VICTOR GREENE v. OURY DIALLO AHMAD TURAY SITTA TURAY UBER USA LLC RASIER NY LLC RASIER CA LLC UBER TECHNOLOGIES INC (2026)

The plaintiff has moved pursuant to CPLR § 2221 seeking to reargue a decision and order dated January 7, 2026 which granted defendant Uber Technologies motion for summary judgement dismissing the action on the grounds Uber is not vicariously liable to the plaintiff. Uber has opposed the motion and arguments were held. Pursuant to CPLR § 2219(a) the court has reviewed all the documents and motion papers that pertain to this motion. After reviewing all the arguments this court now makes the following determination.

As recorded in the prior decision, on August 27, 2021 an automobile accident took place near the intersection of Knapp Street and Avenue V in Kings County. A car driven by the defendant Turay collided with a vehicle driven by the plaintiff's subrogor Victor Greene. The defendant Turay was operating his vehicle as an Uber driver at the time of the accident and Uber was sued as the defendant's employer. Uber moved seeking summary judgement arguing that as a matter of law Uber was in fact not the employer of Turay, that Turay was an independent contractor working for Uber and that consequently Uber cannot be vicariously liable for the accident. The court granted that motion concluding that Turay was not an employee of Uber but rather was an independent contract and Uber is, therefore, not responsible for Turay's negligence. The plaintiff has now moved seeking to reargue that determination. The plaintiff insists there are significant questions of fact whether Uber maintains an employer-employee relationship with its drivers and indeed other decisions have so held. The plaintiff asks the court to reconsider its prior determination. As noted the motion is opposed.

Conclusions of Law

A motion to reargue must be based upon the fact the court overlooked or misapprehended fact or law or for some other reason mistakenly arrived at in its earlier decision (Diosmaira v. New York City Transit Authority, 238 AD3d 854, 235 NYS3d 97 [2d Dept., 2025]). In the prior decision the court explained that generally an employer can be vicariously liable for the torts of an employee committed during the scope of employment (D.S. v. Positive Behavior Support Consulting and Psychological Resrouces, P.C., 197 AD3d 518, 151 NYS3d 690 [2d Dept., 2021]). However, an employer who maintains an independent contractor is generally not liable for the independent contractor's torts since the employer does not control or supervise the work of the independent contractor (Sultan v. 6810 Wai Inc., 237 AD3d 773, 230 NYS23d 723 [2d Dept., 2025]).

The determination whether an individual is an employee or an independent contractor turns, as noted, on whether the "employer exercises control over the results produced, or the means used to achieve the results" (Rivera v. Fenix Car Service Corp., 81 AD3d 622, 916 NYS2d 169 [2d Dept., 2011]). Further, "control over the means is the more important factor to be considered. Thus, incidental control over the results produced without further indicia of control over the means employed to achieve the results will not constitute substantial evidence of an employer-employee relationship" (Matter of Ted is Back Corp., 64 NY2d 725, 485 NYS2d 742 [1984]).

The court further explained that the common control test, which is utilized in New York focuses upon "the degree of control exercised by the purported employer over the results produced or the means used to achieve the results" (Bynog v. Cipriani Group Inc., 1 NY3d 193, 770 NYS2d 692 [2003]). The court enumerated five factors to assess whether such control exists on the part of the employer. They are "whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule" (id).

In this case Uber submitted the affidavit of Erin O'Keefe a Senior Manager of Corporate Business Operations for Uber. She asserts that Turay was permitted to work at his own convenience, accepting or rejecting rides at his sole discretion without any work requirements on the part of Uber at all. Turay was not subject to any schedule and could choose to accept or decline rides as he saw fit and was not required to accept any minimum number of rides. Moreover, Turay was permitted to engage in any other business activity and was even permitted to work for competitors of Uber including Lyft or Via. Further, Turay did not receive any fringe benefits from Uber such as health insurance or retirement benefits. Lastly, Turay did not receive a salary from Uber, was not on Uber's payroll and Uber did not withhold any taxes from Turay. Thus, Uber has demonstrated, prima facie, that none of the factors applied to defendant Turay and therefore as a matter of law Turay was not an employee of Uber and Uber cannot be liable for Turay's negligence.

