator dated March 20, 2023, which confirmed an award of an arbitrator dated January 24, 2023, denying a claim for no-fault insurance benefits, the petitioner appeals from a judgment of the Supreme Court, Nassau County (Conrad D. Singer, J.), dated January 25, 2024. The judgment, upon an order of the same court dated October 4, 2023, denying the petition, is in favor of the respondent and against the petitioner dismissing the proceeding.

ORDERED that the judgment is affirmed, without costs or disbursements.

On March 21, 2023, the petitioner, Fill Rx NY, Inc. (hereinafter Fill Rx), commenced this proceeding pursuant to CPLR article 75, inter alia, to vacate an award of a master arbitrator dated March 20, 2023 (hereinafter the March 2023 master arbitration award), confirming an arbitration award dated January 24, 2023 (hereinafter the January 2023 arbitration award), which, after a hearing, denied a claim by Fill Rx for no-fault benefits in the sum of $4,151.53 against the respondent, LM General Insurance Company (hereinafter LM General).

The January 2023 arbitration award arose out of a no-fault arbitration proceeding commenced by Fill Rx against LM General to recover the sum of $4,151.53 for pharmaceutical products Fill Rx provided to its assignor in connection with a motor vehicle accident in July 2021. The arbitrator denied Fill Rx’s claim in its entirety based on LM General’s contention that the limits of the no-fault coverage under its insurance policy had been exhausted.

Fill Rx appealed the January 2023 arbitration award to a master arbitrator, contending that the award was irrational, arbitrary and capricious, and incorrect as a matter of law. Thereafter, the master arbitrator issued the March 2023 master arbitration award, confirming the January 2023 arbitration award. By order dated October 4, 2023, the Supreme Court denied the petition, inter alia, to vacate the March 2023 master arbitration award. A judgment dated January 25, 2024, was entered upon the order in favor of LM General and against Fill Rx dismissing the proceeding.

“‘Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d 649, 650, quoting Matter of Mercury Cas. Co. v Healthmakers Med. Group, P.C., 67 AD3d 1017, 1017; see Matter of Singh v Allstate Ins. Co., 137 AD3d 1046, 1047). “‘It is not for [the court] to decide whether the [*2][master] arbitrator erred [in applying the applicable law]'” (Matter of Allstate Ins. Co. v Westchester Med. Group, M.D., 125 AD3d at 650, quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 535).

Here, Fill Rx failed to demonstrate any ground for vacating the March 2023 master arbitration award. The determination of the master arbitrator confirming the January 2023 arbitration award had evidentiary support and a rational basis (see 11 NYCRR 65-4.10[a][2]; Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth., 167 AD3d 869, 870; Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245).

Fill Rx’s remaining contentions either need not be reached in light of our determination or are improperly raised for the first time on appeal.

DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.

Decided on August 13, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
WILLIAM G. FORD
JANICE A. TAYLOR
JAMES P. MCCORMACK, JJ.

Morris Duffy Alonso Faley & Pitcoff, New York, NY (Iryna S. Krauchanka and Amanda M. Zefi of counsel), for appellant.

Davidoff Law, P.C., New York, NY (Mark Peter Getzoni of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), dated March 7, 2024. The order, after a framed-issue hearing, denied that branch of the petition which was to permanently stay arbitration and, in effect, dismissed the proceeding.

ORDERED that the order is reversed, on the law, with costs, and that branch of the petition which was to permanently stay arbitration is granted.

On August 21, 2021, the respondent, Shante D. Service, allegedly was injured when a vehicle owned and operated by proposed additional respondent Artur Nazaryan, in which Service was a passenger, was struck by another vehicle while traveling on the Van Wyck Expressway. At the time of the accident, Nazaryan was working as a driver for Lyft, Inc. (hereinafter Lyft). Service was picked up in Queens and had intended to travel to Manhattan. Nazaryan’s vehicle was insured under a policy issued by Hereford Insurance Company, which contained supplementary uninsured motorist (hereinafter SUM) coverage. Lyft carried motor vehicle insurance with the petitioner, Progressive Insurance Company (hereinafter Progressive), and its policy also included SUM coverage.

