Supreme Court, Bronx County, April 5, 2023

Pavlounis & Sfouggatakis, LLP, Brooklyn (Andrew G. Sfouggatakis of counsel), for plaintiff.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains (Tal Z. Cushmaro of counsel), for Uber Technologies, Inc., defendant.

Law Offices of Nancy L. Isserlis, Long Island City (Nancy L. Isserlis and William J. Cariello III of counsel), for Juan Almont, defendant.

In accordance with CPLR 2219 (a), this decision is made upon consideration of all [*2]papers filed in NYSCEF (New York State Courts Electronic Filing System) in connection with motion sequence No. 1, comprising plaintiff Melanie Brown's (Brown) motion, defendant Uber Technologies, Inc.'s (Uber) two cross-motions, and Brown's cross-motion. Brown's motion seeks an order, pursuant to CPLR 3212, granting her summary judgment against defendant Juan Almont (Almont) and Uber on the issue of liability and striking their affirmative defenses of{**79 Misc 3d at 286} comparative negligence. Uber cross-moved to stay Brown's motion for summary judgment in light of Uber's intent to arbitrate Brown's claims. Brown, in turn, cross-moved to stay the arbitration pursuant to CPLR 7503 (c). Finally, Uber cross-moved once again to compel arbitration of Brown's claims and stay the action pursuant to CPLR 7503 (a).

Oral argument on the motion and cross-motions was heard before the court virtually via Microsoft Teams on March 28, 2022. For the reasons discussed below, Brown's motion is granted in part, Uber's cross-motions are denied, and Brown's cross-motion is granted.

In this action, Brown seeks compensation for alleged personal injuries suffered during a motor-vehicle accident that occurred on May 10, 2019, at 42nd Street and Second Avenue in New York, New York. Brown was a passenger in the rear seat of a vehicle driven by Almont that came into contact with another vehicle. At the time of the accident, Almont was operating his vehicle as an Uber taxi.

Brown initiated this action by the filing of a summons and complaint on July 6, 2020. (NYSCEF Doc No. 1.)

On July 22, 2021, Brown filed her instant motion for summary judgment. (NYSCEF Doc Nos. 10-13.)

On August 25, 2021, more than a year after Brown filed her complaint, Uber served on Brown a CPLR 7503 (c) notice of intention to arbitrate, dated August 11, 2021 (the arbitration notice). (NYSCEF Doc Nos. 22, 23.) The arbitration notice stated that Brown agreed to an arbitration agreement when she registered an account through the Uber rider application (the rider app) on September 13, 2014. (NYSCEF Doc No. 22.) According to the arbitration notice, the arbitration agreement provides, in relevant part:

"2. Arbitration Agreement

"By agreeing to the Terms, you agree that you are required to resolve any claim that you may have against Uber on an individual basis in arbitration, as set forth in this Arbitration Agreement. . . .

"Agreement to Binding Arbitration Between You and Uber.

"You and Uber agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time,{**79 Misc 3d at 287} whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Uber, and not in a court of law.[*3]

"You acknowledge and agree that you and Uber are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding." (Id.)

Based on this arbitration agreement, Uber requested that Brown agree to transfer this action to arbitration. Uber also noted that, pursuant to CPLR 7503 (c), Brown's failure to file an application to stay arbitration within 20 days after service of the arbitration notice would preclude her from objecting to arbitration on the basis that a valid agreement had not been made or had not been complied with.

On September 17, 2021, Uber filed its cross-motion to stay the motion for summary judgment. (NYSCEF Doc No. 19.)

On October 15, 2021, approximately 51 days after delivery of the arbitration notice, Brown filed her cross-motion to stay arbitration. (NYSCEF Doc No. 32.)

On November 15, 2021, Uber filed its cross-motion to compel arbitration. (NYSCEF Doc No. 39.) In support of its cross-motion, Uber submitted copies of the arbitration notice and its U.S. Terms of Use effective December 13, 2017 (the 2017 terms), neither of which were annexed to an authenticating affidavit or affirmation.

I. The Cross-Motions

The parties' arguments on the cross-motions to stay and to compel arbitration can be summarized as follows.