The plaintiff argues the court erred in concluding Turay was not an employee because Turay agreed to a platform access agreement with Uber and pursuant to that agreement Uber exercised significant control over Turay's performance, duties and pricing of fares charged to customers. Specifically, the plaintiff points to four provisions contained with the platform access agreement which, they argue, raise questions of fact whether a driver is an employee of Uber. First, Section 2.2 titled 'Compliance' requires the driver to maintain all applicable licenses, registrations and permits to engage in For-Hire services. Second, Section 2.5 entitled 'Background Checks and Licensing, Vehicle Standards' requires every driver to successfully pass any background checks or other driving tests and to make such information available to Uber upon request. Further, this paragraph also requires proper licensing and registration of the vehicle used for the For-Hire service. Third, Section 2.7 entitled 'Use of Uber Branded Materials' states that the driver is not required to display Uber's name or logo or wear any clothing displaying Uber's name or logo. However, the agreement does state that Uber permits a driver to display an Uber logo or wear such clothing only as a means of identifying to a customer a For-Hire service utilizing Uber's platform. The agreement specifically states that the use of such branded materials "does not indicate an employment or other similar relationship" between the driver and Uber and the driver agrees "not to represent yourself as our employee, representative or agent for any purpose or otherwise misrepresent your relationship with us" (id). Lastly, Section 2.8 entitled 'Ratings' states that Uber maintains ratings where a customer can provide feedback about a driver and drivers can provide feedback about customers.

While it is true Turay agreed to the platform access agreement that agreement fails to raise any questions of fact whether Turay was an employee of Uber. First, Paragraph 1.1(a) of the agreement states that the relationship between the driver and Uber is "solely as independent business enterprises" and that "this is not an employment agreement" and the driver is "not an employee of Uber" (id). That designation within the agreement is not dispositive, however, it surely may be considered (Araneo v. Town Board for Town of Clarkstown, 55 AD3d 516, 865 NYS2d 281 [2d Dept., 2008]). Considering the factors enumerated above, there is still no question the driver is not an employee of Uber and does not even satisfy a single element of the five-factor test. Rather, the plaintiff argues another body of law has emerged which does indeed raise questions as to the status of an Uber driver.

In Matter of Vega, 35 NY3d 131, 125 NYS3d 640 [2020] the Court of Appeals held that individual couriers who worked for a courier company named Postmates, with a similar online platform and app based access like Uber were considered employees of the courier company for purposes of unemployment compensation benefits. The court concluded that while any individual courier could choose whether to accept any employment, the company decided the assignment of jobs, customers could not request any specific courier and in the event a courier could not fulfill his or her duties the company was required to find a replacement, not the courier. Further, the court concluded the company was able to track the couriers in real time and provide an estimated time of arrival of the deliveries. In addition, the court concluded the individual couriers could not negotiate their fee, which was a portion of the total amount paid by the customer, and, in fact, would not even know the actual fee until after accepting the particular job. Moreover, the fee was paid by customers to the courier company and if any customer failed to pay then the company bore that loss, not the individual courier. Lastly, the company handled all customer complaints and, in some instances, retained liability to customers for incorrect or damaged deliveries. The court therefore held that the "touchstone" of the analysis is whether the "employer exercised control over the results produced by the worker or the means used to achieve the results" (id., see, also, (Rivera v. Fenix, (supra). In Matter of Vega, (supra) the court concluded that, for purposes of employment insurance, the company exercised sufficient control over the couriers to render them employees rather than independent contractors operating their own businesses.

Indeed, some courts have concluded that there are questions of fact whether Uber drivers are employees and therefore Uber is vicariously responsible for a driver's negligence based on those considerations. For example, in State Farm Mutual Automobile Insurance Company v. Rubel, 88 Misc 3d 360, 241 NYS3d 588 [Civil Court Queens County 2025] the court held there were questions whether Uber drivers are employees because of certain controls that Uber exercises over its drivers. Again in Rawlins v. Myint, _AD3d_, _Misc 3d_, 2026 WL 2038648 [Supreme Court Kings County 2026] the court held there were questions whether an Uber driver was an employee since the driver cannot any of the terms of the platform access agreement, including fees, and further controlled the manner in which a driver performs her duties. Of course, those controls have nothing to do with the factors enumerated in Bynog (supra) but rather with controls that are more appropriately relevant when considering whether an Uber driver is an employee for employment insurance purposes.