Progressive disclaimed coverage for the accident. In July 2023, Service served Progressive with a demand for arbitration. Progressive then commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of Service’s claim. In an order dated March 7, 2024, made after a framed-issue hearing, the Supreme Court denied that branch of the petition which was to permanently stay arbitration and, in effect, dismissed the proceeding. Progressive appeals.

“An insurance policy is a written contract between an insurer and an insured and is based, in essence, on contract law” (American W. Home Ins. Co. v Gjonaj Realty & Mgt. Co., 192 AD3d 28, 38). “In determining an insurance coverage dispute, a court must first look to the language of the policy” (Holtzman v Connecticut Gen. Life Ins. Co., 213 AD3d 918, 919; see Consolidated [*2]Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 221). “As with any contract, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court” (White v Continental Cas. Co., 9 NY3d 264, 267 [citation omitted]).

Here, Service was not an “insured” under the subject policy. In order to qualify as an “insured” under the SUM endorsement, the accident had to have occurred while Nazaryan was operating a “TNC vehicle,” which is defined as a vehicle “used by a transportation network company driver” who “is providing a transportation network company prearranged service” originating within the state of New York. Further, the policy provided that a “prearranged trip” “does not include transportation provided through . . . use of a taxicab, livery, luxury limousine, or other for-hire vehicle, as defined in . . . [Administrative Code § 19-502 of the City of New York]” (emphasis added). Pursuant to Administrative Code § 19-502(g), a “for-hire vehicle” includes “a motor vehicle carrying passengers for hire in the city” (emphasis added). Since Nazaryan’s vehicle was being used to carry a passenger for hire within New York City at the time of the accident, it was being operated as a “for-hire vehicle,” rather than as a “TNC vehicle” (see Matter of Progressive Ins. Co. v Callahan, 232 AD3d 903, 905; Matter of Progressive Ins. Co. v Baby, 232 AD3d 902, 903). Thus, Service did not qualify as an “insured” under the terms of the policy.

Service’s remaining contentions are either without merit or not properly before this Court.

CHAMBERS, J.P., FORD, TAYLOR and MCCORMACK, JJ., concur.

Decided on August 6, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
COLLEEN D. DUFFY, J.P.
PAUL WOOTEN
CARL J. LANDICINO
JAMES P. MCCORMACK, JJ.

Mallilo & Grossman, Flushing, NY (Stephen M. Grossman of counsel), for appellant.

Gilbert, McGinnis & Liferiedge (Mauro Lilling Naparty LLP, Woodbury, NY [Matthew W. Naparty, Margaret E. Greco, and Glenn A. Kaminska], of counsel), for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for supplemental uninsured motorist benefits, Kerio McCormack appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated April 18, 2023. The order granted that branch of the petition which was to permanently stay arbitration and permanently stayed arbitration.

ORDERED that the order is reversed, on the law, with costs, and the matter is remitted to the Supreme Court, Kings County, for a framed-issue hearing to be conducted in accordance herewith, and a new determination thereafter of that branch of the petition which was to permanently stay arbitration.

In June 2022, the petitioner, Liberty Mutual Insurance Company (hereinafter Liberty Mutual), commenced this proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim of Kerio McCormack for supplemental uninsured motorist benefits (hereinafter SUM), on the ground that McCormack did not qualify as an insured under the SUM endorsement of the insurance policy at issue. McCormack opposed. In an order dated April 18, 2023, the Supreme Court granted that branch of the petition and permanently stayed arbitration. McCormack appeals. We reverse.