• Uber contends that Brown agreed to the arbitration agreement referred to and quoted in the arbitration notice when she created a rider app account on September 13, 2014, and further agreed to the 2017 terms "by continuing to use [the Rider] App up until and including on May 10, 2019 (the date of the subject accident)." (NYSCEF Doc No. 40 ¶ 22.) The relevant provisions of the 2017 terms are identical to the relevant provisions of the arbitration agreement quoted in the arbitration notice;^[FN1] accordingly, the court will hereinafter refer to both agreements collectively{**79 Misc 3d at 288} as the "arbitration agreement." Uber further contends that, because Brown failed to move to stay arbitration within 20 days after delivery of the arbitration notice (i.e., by Sept. 14, 2021), Brown is precluded from disputing the validity of the arbitration agreement.

• Brown contends that Uber has failed to submit any evidence—admissible or otherwise—establishing that Brown agreed to the arbitration agreement. Thus, according to Brown, her application falls within the exception to CPLR 7503 (c) articulated in Matter of Matarasso (Continental Cas. Co.) (56 NY2d 264 [1982]).

• Uber, in turn, disputes Matarasso's applicability and argues instead that the facts of this case are [*4]more aligned with Matter of Fiveco, Inc. v Haber (11 NY3d 140 [2008]).

[1] Here, there is no dispute that the arbitration notice complied with the requirements of CPLR 7503 (c), that Uber served it on Brown in compliance with section 7503 (c), and that Brown did not move to stay arbitration within the 20 days mandated by section 7503 (c). Thus, Brown is indisputably precluded from arguing that "a valid agreement was not made or has not been complied with." (CPLR 7503 [c].)

As Brown correctly points out, however, the Court of Appeals held in Matarasso that a court may consider an untimely petition to stay arbitration where "its basis is that the parties never agreed to arbitrate, as distinct from situations in which there is an arbitration agreement which is nevertheless claimed to be invalid or unenforceable because its conditions have not been complied with." (56 NY2d at 266; see also id. at 267-268 ["However, this rule barring judicial intrusion into the arbitral process operates only when an agreement to arbitrate exists. . . . (W)e cannot impute to the Legislature an intent to bind persons to the arbitral process by their mere inaction for 20 days where no agreement to arbitrate has ever been made"].) Brown's cross-motion, which effectively disputes that she agreed to the arbitration agreement insofar as Uber has failed to produce or present any evidence establishing that fact, falls squarely within the Matarasso exception. Indeed, the First{**79 Misc 3d at 289} Department recently considered a nearly identical scenario involving Uber and reached the same conclusion. (See Castro v Jem Leasing, LLC, 214 AD3d 475 [1st Dept 2023].)

Uber, for its part, misreads Fiveco. In that case, the Court of Appeals first restated and reaffirmed its holding in Matarasso. (See 11 NY3d at 144.) It next explained why the Matarasso exception was inapplicable to the facts and arguments then before the Court: "Fiveco does not assert that the parties never entered into an arbitration agreement; rather, it simply attacks the present viability of the contracts containing the agreement to arbitrate." (Id. at 145.) Fiveco lends no support, therefore, to Uber's opposition theory that because the contract relied on in the arbitration notice indisputably contains an arbitration agreement, Brown is barred from asserting the Matarasso exception. (NYSCEF Doc No. 49 ¶¶ 5-6.) That simply is not what Fiveco held and ignores the formation-versus-validity distinction on which Matarasso is based. Indeed, if such a theory were upheld, it would effectively eliminate Matarasso's exception to the preclusive effect of CPLR 7503 (c).

Both federal and New York law recognize the "fundamental principle that arbitration is a matter of contract." (AT&T Mobility LLC v Concepcion, 563 US 333, 339 [2011] [internal quotation marks and citation omitted]; accord People v Coventry First LLC, 13 NY3d 108, 113 [2009] ["However, the obligation to arbitrate depends on an agreement to arbitrate; arbitration is a matter of consent, not coercion" (internal quotation marks and citations omitted)].) Thus, "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." (AT&T Technologies, Inc. v Communications Workers, 475 US 643, 648 [1986]; accord e.g. Inland Shoe Mfg. Co. v Pervel Indus., 81 AD2d 505, 505 [1st Dept 1981] ["It is hornbook law that no one may be compelled to arbitrate unless he has agreed to do so. This is as true under the Federal Arbitration Law . . . , as it is under the law of this State"]; Matter of Brean Capital LLC v NewOak Capital LLC, 46 Misc 3d 1203[A], 2014 NY Slip Op 51838[U], *3 [Sup Ct, NY County, Dec. 22, 2014] ["(T)he applicable federal and New York law is basically the same, namely a liberal public policy in favor of arbitration, the principle that a party cannot be forced to arbitrate unless they agreed to do so by contract, and that the existence of an agreement to arbitrate is a question for a court, not the arbitrator" (citations omitted)].){**79 Misc 3d at 290}