To be sure, there are compelling reasons to distinguish between the status of an Uber driver in relation to torts and vicarious liability and in relation to employment insurance. First, vicarious liability benefits third parties, those injured by a worker's negligence, under a broad agency theory. An employer's responsibility for a worker "rests upon the express or implied authorization of the act by the master who, in the employment of another to act for him, assumes all the risks of a wrongful execution of his duties" (Mott v. Consumers' Ice Co., 73 NY 543, 28 Sickles 543 [1878]). Therefore, if the employer does not control the work, then there is no express or implied assumption of any risks. The determining factors of control in this regard are, as noted, whether the worker maintained entrepreneurial independence and a commitment to the company (Bynog, supra). 1 NY3d 193, 770 NYS2d 692 [2003]). The independent contractor thus seeks to limit the vicarious liability of an employer. However, by contrast, unemployment benefits, and indeed, all employee benefits, exist only between the employer and the employee and are designed to expand the responsibilities the employer owes employees. Whereas vicarious liability stretches from an employer to a third-party, unemployment benefits stretch only between the employer and the employee. This difference naturally enhances the definition of an employee regarding unemployment benefits and can ever create a curious situation where an Uber driver is an independent contractor regarding torts but an employee regarding employment compensation.As one commentator has noted "it is just bizarre to look to agency law to determine when employers have obligations to their workers. After all, agency law itself is primarily concerned with an entirely different problem: when to hold employers (or other principals) liable for the acts of their workers (or other agents)" (see, Beyond Misclassification: Tackling the Independent Contractor Problem Without Redefining Employment, by Noah Zatz, 26 ABA Journal of Labor & Employment Law, page 279 [Winter 2011]). In this context, Matter of Vega, (supra) held that an entirely different set of criteria are necessary to determine whether a courier, and perhaps all platform-based gig workers, are considered employees and entitled to employment insurance thereby. Those criteria focus upon the control exercised by the company that are not related to work commitment, the allowance to compete or the option to simply not engage in any work at all. Rather, these criteria concern the company's ability to set prices unilaterally which are not negotiable and to oversee the courier's performance. As succinctly crystalized by the concurrence of Judge Rivera in Matter of Vega, (supra), the core reason the workers of a platform-based company are considered employees and entitled to employment insurance is because the worker would not have access to the customers without the company. The concurrence explained that the workers "have no meaningful way to commodify their efforts into a self-sustaining business. The structure of their work and the realities of the service economy do not permit them to develop a client base by exercising control over their business choices. To put it bluntly, Postmates did not hire entrepreneurs as delivery persons, and Postmates's attempt to create the illusion of entrepreneurialism does not transform these employees into a fleet of independent contractors" (id). The realities of platform-based employment demonstrate that while workers are independent in the sense they can choose when and how often to accept work, they are really tethered to the fortunes of the company and for purposes of employee benefits can hardly be considered 'independent' workers. However, those same concerns do not animate the "control" necessary to impose tort liability upon the employer. In that context the controls are of a different nature and the emphasis rests upon whether an employer should be responsible for the worker's negligence. The inability of an Uber driver to negotiate a fee or to be subject to a rating system without any input has no appreciable connection to the controls necessary for an employer to assume the risks of the worker's negligence. Those risks are created by consistent and routine work performance and attendance, which impute a connection between the employer and third parties that engage the employee. An employee who chooses to drive for Uber on a whim and does not have to answer to Uber for any nonperformance is precisely the sort of employee whom Uber maintains insufficient control in the context of vicarious liability. This dichotomy was actually presaged in the concurrence of Judge Rivera in Matter of Vega, (supra). "Although the definition of "servant" continues to resonate for purposes of the employer's liability to third parties, the Restatement (Second) acknowledges that certain persons not fitting the definition have been held to be employees for purposes of a statutory scheme unrelated to employer tort liability because such treatment furthers the legislative goals of that scheme" (id).

Therefore, based on the foregoing, considering the facts presented (cf., Bandele v. Raiser-NY LLC, _AD3d_, _NYS3d_, 2026 WL 2105204 [2d Dept., 2026]) there are no questions that an Uber driver is not an employee of Uber. Consequently, the motion seeking reargument is denied.

So ordered.

Dated: August 20, 2026

Brooklyn, NY

Hon. Mark Kagan, JCC

Mark Kagan, J.