“The party seeking a stay of arbitration has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue which would justify the stay” (Matter of American Protection Ins. Co. v DeFalco, 61 AD3d 970, 972 [internal quotation marks omitted]). “Thereafter, the burden shifts to the party opposing the stay to rebut the prima facie showing” (Matter of Merchants Preferred Ins. Co. v Waldo, 125 AD3d 864, 865). “Where a triable issue of fact is raised, the Supreme Court, not the arbitrator, must determine it in a framed-issue hearing, and the appropriate procedure under such circumstances is to temporarily stay arbitration pending a determination of the issue” (Matter of Hertz Corp. v Holmes, 106 AD3d 1001, 1003; see Matter of Government Empls. Ins. Co. v Tucci, 157 AD3d 679, 680).

Here, Liberty Mutual presented evidence that McCormack did not qualify as an insured for SUM coverage. In opposition, however, McCormack demonstrated the existence of a triable issue of fact as to whether he was occupying a vehicle insured by Liberty Mutual at the time of the collision at issue and therefore would qualify as an insured (see Matter of American Protection Ins. Co. v DeFalco, 61 AD3d at 972).

Accordingly, the Supreme Court should not have granted that branch of Liberty Mutual’s petition which was to permanently stay arbitration without first conducting a framed-issue hearing to determine whether McCormack was occupying the insured vehicle such that he would constitute an insured as that term is defined in the SUM endorsement of the insurance policy at issue.

In light of our determination, McCormack’s remaining contention need not be reached.

DUFFY, J.P., WOOTEN, LANDICINO and MCCORMACK, JJ., concur.

Index No. CV-024183-24/QU

Vince A. Sabella, Esq., of Nicolini, Paradise, Ferretti & Sabella, attorneys for Plaintiff; Elena Schachner, Esq. of Nicoletti Spinner Ryan Gulino Pinter LLP, attorneys for Uber et al.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of this Motion:

Upon the foregoing cited papers, oral argument, and due deliberation, the pre-answer motion by Defendants Uber USA, LLC, Raiser, NY LLC, Raiser CA LLC, and Uber Technologies, Inc., (collectively, “Defendant Uber”), seeking to dismiss the complaint, pursuant to CPLR 3211(a)(1) and 3211 (a)(7), is DENIED.

On October 8, 2024, Plaintiff commenced this action by filing a summons and complaint, seeking to recover property damages they sustained as a result of a motor vehicle accident that occurred on Fulton Street and Utica Avenue in Kings County on January 5, 2024. On December 10, 2024, Defendant Ahmed Syed Rubel AKA Syed Ahmed (“Defendant Driver”) interposed an answer. On February 7, 2025, Defendant Uber filed the instant motion, moving to dismiss the case on the grounds that Defendant Uber was not vicariously liable for Defendant Driver’s actions as he is an independent contractor and that Defendant Uber did not owe or had no control over the vehicle involved in the accident (“the Vehicle”). Defendant Uber maintains that they are a technology company “that uses its proprietary technology to develop and maintain digital multi-sided marketplace platforms.” Ryan Aff., ¶25. In support and in pertinent part, Defendant Uber provided a certified copy of the DMV abstract of title record, a copy of Defendant Driver’s Taxi and Limousine Commission license, and a copy of Defendant Uber’s platform access agreement (essentially the contract between Defendant Driver and Defendant Uber).

In opposition, Plaintiff contends, inter alia, that Defendant Uber exerted exclusive control over Defendant Driver via its platform or app and urges the Court to deny Defendant Uber’s motion during the pre-answer and pre-discovery stage. In support and in pertinent part, [*2]Plaintiff provided an uncertified copy of the police accident report and a transcript of Defendant Driver’s recorded statements made to Plaintiff.

Defendant Driver did not respond to the motion.

“On a pre-answer motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction and the plaintiff’s allegations are accepted as true and accorded the benefit of every possible favorable inference.” See, Granada Condominium III Ass’n v. Palomino, 78 AD3d 996, 996 (2d Dept 2010).