"Accordingly, on a motion to compel or stay arbitration, a court must determine, 'in the first instance . . . whether parties have agreed to submit their disputes to arbitration and, if so, whether the disputes generally come within the scope of their arbitration agreement.' " (Degraw Constr. Group, Inc. v McGowan Bldrs., Inc., 152 AD3d 567, 569 [2d Dept 2017], quoting Sisters of St. John the Baptist, Providence Rest Convent v Geraghty Constructor, 67 NY2d 997, 998 [1986]; accord JLM Indus., Inc. v [*5]Stolt-Nielsen SA, 387 F3d 163, 169 [2d Cir 2004].) When deciding whether the parties agreed to arbitrate a particular matter, courts "apply ordinary state-law principles that govern the formation of contracts." (First Options of Chicago, Inc. v Kaplan, 514 US 938, 944 [1995].)

In New York, "[t]o form a binding contract there must be a meeting of the minds, such that there is a manifestation of mutual assent sufficiently definite to assure that the parties are truly in agreement with respect to all material terms." (Stonehill Capital Mgt. LLC v Bank of the W., 28 NY3d 439, 448 [2016] [internal quotation marks and citations omitted].) The parties' objective manifestations of assent, viewed within the totality of the surrounding circumstances, are determinative of the contract-formation question. (Id. at 448-449 [citation omitted].) Such manifestations may be expressed through a party's written or spoken words, silence, or conduct, so long as the party "intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents." (Restatement [Second] of Contracts § 19 [1], [2]; see Stonehill Capital Mgt. LLC, 28 NY3d 439.) Thus, "[t]here is no requirement that [a] writing be signed so long as there is other proof that the parties actually agreed on it." (Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291, 299 [1974] [internal quotation marks omitted].) As to arbitration agreements, under New York law, the party seeking to enforce such an agreement must "demonstrate a clear and unequivocal agreement to arbitrate." (Louis F. Burke PC v Law Off. of Christopher J. Gray, P.C., 146 AD3d 452, 452 [1st Dept 2017] [citation omitted].)

[2] Here, Uber has failed to meet its burden. In opposition to Brown's cross-motion to stay, and in support of its own cross-motion to compel, Uber submits only the arbitration notice and an unauthenticated copy of the 2017 terms. Uber makes no effort whatsoever to demonstrate through evidence: (1) the process through which Brown created a rider app account in{**79 Misc 3d at 291} September 2014 and whether it "constituted a valid clickwrap agreement putting [Brown] on inquiry notice of contract terms, including the arbitration agreement" (Castro, 214 AD3d at 476); (2) the process through which Brown was allegedly made aware of the 2017 terms and whether that process put Brown on adequate notice of the arbitration agreement; and (3) whether Brown "assented to any such agreement" (id. at 476, citing Meyer v Uber Tech., Inc., 868 F3d 66, 75, 79-80 [2d Cir 2017]; Wu v Uber Tech., Inc., 78 Misc 3d 551, 582-583, 585-586 [Sup Ct, Bronx County 2022]). Nor, as of the date of the cross-motions, has Uber yet produced any such evidence in discovery.

Accordingly, Brown's cross-motion to stay arbitration is granted, and Uber's cross-motion to compel arbitration is denied. Likewise, in light of the court's denial of Uber's cross-motion to compel, Uber's cross-motion to stay Brown's motion for summary judgment is also denied.

II. The Motion

In support of her motion for summary judgment, Brown submits a copy of the transcript of her examination under oath. Brown testified that she was a rear-seat passenger in Almont's vehicle. The accident occurred while Almont was making a left-hand turn. Brown testified that, when she "looked up at the time of the impact," she "saw a car in front of us and my driver slam on the brakes." (NYSCEF Doc No. 13 at 15, lines 8-11.) Almont's vehicle struck the rear of the vehicle in front. Brown testified that she did not see the other vehicle prior to the impact and was only alerted to look up when another passenger in the front passenger seat "screamed to the driver to step on his brakes." (Id. at 40, lines 16-22.) Brown testified that she was unable to estimate how fast Almont was driving when the accident occurred. Brown also testified that she did not recall whether she was wearing a seat belt.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) Upon such a showing, the burden then shifts to the nonmovant to "present evidentiary facts in admissible form [*6]sufficient to raise a genuine, triable issue of fact." (Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 [1st Dept 2006].)

