Wllliamson v Alexander

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Wllliamson v Alexander 2022 NY Slip Op 34503(U) July 27, 2022 Supreme Court, Kings County Docket Number: Index No. 508671/21 Judge: Carolyn E. Wade Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 508671/2021 FILED: KINGS COUNTY CLERK 08/04/2022 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/12/2022 I :j At an IAS Terin, Part 84 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the j. AJrf:y of July, 2022. I PRESENT: HON. CAROLYNE. WADE, Justice. -----------------------------------X NEFIA WlLLIAMSON, -.. Plaintiff, c.n -,, Index No ..508671/21 .. againstJANET ALEXANDER, HOWARD ALFRED THORNE, AND UBER DAMSt CHNOLOGIES, Mot. Seq. I, 2 INC., Defendant. w----~-~---~--------- -~-~---------X NYSCEF Doc Nos. Notice of Motion/Order to Sh w Cause/ Petition/Cross Motion and Affidavits (Affirmations) Ann x e d ' - - - - - - - - - - - Opposing Affidavits (Affirma ions)_ _ _ _ _ _ _ _ __ Reply Affidavits (Affinnation )_ _ _ _ _ _ _ _ _ ___ 13-23; 34-41 46 58-60 I 1 Upon the foregoing apers, plaintiffNefia Williams~n (plaintiff) moves in motion (mot.) sequence (seq.) one :fir an order, pursuant to CPLR 7503 (c), staying the arbitration demanded by defendant ER TECHNOLOGIES, INC. (hereinafter "Uber") by letter ;. dated July 29, 2021. Ub r cross-moves, in mot. seq. two, for an order compelling I arbitration and staying the p oceedings ofthis action during the pendency of the arbitration. .j .f I [* 1] 1 of 15 FILED: KINGS COUNTY CLERK 08/04/2022 NYSCEF DOC. NO. 78 INDEX NO. 508671/2021 RECEIVED NYSCEF: 08/12/2022 Background On April 25, 2019, laintiff was a passenger in the vehicle driven by defendant Alfred Thome ("Thorne") hen Thome's vehicle allegedly collided with the vehicle owned and operated by de ndants Janet Alexander ("Alexander") and Howard Adams ("Adams") near Linden Bo levard and Malta Street in Brooklyn, New York. Plaintiff alleges that she utilized the Uber application to connect with Thome and that Uber was responsible for Thorne' s act ons at the time of the accident. On April 13, 2021, p aintiff commenced this action seeking to recover for injuries allegedly sustained as a re ult of the subject accident. On or around July 29, 2021, plaintiff received Uber' s N ice of Intention to Arbitrate by letter dated same (hereinafter "Arbitration Demand"). August 16, 2021, plaintiff filed the instant motion seeking a stay of the arbitration. Plainti 's Motion to St In support of her mo on to stay arbitration, plaintiff contends that the only portion of any alleged agreement b tween Uber and herself that has ever been provided to her is the snippet in Uber' s Arbitr tion Demand. As such, plaintiff contends that Uber fails to establish the existence of an rbitration agreement because Uber fails to describe when and how plaintiff agreed to arbit te her claims against Uber or how Uber' s digital or clickwrap agreements were presented t plaintiff at the time of the purported agreement. Relying on the case of Ramos v Uber echnologies. Inc. (60 Misc3d 422 [Sup Ct, Kings County 2018]), plaintiff argues that er fails to demonstrate that plaintiff unequivocally agreed 2 [* 2] 2 of 15 J 1 .... - FILED: KINGS COUNTY CLERK 08/04/2022 . NYSCEF DOC. NO. 78 INDEX NO. 508671/2021 RECEIVED NYSCEF: 08/12/2022 to arbitrate her claims aga nst Uber. In addition, plaintiff asserts that she should be afforded the opportunity to · onduct discovery on this issue. Plaintiff also points out that the Arbitration Demand m es no mention of co-defendants, Alexander, Adams and Thome and tha,t arbitration hould also be stayed for this reason as well. Uber 's Cross Motion to Co In opposition to plai tiffs motion and in support of its cross motion to compel arbitration, Uber argues that on February 21, 2021, approximately two months before the filing of the instant action ut after the date of incident, plaintiff consented to Uber' s l I January 18, 2021 Terms o Use ("January 2021 Tenns") which included a clear and ! unambiguous arbitration pr vision. Uber further contends. that plainti:ffs personal injury I l claims fall squarely within t e scope of the arbitration provis1on. In support, Uber pro ers the affidavit of Ryan Buoscio ("Buoscio"), Senior Legal Manager of Program Ope ations and Insurance