Rigano v. Uber Techs.

2024 NY Slip Op 51381(U)

Rosa Anna Rigano, Petitioner, v. Uber Technologies, Inc., UBER U.S.A., LLC, Respondents.

Index No. 72587/2023

Supreme Court, Westchester County

October 2, 2024

Unpublished Opinion

Attorney for Plaintiff: ADAM ERIC DEUTSCH, ESQ. Fiedler Deutsch, LLP

Attorney for Defendants: ALEXIS TAYLOR GROSSMAN, ESQ. Wilson Elser Moskowitz Edelman & Dicker LLP

David F. Everett, J.

Upon consideration of the papers filed in the New York State Courts Electronic Filing System (NYSCEF) Doc. Nos. 1-48 relative to the petition to vacate respondents' notice of intention to arbitrate and to permanently stay the arbitration, as there is no valid agreement to arbitrate, and the motion by respondents Uber Technologies, Inc. and Uber U.S.A., LLC (collectively Uber) for an order: (1) dismissing the petition; (2) compelling and directing petitioner to arbitrate her claims against Uber (CPLR 7503); (3) staying this proceeding and the related personal injury action filed in the Westchester County Supreme Court under Index No 65453/2023 and any cross-claims alleged against Uber until after the arbitration between the parties is completed; and (4) for such other and further relief as the Court deems just and appropriate, the Court determines as follows:

Background

The Personal Injury Action

On August 18, 2023, plaintiffs Anthony Coppola, Antonietta Rigano, Petitioner, F.C., an infant, and Agatino Rigano (plaintiffs) commenced a personal injury action against defendants Uber; Zaza Robakidze (Robakidze), Maruf Azimov (Azimov), Rustamjon Express Corp. (Rustamjon Express) (collectively the Driver Defendants); and Leonard Zuckerman and Ellen Zuckerman (collectively the Zuckerman Defendants) by filing a summons and complaint in the Westchester County Supreme Court under Index No. 65453/2023.

The complaint alleges that Uber employed drivers, including Robakidze and Azimov, to provide transportation for users of its service through an online-enabled application called the Uber App; that on July 19, 2023, petitioner had an account with Uber, and used the Uber App for transportation; that the motor vehicle Uber assigned to fulfill petitioner's request for transportation was owned and operated by Robakidze and/or Azimov and/or Rastamjon Express; and that this vehicle, in which plaintiffs were passengers, came into contact with the motor vehicle owned and operated by the Zuckerman Defendants, and as a result, plaintiffs were injured. Plaintiffs allege, inter alia, that their injuries were caused by Uber's carelessness recklessness, and negligence in the supervision, management, direction, and control of the Driver Defendants, and in facilitating the use of the Uber App by Robakidze and Azimov.

On October 25, 2023, Uber filed an answer, asserting 57 affirmative defenses, including one alleging that the dispute is subject to an arbitration agreement between the parties. Uber did not allege any counterclaims or cross-claims.

On November 8, 2023, Uber served a notice of intention to arbitrate (the Notice; NYSCEF Doc No. 15) on petitioner's counsel. In the Notice, Uber indicated that petitioner had agreed to an arbitration agreement when she used the Uber App on February 26, 2023, and before that, on August 18, 2022. The Notice includes as exhibits a copy of the 2023 Terms of Use (the Terms of Use), as well as a screenshot of the in-app blocking popup screen, which states: "We've updated our terms" and "We encourage you to read our updated Terms in full." There are two hyperlinks below, one for "Terms of Use" and one for "Privacy Notice," and a checkbox, next to which it states: "By checking the box, I have reviewed and agree to the Terms of Use and acknowledge the Privacy Notice." Below the checkbox and this statement is a "Confirm" button (Petition, Exhibit A; NYSCEF Doc No. 2). ^[1]

The Instant Petition to Stay Arbitration

On December 26, 2023, petitioner commenced the instant proceeding by filing a petition (NYSCEF Doc No. 1). The petition seeks to vacate the Notice and to permanently stay arbitration pursuant to CPLR 7503 (b) and (c), on the basis that no valid arbitration agreement was made.

The petition alleges that petitioner was not aware of the arbitration agreement when she registered for the Uber App and never intended to waive her constitutional right to a trial by jury or to handle disputes by arbitration; that Uber's registration process did not adequately communicate an offer to arbitrate in a definite manner; and that neither the agreement nor the popup screen placed her on notice that she was agreeing to arbitration and waiving her right to a jury trial.