A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that{**79 Misc 3d at 292} the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. (Fernandez v Ortiz, 183 AD3d 443 [1st Dept 2020].) Such a plaintiff, however, is not required to establish that a defendant's conduct was the sole proximate cause of the accident. (Simmons v Bergh, 192 AD3d 547 [1st Dept 2021].) Nor is such a plaintiff required to demonstrate the absence of fault on his or her own part. (Id., citing Rodriguez v City of New York, 31 NY3d 312 [2018].) The issue of a plaintiff's comparative negligence may, however, be decided in the context of a summary judgment motion where the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence. (Xiuying Cui v Hussain, 207 AD3d 788 [2d Dept 2022].) Additionally, while an innocent passenger who cannot be found at fault under any circumstance giving rise to the accident bears no culpability for its occurrence (see Oluwatayo v Dulinayan, 142 AD3d 113 [1st Dept 2016]), "an innocent passenger must still establish a defendant driver's liability under traditional principles of tort liability in order to prevail on the issue of liability against that driver." (Campbell v Mincello, 184 AD3d 412, 412 [1st Dept 2020].)

It is well settled that

"[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate, nonnegligent explanation for the accident." (Urena v GVC Ltd., 160 AD3d 467, 467 [1st Dept 2018], quoting Matos v Sanchez, 147 AD3d 585, 586 [1st Dept 2017]; Santos v Booth, 126 AD3d 506, 506 [1st Dept 2015]; Woodley v Ramirez, 25 AD3d 451, 452 [1st Dept 2006].)

Under New York Vehicle and Traffic Law § 1129 (a), "[a] driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." In other words, a driver must maintain a safe distance between his vehicle and the one in front of her. A violation of Vehicle and Traffic Law § 1129 (a) is prima facie evidence of negligence, and "[t]his rule has been applied when the front vehicle stops suddenly in slow-moving traffic." (Rodriguez v Budget Rent-A-Car Sys., Inc., 44 AD3d 216, 223-224 [1st Dept 2007], quoting Johnson v Phillips, 261 AD2d 269, 271{**79 Misc 3d at 293} [1st Dept 1999]; Mascitti v Greene, 250 AD2d 821, 822 [2d Dept 1998].) In a rear-end collision, there is a presumption of non-negligence of the driver of the lead vehicle. (See Soto-Maroquin v Mellet, 63 AD3d 449, 450 [1st Dept 2009].)

Here, Brown has demonstrated a prima facie case of negligence against Almont by testifying that he struck the rear of the vehicle in front of his own. Brown has also demonstrated, prima facie, that she was an innocent passenger, and dismissal of the affirmative defenses alleging her comparative negligence is therefore appropriate.^[FN2]

Almont, in turn, fails to come forward with a nonnegligent explanation for the accident and thus fails to raise a material issue of fact mandating denial of the motion. In opposition to the motion, Almont submits his affidavit, in which he avers that he was approximately 15 feet behind another vehicle in the left turn lane on Second Avenue and traveling approximately 15 miles per hour when the lead vehicle suddenly and without warning slammed on its brakes. Almont avers that he immediately applied his vehicle's brakes but was unable to stop prior to lightly contacting the rear of the lead vehicle. While [*7]Almont argues that the lead vehicle's sudden, unexplained stop creates a question of fact, First Department case law is clear that a claim by the rear driver that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the rear driver. (Giap v Hathi Son Pham, 159 AD3d 484, 485 [1st Dept 2018]; Bajrami v Twinkle Cab Corp., 147 AD3d 649 [1st Dept 2017]; Santos, 126 AD3d at 506; Soto-Maroquin, 63 AD3d at 450; Woodley, 25 AD3d at 452; see also Earl v Hill, 200 AD3d 518 [1st Dept 2021].) The rule that a rear driver is obligated to maintain a safe distance between her vehicle and the vehicle in front of her "imposes on [her] a duty to be aware of traffic conditions, including vehicle stoppages." (Johnson v Phillips, 261 AD2d 269, 271 [1st Dept 1999].) As the court observed in Animah v Agyei (63 Misc 3d 783, 790 [Sup Ct, Bronx County 2019, Higgitt, J.]):