Litigation Analytics, who has been employed by Uber since 20 6 (NYSCEF Doc No. 36, ,T 2). Buoscio avers that Uber is a technology company that u s its proprietary techrtology to develop and maintain digital multi-sided platforms, one o which is the Rides platfofll1 (id at 'il'il 4, 5). Buoscio explains that riders download the rid version of the Uber application (hereinafter ''App") while drivers download the drive version of the Uber application, and that together, these applications facilitate the c nnection of individuals in need of a ride with individuals willing to provide transport ion services (see id. at if 5). J;Juoscio also avers that, in the normal course of its busin s, Uber maintains records regarding when and how riders3 [* 3] 3 of 15 . I I 1 l FILED: KINGS COUNTY CLERK 08/04/2022 ..., NYSCEF DOC. NO. 78 INDEX NO. 508671/2021 RECEIVED NYSCEF: 08/12/2022 register and the Terms ofU e in effect and as amended from time to time, and that he has i access to these records and re familiar with them (id. at ,r 7), lI I According to Buosci , on or about February 21, 2021, plaintiff was presented with an in'"app blocking pop-ups reen with the header "We've updated our terms" (id. at 18). He further asserts that the s reen also stated in large type, "We encourage you to read our Updated Terms in full" an that underneath, the phrases "Terms of Use" and "Privacy Notice" were displayed, un er1ined and in bright blue text indicating a hyperlink (id.). I t The pop-up screen also exp essly stated that: "By checking the box, I have reviewed and agreed to the Terms of Use nd acknowledge the Privacy Notice" and that "I am at least 18 years of age" (id. at ,r 9). Buoscio avers that plaintiff clicked the checkbox and tapped 1 "Confinn' 1 on February 21, 021 (id.). Attached as exhibits to Buoscio's affidavit are: (1) . a purported screenshot of he in-app blocking pop-up screen; (2) a data entry sheet reflecting plaintiffs rider ac ount sign-up date as well as the date that plaintiff purportedly consented to the January 2 1 Terms by clicking the checkbox and tapping "Confirm;" and (3) a copy of the Janua 2021 Terms albeit not in screenshot form (see id. at exhibits A-C). Uber contends ecause the hyperlinks were reasonably conspicuous and plaintiff clicked a checkbox onfirming her assent to Uber's January 2021 Terms, plaintiff had reasonable inquiry noti e of the binding arbitration provision, which is all that is required under the law. U er also relies on the enforcement of the subject arbitration j 4 [* 4] 4 of 15 FILED: KINGS COUNTY CLERK 08/04/2022 NYSCEF DOC. NO. 78 INDEX NO. 508671/2021 t I RECEIVED NYSCEF: 08/12/2022 provision in other jurisdicti ns outside of New York to argue that its January 2021 Terms and checkbox process were lear, conspicuous, and reasonable. Regarding arbitrabili , Uber argues that plaintiffs claims for personal injury fall unambiguously within the s ope of its arbitration provision which states that: " ... you and er agree that any dispute, claim or controversy in any way arising out of or relating to (i) these Terms and prior versions of these J Terms, or the existe ce, breach, termination, enforcement, interpretation, 1 scope, waiver, or vali ity thereof, (ii) your access to or use of the Services at any time, (iii) incide ts or accidents resulting in personal injury that you allege occurred inc Iinection with your use of the Services, whether the dispute, claim or c ntroversy occurred or accrued before or after the date you agreed to the Terms ... " (NYSCEF Doc No. 36, Exhibit C, Section 2(a) (emphas s added)). J Uber asserts that the foregoing language is clear and that its arbitration provision has been enforced multiple imes, even where the incident at issue pre-dated the time of l I the agreement. To the extent that the is an issue regarding arbitrability, Uber argues that said issue l must be submitted to the ar itrator pursuant to the January 2021 Terms, which sets forth t that: "The parties agree tha the arbitrator ("Arbitrator"), and not any federal, state, or local court or ag ncy, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arb tration Agreement, including any claim that all or any part of this Arbitratio Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues r lating to whether the Terms are applicable, unconscionable or ill sory and any defense to arbitration, including waiver, delay, laches, or esto pel. if there is a dispute about whether this Arbitration Agreement can be en arced or applies to a dispute, you and Uber agree that the arbit_rator will dee de that issue" (id. at Exhibit C, Section 2(c)). • t s [* 5] ... 