State Farm Mut. Auto. Ins. Co. v Rubel (2025 NY Slip Op 25186)

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.