"The expectation of a driver operating a motor vehicle on a highway with normal conditions—that traffic will continue unimpeded—is not shared by {**79 Misc 3d at 294}one operating a motor vehicle on a local public municipal roadway, particularly within the City of New York. The operator of a motor vehicle traveling on a local public roadway within the City of New York must anticipate a variety of events, including a sudden stop by a vehicle in front of the operator's vehicle. Put simply, sudden stops on local public roadways within the City of New York are immanently foreseeable, and the operator of a vehicle travelling on such a roadway should therefore expect that the flow of traffic will be interrupted."

Thus, because this accident occurred on a New York City street, Almont should have anticipated sudden stops, such as the one that he claims caused the accident. Almont's assertion of a sudden-stop defense is therefore insufficient to preclude summary judgment against him on the issue of liability.

Further, neither Almont nor Uber has raised a material issue of fact as to Brown's own liability and status as an innocent passenger. Mere speculation, such as that offered by both defendants, is insufficient to raise an issue of fact to defeat the motion as directed to the affirmative defense. (See Cabrera v Rodriguez, 72 AD3d 553, 554 [1st Dept 2010], citing Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281-282 [1978]; Garcia v Verizon N.Y., Inc., 10 AD3d 339, 340 [1st Dept 2004].)

Moreover, contrary to Almont's and Uber's contentions, Brown's motion for summary judgment is not premature. A summary-judgment motion as to liability is not, as a rule, premature where the parties to the accident have submitted affidavits. (Salodkaya v City of New York, 193 AD3d 604 [1st Dept 2021].) Here, Almont submits his affidavit attesting to his version of how the accident occurred. Additionally, it is well settled that "[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 a motion." (Downey v Mazzioli, 137 AD3d 498, 499 [1st Dept 2016] [internal quotation marks and citation omitted]; Cabrera, 72 AD3d at 554, citing Alvord & Swift, 46 NY2d at 281-282; Garcia, 10 AD3d at 340.) Thus, the mere hope of discovering some evidence that might exonerate Almont from liability through the depositions of the parties (even though Brown has already been questioned under oath and Almont has presented his version of events through an affidavit, and there are no other parties to this action besides Uber, who was not present) is an insufficient basis on which to deny Brown's motion.{**79 Misc 3d at 295}

Brown has failed, however, to demonstrate a prima facie case of liability against Uber. In the motion, Brown seeks summary judgment against Uber solely on the ground that it owned the Almont vehicle involved in the accident. (NYSCEF Doc No. 11 ¶ 8.) But Brown makes that assertion in an attorney affirmation without any evidentiary support whatsoever. (Id.) Also, tellingly, nowhere in her complaint does Brown allege that Uber owned the vehicle; rather, she alleges that Almont owned the vehicle. (NYSCEF Doc No. 12 ¶¶ 9, 11-12.)^[FN3] Accordingly, Brown's motion must be denied as to Uber without even considering the sufficiency of Uber's opposition. (Fiallos v New York Univ. Hosp., 85 AD3d 678 [1st Dept 2011].)

The court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the movant was not addressed by the court, it is hereby denied.

Accordingly, it is hereby ordered that plaintiff Melanie Brown's motion (seq No. 1) seeking an order, pursuant to CPLR 3212, granting her summary judgment against defendant Juan Almont and defendant Uber Technologies, Inc. on the issue of liability and striking their affirmative defenses of comparative negligence is granted only to the extent of (1) finding Almont liable for the underlying accident, (2) finding Brown to be an innocent passenger not liable for the underlying accident, and (3) dismissing Almont's and Uber's affirmative defenses alleging Brown's comparative or contributory negligence; and it is further ordered that Brown's motion (seq No. 1) is otherwise denied; and it is further ordered that Uber's cross-motion (seq No. 1) seeking an order staying Brown's motion for summary judgment in light of Uber's intent to arbitrate Brown's claims is denied; and it is further ordered that Brown's cross-motion (seq No. 1) seeking an order staying arbitration pursuant to CPLR 7503 (c) is granted; and it is further ordered that Uber's cross-motion (seq No. 1) seeking an order compelling arbitration pursuant to CPLR 7503 (c) is denied; and it is further ordered that the Clerk shall mark the motion and cross-motions (seq No. 1) decided in all court records.