5 of 15 I ' ,... FILED: KINGS COUNTY CLERK 08/04/2022 ·"' ~ INDEX NO. 508671/2021 I· RECEIVED NYSCEF: 08/12/2022 I NYSCEF DOC. NO. 78 To the extent that pl ·ntiff relies on Ramos v Uber Techs., Inc., supra, t_o support 1 ·t f her position that she cannot be deemed to have agreed to arbitration, Uber argues that the court is not bound by the d cision of a fellow trial level court and that Ramos is, in any ,, case, on appeal Notwithst nding the foregoing, Uber contends that Ramos and the instant matter are fundamentally d similar since the proof submitted in Ramos differs from the proof submitted herein, and mor~ importantly, the presentation of information confronted ' by the plaintiff in Ramos o her mobile phone differs from that presented on plaintiffs phone. Thus, that the issu of conspicuousness that the Ramos court alluded to in its decision is inapplicable sin e plaintiff herein was provided with conspicuous notice with ., I different colored hyperlinks and express notification that the changes related to, inter alia, arbitration. Finally, Uber conten s that the arbitration provision is enforceable against plaintiff , regardless of the presence o other parties that are not bound by arbitration. Uber asserts that the necessity of litiga · g in multiple forums is not a b,~is to stay arbitration and that, f in any case, the court has iscretion to stay litigation among the non-arbitrating parties pending the outcome of th arbitration, which is contemplated by both federal and state statutes under 9 use § 3 an NY CPLR 7503 (a). f l l I 6 ·j .! j .t [* 6] 6 of 15 ,r FILED: KINGS COUNTY CLERK 08/04/2022 ~~,... --------· i - 1 NYSCEF DOC. NO. 78 - INDEX NO. 508671/2021 f , I RECEIVED NYSCEF: 08/12/2022 f Plaintiff; in reply, ar ues that the arbitration agreement contained in the January 2021 Terms should not be r troactively applied to plaintiffs April 25, 2019 accident as a matter of public policy. In support, plaintiff relies on Newton v LVMH Moet Hennessy J I Louis VuiUon Inc. (192 AD3 540, 541 [ l st Dept 202 lJ), arguing that the First Department I refused to retroactively app y CPLR 7515 to an incident that predated the statute out of I public policy concerns. Pl intiff argues that allowing Uber to solicit accident victims to enter into an arbitration agre ment after an accident takes place and theri to use that against them is predatory and shoul be disallowed. I Secondly, plaintiff r iterates that Uber's arbitration provision, undisputedly in clickwrap form, lacks clari and conspicuousness because: ( 1) plaintiff was not required scrollthrough the agree nt or actually click open the January 2021 Terms or Privacy to 1 f Notice but, rather, was only ncouraged to read them; (2) by relying solely on the "pop upn clickwrap form, Uber failed o provide plaintiff with an unambiguous method of accepting -~ I or declining the offer to arb tration and merely asked plaintiff to "agree" to its terms by tapping "Con~pn"; and (3) the popup screen did not explicitly explain or identify that plaintiff was entering into a inding contract to arbitrate. Lastly, if the court ompels arbitration, plaintiff requests that the court order arbitration to proceed imme iately. Further, plaintiff argues that no aspect of this case should be dismissed until th disposition of the arbitration and that the remaining claims 7 •· [* 7] 7 of 15 • . ···•IL _.