To grant a motion to dismiss the complaint pursuant to CPLR 3211(a)(1), a defendant must submit documentary evidence that “utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law.” Id. “In order for the evidence to qualify as documentary evidence, it must be unambiguous, authentic and undeniable, such as judicial records and documents reflecting out-of-court transactions, such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable.” See, Rosenfeld v. Brody, 238 AD3d 1084, 1085 (2d Dept 2025).

With respect to CPLR 3211(a)(7), it is well settled law that a court may “freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.” See, Leon v. Martinez, 84 NY2d 83, 88 (1994) (internal quotation marks omitted). “Dismissal is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.” Pascall v. New York City Transit Authority, 230 AD3d 1246, 1248 (2d Dept 2024) (internal quotation marks omitted). “Pursuant to the doctrine of respondeat superior, an employer is vicariously liable for torts committed by an employee within the scope of employment and in furtherance of the employer’s business.” Id. (Internal quotation marks omitted). “The determination of whether an employer-employee relationship exists turns on whether the alleged employer exercises control over the results produced, or the means used to achieve the results. Control over the means is the more important consideration.” Id. (Internal quotation marks omitted). “Whether an employee was acting within the scope of his and her employment is generally a question of fact for the jury.” See, Camisa v. Rosen, 150 AD3d 809, 810-11 (2d Dept 2017). Generally, “a party who retains an independent contractor is not liable for the negligence of the independent contractor because it has no right to supervise or control the work.” See, Sultan v. 6810 Wai, Inc., 237 AD3d 773, 773 (2d Dept 2025).

Here, assuming arguendo that all the documents submitted by Defendant Uber are deemed documentary under CPLR 3211(a)(1), they failed to utterly refute the Plaintiff’s allegation that Defendant Uber was Defendant driver’s employer and/or had control over Defendant Driver’s actions. While the DMV abstract proves that Defendant Uber did not own the Vehicle and the platform access agreement explicitly defines the relationship between Defendant Uber and Defendant Driver as “independent business enterprises” (1.1 Company’s Relationship with Uber), they are not dispositive of the employer-employee relationship inquiry. See, Defendant Uber’s Motion, Exhibit I, Platform Access Agreement; See also, Hernandez v. Chefs Diet Delivery, LLC, 81 AD3d 596, 599 (2d Dept 2011) (“The fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive.”) The platform access agreement indicates that Defendant Uber exerts some control over Uber drivers. For example, the agreement has compliance protocols (2.2 Compliance), requires background checks and vehicle standards on its drivers (2.5 Background Checks and Licensing, [*3]Vehicle Standards), allows its drivers to “use, wear or display Uber’s name or logo” (2.7 Use of Uber Branded Materials), and maintains a rating system of its drivers (2.8 Ratings). See, Defendant Uber’s Motion, Exhibit I. Giving the pleading a liberal construction and accepting the Plaintiff’s allegations as true with the benefit of every possible favorable inference, the Court finds that Defendant Uber’s documentary evidence fails to utterly refute the alleged employment relationship between Defendant Uber and Defendant Driver.

In addition, the Court is unpersuaded by numerous trial court decisions and arbitration decisions provided by Defendant Uber, as the Second Department has not ruled that there is no employment relationship between Defendant Uber and its drivers as a matter of law. See, Uy v. A. Hussein, 186 AD3d 1567 (2d Dept 2020) (the court denied Uber’s summary judgment motion because of “questions of fact as to whether Hussein was acting within the scope of his alleged employment with Uber at the time of the incident.”)

In light of the foregoing, Defendant Uber’s pre-answer motion to dismiss pursuant to CPLR 3211 (a)(1) and 3211 (a)(7) is DENIED. Any relief not expressly addressed herein has nonetheless been considered and is denied. Defendant Uber’s proposed answer or affirmation in support of the motion is deemed the filing and interposition of an answer in the matter, and Defendant Uber may file a more detailed answer with the Clerk within thirty (30) days of the date of entry of this Order.

This constitutes the Decision and Order of the Court.