Petitioner argues that the Uber App does not put a reasonably prudent person on inquiry notice of the Terms of Use; that the popup screen did not explicitly explain or state that she was agreeing to an arbitration agreement; and that although the Uber App contained different colored hyperlinks to the Terms of Use, they were not sufficient to give her adequate notice of the offer to arbitrate.

Petitioner contends that the agreement lacked the clarity and conspicuousness necessary to secure informed consent; that the agreement does not include a definition of arbitration or a link to a definition; and that the agreement does not explain the difference between binding and non-binding arbitration.

Finally petitioner concludes that the popup screen did not provide her with an unambiguous method of accepting or declining the offer to arbitrate; that the agreement is a clickwrap agreement, pursuant to which a user must click "I agree" but is not required to view the agreement; and that she was not required to open the Terms of Use, physically scroll through the agreement, or read it before agreeing.

In her affidavit is support of the petition, petitioner avers, inter alia, that she did not agree with Uber to arbitrate any claims; and that when she registered for the Uber App, she was unaware of, and never saw an arbitration agreement.

Discussion

Agreement to Arbitrate

CPLR 7503 (a) provides:

A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502 the court shall direct the parties to arbitrate. Where any such question is raised, it shall be tried forthwith in said court. If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration.

In God's Battalion of Prayer Pentecostal Church, Inc. v Miele Assoc., LLP (6 N.Y.3d 371, [2006]), stated the following regarding arbitration agreements:

Although CPLR 7501 confers jurisdiction on courts to enforce written arbitration agreements, "[t]here is no requirement that the 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 N.Y.2d 291, 299 [1974] [internal quotation marks deleted]; see also Flores v Lower E. Side Serv. Ctr., Inc., 4 N.Y.3d 363, 370 [2005]). A party to an agreement may not be compelled to arbitrate its dispute with another unless the evidence establishes the parties' "clear, explicit and unequivocal" agreement to arbitrate (Matter of Waldron [Goddess], 61 N.Y.2d 181, 183 [1984]), but our case law makes it clear that a signature is not required.

In Scotti v Tough Mudder Inc. (63 Misc.3d 843, 849-850 [Sup Ct, Kings County 2019]), the Court recognized the nuances of online contracts:

"The creation of online contracts 'has not fundamentally changed the principles of contract'" (Resorb Networks, Inc. v YouNow.com, 51 Misc.3d 975 980-981 [Sup Ct, NY County 2016], quoting Register.com, Inc. v Verio, Inc., 356 F.3d 393, 403 [2d Cir 2004]). The question of whether there is agreement to accept the terms of an online contract turns on the particular facts and circumstances. Courts generally look for evidence that a website user had actual or constructive notice of the terms by using the website (see Schnabel v Trilegiant Corp., 697 F.3d 110, 120 [2d Cir 2012]). Where the person's alleged consent is solely online, courts seek to determine whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms of the agreement were reasonably communicated to the user (id. at 120; see Fteja v Facebook, Inc., 841 F.Supp.2d 829, 833, 835 [SD NY 2012]; Starke v Gilt Groupe, Inc., 2014 WL 1652225, *2-3, 2014 U.S. Dist LEXIS 58006, *6-7 [SD NY, Apr. 24, 2014, No. 13 Civ 5497(LLS)]; Jerez v JD Closeouts, LLC, 36 Misc.3d 161, 168 [Nassau Dist Ct 2012]). In Specht v Netscape Communications Corp. (306 F.3d 17 [2d Cir 2002]), the court emphasized that "[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility" (id. at 35; see Starke v Squaretrade, Inc., 2017 WL 3328236, *5, 2017 U.S. Dist LEXIS 122599, *9-12 [ED NY, Aug. 3, 2017, 16-CV-7036 (NGG)], affd 913 F.3d 279 [2d Cir 2019]).

In Berkson v Gogo LLC (97 F.Supp.3d 359, 394-403 [ED NY 2015]), the four "general types of online consumer contracts [are identified as] (a) browsewrap; (b) clickwrap; (c) scrollwrap; and (d) sign-in-wrap." As explained by Judge Weinstein in Berkson:

"Browsewrap exists where the online host dictates that assent is given merely by using the site.

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