-.4.., __.j FILED: KINGS COUNTY CLERK 08/04/2022 NYSCEF DOC. NO. 78 INDEX NO. 508671/2021 RECEIVED NYSCEF: 08/12/2022 against the non-moving d fendants should continue following the outcome of the arbitration. Uber 's Reply In reply to plaintiff's pposition and in further support of its cross motion to compel arbitration, Uber maintains t at the design and content ofits in-app blocking pop-up screen placed plaintiff on inquiry n tice of its updated terms because: (1) its pop-up screen was uncluttered; (2) the text stati g that by checking the box, plaintiff was confirming that she had reviewed and agreed to he terms in full appeared directly after the hyperlink; (3) the hyperlink: to the terms was asily located above the checkbox without scrolling; (4) the language confinning that sh read .the terms and agreed to them was clear and obvious with black font against a white b ckground; (5) the hyperlink to the terms and privacy policy were set off in blue, larger £ nt; (6) the language of the text "By clicking the checkbox, I have reviewed and agree to he Terms of Use and acknowledge the Privacy Notice" was clear; and (7) notice of plai tiffs assent was connected to her clicking the checkbox and tapping the "confirm" butto at the bottom of the screen. In addition, Uber explains that its arbitration provision was 1 ot buried at the bottom of the January 2021 Terms but, rather, placed on the very first page n bold and all capitalized letters making it stand out from the rest of the text on that page a d that the arbitration provision occupied the second provision in its January 2021 Terms. Uber also contends t at pursuant to Nicosia v Amazon.com, Inc. (815 Fed. Appx. 612 [2d Cir 2020]), plaintiff as repeatedly ratified her acceptance ofUber's January 2021 8 [* 8] 8 of 15 I I· INDEX NO. 508671/2021 FILED: KINGS COUNTY CLERK 08/04/2022 I RECEIVED NYSCEF: 08/12/2022 I NYSCEF DOC. NO. 78 J Terms by using the Uber A p 204 times since the filing of her·motion to stay arbitration on August 16, 2021. Ube represents that the Nicosia holding is in line with the just rationale that continued use fthe Uber App invalidates any lack of notice argument. Finally, as for Whe her retroactive application of its arbitration provision is unconscionable, Uber asse .s that other federal courts, specifically In re Currency Conversion Fee Antitrust Litig. (265 F Supp2d 385, 407 [SDNY 2003]) and l TradeComet.com LLC v. Go gle, Inc. (435 Fed. Appx. 31, 35, [2d Cir 2011]), have upheld similar arbitration provision despite the fact that the incident accrued before the relevant provision went into effect. To the extent that plaintiff relies on Newton v LVMH Moet Hennessy Louis Vuitton Ii c., supra, Uber asserts that such reliance is misplaced. According to Uber, the co rt in Newton held that CPLR 7515 - which prohibits the inclusion of a mandator.y itration provision to resolve any allegation or claim of discrimination as a condition of obtaining remedies under a contract- was not retroactively applicable to arbitration agr ements that were entered into preceding the enactment of the law. Unlike the Newton ase, Uber argues that, here, there is no statute expressly prohibiting the inclusion in contract of an arbitration provision that applies to claims that f I have already accrued and, in fact, that New York Jaw allows such contracts. Discussion It is well established that "[a] party to an agreeme9t may not be compelled to arbitrate its dispute with ano er unless the evidence establishes the parties' clear, explicit and unequivocal agreement o arbitrate" (God's Battalion ofPrayer Pentecostal Church, 9 [* 9] " 9 of 15 ·1 '! FILED: KINGS COUNTY CLERK 08/04/2022 NYSCEF DOC. NO. 78 INDEX NO. 508671/2021 1· RECEIVED NYSCEF: 08/12/2022 I Inc. v Miele Assoc., LLP, 6 NY3d 371, 374 [2006] [internal quotation marks omitted]). When one party seeks to co pel the other to arbitrate a1_1y disputes between them, the court must first detennine whethe the parties made a valid arbitration agreement (see Harriman Group v Napolitano, 213 2d 159, 162 [1st Dept 1995]). "[T]he enforceability of arbitration agreements is governed by the rules applicable to contracts generallyH (Sab osky v Gordon Co., 73 NY2d 133, 136 [1989]). "To form a binding contract there must ea 'meeting of the minds' such that there is a manifestation of mutual assent sufficient} 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 and ex emal citations omitted]). Mutual assent may be manifested by written or spoken words, or by conduct (Meyer v Uber Techs., Inc., 868 F3d 66, 74 [2d Cir 2017] [citations omitte ]). H[W]here the purported assent is largely passive, the contract-formation question ill often turn on whether a.reasonably prudent offeree would be on notice of the term at i sue" (Schnabel v Trilegiant Corp,, 697 F3d 110, 120 [2d Cir 2012]), "In other words, here there is no actual notice of the term, an offeree is still bound by the provision ifhe r she is on inquiry notice of the ~enn and assents to it through the conduct that a reasonabl person would understand to constitute assent" (id.). Inquiry notice is actual notice of circ mstances sufficient to put a prudent person upon inquiry (see Specht v Netscape Commu s. Corp., 306 F3d 17, 31 [2d Cir 2002]). In making this ·determination, the ~'[c]larity and conspicuousness [of the term is] important .... " (id. at 30). .l 10 [* 10] 10 of 15 I ....,,.....