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 defendant UBER TECHNOLOGIES, INC.'s ("Uber") motion (Seq. No. 1) seeking an order, pursuant to CPLR 3211(a)(1) and (7), dismissing plaintiff DENISE WEBSTER'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 September 11, 2021, when defendant SIOSIFA F. FALANI-MOALA ("Falani-Moala") opened the door of a vehicle operated by defendant HOPETON A. GOLDING ("Golding") into a bicycle lane, causing Plaintiff to strike the door while she was riding a bicycle in front of the premises at 101 Prince Street, New York, New York.

Plaintiff alleges, in sum and substance, that Golding 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 Golding 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. 12] Mr. Gaddis explains that in order for an Uber driver to accept ride requests from Uber users, the driver must first be logged into Uber's "Driver App" and in "open" 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 App and in "open" status. [Id. ¶ 3] Upon a review of Uber's stored data records for Driver App usage for the account associated with the license plate number of Golding's vehicle, Mr. Gaddis avers that that account logged off of the Driver App on September 4, 2021, and did not log back in and enter "open" status again until September 16, 2021. [Id. ¶ 9, 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 September 11, 2021, the date of the accident. [Id. ¶ 10] Finally, Mr. Gaddis avers that Uber did not "own, lease, maintain, control, or operate" Golding's vehicle on the date of the accident. [Id. ¶ 12]

In opposition to the motion, Plaintiff submits two pieces of evidence that she contends demonstrate that Golding was acting as an Uber employee at the time of the accident. First, she submits Golding's Chapter 7 bankruptcy petition, in which he identified Uber as one of his employers. Second, Plaintiff submits Golding's responses to Plaintiff's Notice to Admit, dated March 24, 2022 (more than three weeks after the instant motion was filed). The Notice to Admit demanded that Golding admit or deny, among other things, whether he was logged into Uber's application at the time of the accident. Golding responded, "Defendants [sic] attorneys currently have no evidence to either admit or deny these allegations." Plaintiff argues that this response is improper, constitutes an admission, and, as such, establishes that Golding was logged into the Driver App when the accident occurred.

Neither Falani-Moala nor Golding submit any opposition to the motion.

Uber moves under both CPLR 3211(a)(1) and (7). CPLR 3211(a)(1) provides that a court may dismiss a complaint based upon "documentary evidence." Evidence qualifies as documentary evidence within the meaning of CPLR 3211(a)(1) only if it is "unambiguous," "essentially undeniable," and of "undisputed authenticity." VXI Lux Holdco S.A.R.L. v. SIC [*2]Holdings, LLC, 171 AD3d 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 3211(a)(1). Bailey v. Gabrielli Truck Leasing LLC, 2022 WL 17255218, at *1 (1st Dep't Nov. 29, 2022); Manglani v. City of NY, 209 AD3d 563, 563 (1st Dep't 2022); Disbrow v. Normandie Condo., 201 AD3d 462, 463 (1st Dep't 2022); Johnson v. Asberry, 190 AD3d 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 3211(a)(1) requirements of undeniability, the motion cannot be granted upon documentary evidence pursuant to CPLR 3211(a)(1).

CPLR 3211(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 3211(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 fit within any cognizable legal theory." Constructamax, Inc. v. Weber, 109 AD3d 574, 574 (2d Dep't 2013).

In the First Department, a defendant moving pursuant to CPLR 3211(a)(7) may rely on extrinsic evidence to challenge the complaint:

A CPLR 3211(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 AD3d 128, 134 (1st Dep't 2014) (citing Guggenheimer v. Ginzburg, 43 NY2d 268 (1977); Rovello v. Orofino Realty Co., Inc., 40 NY2d 633 (1976)).^[FN1] "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 proponent of the pleading has a cause of action, not whether he has stated one.'" Biondi v. Beekman Hill House Apartment Corp., 257 AD2d 76, 81 (1st Dep't 1999) (quoting Guggenheimer, 43 NY2d at 275), aff'd, 94 NY2d 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 by the affidavits and evidentiary matter submitted.'" Id. (quoting Blackgold Realty Corp. v. Milne, 119 AD2d 512, 513 (1st Dep't 1986), aff'd, 69 NY2d 719).

The evidence submitted by Uber here (i.e., Mr. Gaddis's affidavit and its attachment) negates essential facts of Plaintiff's claims against Uber and demonstrates that Plaintiff does not have a cause of action against Uber. Specifically, the evidence demonstrates that Golding 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 Golding could not then have been [*3]operating the vehicle as an Uber. Thus, on the date of the accident, Golding could not have been operating his vehicle within the scope of his employment with Uber (assuming, arguendo, that Golding was then an Uber employee) and could not, therefore, be vicariously liable for Golding's negligence, if any.

The materials that Plaintiff submits in opposition to the motion do not alter the Court's conclusion. First, even if Golding swore in a bankruptcy filing that his employer was Uber, and even if that avowal could satisfy the fact-intensive inquiry normally required under the law to establish an employer—employee relationship, it does not establish, on its own, that Golding was operating within the scope of his employment at the time of the accident. Second, Plaintiff's requests in her Notice to Admit were, in the context of the theory of liability asserted against Uber here, improper because they go to the core of the dispute and could not reasonably be believed to not be in substantial dispute. See CPLR § 3123(a); Altman v. Kelly, 128 AD3d 741 (2d Dep't 2015) (finding Notice to Admit that requested admissions "addressed to the core legal and factual issues" pertaining to employer's vicarious liability to be improper, and stating that "facts underlying the determination of whether [the alleged employer] is liable for the [driver defendant's] alleged negligence may be obtained through discovery, including depositions of the defendants").

Uber's evidence also demonstrates that it did not own Golding's vehicle. Plaintiff does not challenge that part of Mr. Gaddis's affidavit in her opposition.

Accordingly, the motion is properly granted pursuant to CPLR 3211(a)(7).

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 defendants UBER TECHNOLOGIES, INC.'s ("Uber") motion (Seq. No. 1) seeking an order, pursuant to CPLR 3211(a)(1) and (7), dismissing plaintiff DENISE WEBSTER's ("Plaintiff") Complaint and any and all cross-claims asserted against Uber is GRANTED, and the Complaint and any and all cross-claims asserted against Uber are DISMISSED with prejudice; and it is further

ORDERED that the Clerk shall enter judgment dismissing Plaintiff's Complaint and any and all cross-claims as asserted against Uber and severing the remaining action; and it is further

ORDERED that the caption of this action shall henceforth read as:

ORDERED that Plaintiff shall, within thirty (30) days of the upload of this Order to [*4]NYSCEF, file to NYSCEF a completed form EF 22 ^[FN2] so that the NYSCEF clerk is notified to amend the caption of this action accordingly; and it is further

ORDERED that the Clerk shall mark the motion (Seq. No. 1) disposed in all Court records.

This constitutes the decision and order of the Court.