--=-----FILED: KINGS COUNTY CLERK 08/04/2022 r - - - - - -...............-----......---....... ,_ ,...,..---="'-·....... -- ~ - INDEX NO. 508671/2021 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/12/2022 In Berkson v Gago LLC (97 F Supp 3d 359, 394-403 [BONY 2015]), Judge Weinstein identified the our general types of online consumer contracts as: (a) browsewrap; (b) clickwrap; c) scrollwrap; and (d) sign-in-wrap. As explained by Judge 1 Weinstein: '"Browsewrap xists where the online host dictates that assent is given merel by using the site. Clickwrap refers to the assent process by wh ·cha user must click 'I agree,' but not necessarily view the contr ct to which she is assenting. Scrollwrap requires users to physi ally scroll through an internet agreement and click on a sep te 'I agree' button in order to assent to the terms and con itions of the host website. Sign~in-wrap couples assent to the t rms of a website with signing up for use of the site's services ..." (id. at 394-395) Generally, courts fin clickwrap agreements enforceable since they necessitate an active role by the user of a ebsite (id. at 397). ''By requiring a physical manifestation of assent, a user is sai~ to be p ton inquiry notice of the tenns ~ssented to" (id.). However, "[r]egardless of the nomen lature, the classification of an online agreement does not conclude the inquiry, nor do s the fact a consumer may have clicked a box" (Applebaum v Lyfi, Inc., 263 F Supp 3d I l 54, 466 [SONY 2017]). "The presentation of the online I agreement matters: 'Whethe there was notice of the existence of additional contract terms presented on a webpage d pends heavily on whether the design and content of that webpage rendered the exist nee of terms reasonably conspicuous"' (id. citing Nicosia v Amazon.com, Inc., 834 F3d 220, 233 [2d Cir 2016]). "Clarity and ,conspicuousness of arbitration terms are import tin securing informed assent" (id [citation omitted]). 11 [* 11] 11 of 15 I FILED: KINGS COUNTY CLERK 08/04/2022 NYSCEF DOC. NO. 78 INDEX NO. 508671/2021 RECEIVED NYSCEF: 08/12/2022 "The proponent of rbitration has the burden of demonstrating that the parties agreed to arbitrate the dispu at issue" (Eiseman Levine Lehrhaupt & Kakoyiannis, P. C. v Torino Jewelers, Ltd., 44 3d 581, 583 [1st Dept 2007 [citation omitted]). The party seeking to avoid arbitration, onversely, bears the burden of showing that the agreement is inapplicable or invalid (App ebaum v Lyfi; Inc., 263 F Supp 3d at 464, quoting Harrington v All. Sounding Co., 602 F d 113, 124 [2d Cir 2010]). "If a party refuses to arbitrate, arbitrability of the dispute hi ges only on whether there is an agreement to arbitrate and, if so, whether the dispute falls within that agreement" (id. quoting US. Fire Ins. Co. v Nat'l Gypsum Co., 101 F 3d 813, 16 [2d Cir 1996]). Here, plaintiff does n t dispute that her personal injury claims fall within the ambit of the subject arbitration cl se. Plaintiff only' disputes that she ever agreed to arbitrate her claims in the first plac . Based on the evidence, however, the court finds that the design, layout and language sed in the pop-up screen notifying plaintiff ofUber's updated terms as well as plaintifr s m nifestation of assent by clicking the checkbox and "Confirm" button placed plaintiff on in uiry notice ofUber's terms and, as such, plaintiff is therefore bound by them. Specific lly, the court finds that the relevant pop-up screen was uncluttered and that the te t for Uber's ' 1Tenns of Use" and "Privacy Notice" were conspicuous insofar as they ere located in the center of the screen, in bulleted fonnat and in underlined, blue font indi ating that the text were hyperlinked. Additionally, below the hyperlinks was the checkbo with language confirming that "[b]y checking the box," the -f I •· [* 12] 12 ., I 12 of 15 INDEX NO. 508671/2021 FILED: KINGS COUNTY CLERK 08/04/2022 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/12/2022 ·1 .. user has "reviewed and agre to theTerms of Use .... ," which plaintiff had to affinnatively click as well as click the "C nfirm" button at the bottom of the screen to proceed. In addition, the arbi ation provision itself is reasonably conspicuous because the arbitration clause/warning is located within the very first section of the January 2021 Terms I I { and in all capitalized letters whereas the surrounding text is not capitalized. Thereafter, the actual section dedicated r arbitration, and its sub•clauses, occupy the very next section, under section two. l:j j Even if plaintiff was ot deemed to have been on inquiry notice ofUber's January 2021 Terms based on the a ove reasoning, plaintiff has since assented to those terms by her continued use of the er App since the filing of her motion and receiving Uber's ,,t f Arbitration Demand (see Ni osia v Amazon.com, Inc., 815 Fed. Appx at 6f4 [finding that plaintiff received notice an assented to the arbitration clause no later than September 2014, when Amazon filed motion. in this litigation raising the' arbitration clause as a ground for dismissal, and laintiff proceeded to make at least twenty-seven purchases through Amazon.com since at date]), a fact that plaintiff does not dispute. Finally, plaintiff fail to demonstrate that the subject arbitration provision should not apply to plaintiffs actio because said action accrued prior to the agreement. Plaintiff agreed to the January 2021 erms two months prior to commencing the instant litigation. Although the motor vehicle accident occurred in 2019, two years prior, Uber's January j ·1 2021 Terms clearly state th t Uber's arbitration provision applies to claims that accrue before the date that the user ctually agrees to the terms. Plaintiff fails to demonstrate that 13 [* 13] 13 of 15 INDEX NO. 508671/2021 FILED: KINGS COUNTY CLERK 08/04/2022 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/12/2022 such language in a contract is void for public policy considerations or that it should not otherwise be enforced. As represented by Uber, plaintiffs reliance on Newton v Lvmh Moet Hennessy Louis Vuit n, supra, is misplaced. Newton dealt with CPLR 7515's prohibition of agreements c mpelling arbitration of discrimination claims and found that, CPLR 7515 did not apply t the agreement at issue because ( 1) said agreement predated the enactment of CPLR 75 5 and (2) CPLR 7515 expressly applied only to contracts entered into "on or after the ffective date of this section" (see CPLR 7515[b][l]; see also Altman v Salem Media ofN. ., LLC, 188 AD3d 515,516 [1st Dept 2020]). Based on the foregoi g, plaintiffs claims against Uber must go before an arbitrator. Although the other defend nts are not subject to the arbitration clause, the need for bifurcated litigation is not a ar to enforcement of an arbitration 'agreement (see Brown v V & R Advertising, Inc., 112 2d 856, 861 [1st Dept 1985] [citing Dean Witter Reynolds Inc. v Byrd, 470 US 213, 20-21 [1985]). However, to the extent that Uber seeks to arbitrate plaintiffs claims, e arbitration should proceed immediately, as a protracted delay in the instant litigati n could become prejudicial to plaintiff and the remaining defendants. Conclusion For the reasons state above, Uber established that an· agreement to arbitrate exists and that its mandatory arbi ation clause is enforceable. Thus, plaintiffs motion to stay arbitration is denied and er's cross-motion to compel plaintiff to ar~itrate her claims against Uber is granted. Pla ntiff and Uber are directed to proceed to arbitration forthwith. 14 I r l [* 14] 14 of 15 ~ I -. INDEX NO. 508671/2021 FILED: KINGS COUNTY CLERK 08/04/2022 ll ' I t l [ NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 08/12/2022 The instant litigation is stay d pending outcome of the arbitration or upon further order of the court. Any arguments not e plicitly addressed herein were considered and deemed to be without merit. This constitutes the ecision and Order of the court. -.. ...... ., l . HON. CAROLYN E. WADE JUSTICE OF THE SUPREME COURT 15 [* 15] 15 of 15 __ ..,_.,i; __ ..,

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