Vanessa Rawlins, Plaintiff, v. UBER TECHNOLOGIES INC (2026)

The following numbered papers were used on this motion: NYSCEF Document Numbers 225-232, 241, 243.

Introduction

Defendant Uber Technologies, Inc. (Uber) has moved in limine for an order excluding, as irrelevant, immaterial, and prejudicial, the introduction at trial of any reference to the following terms: (1) "Uber driver," (2) "Uber's driver," (3) "Uber car," (4) "Uber vehicle," (5) "the Uber," (6) "an Uber," or (7) "transportation company." No case law specifically on point has been cited by the parties nor has any been located by this Court.

This matter arises out of a motor vehicle collision that occurred on February 9, 2019. In the complaint, Plaintiff alleged that the accident occurred on Belmont Avenue at or near its intersection with Hinsdale Street in Kings County, New York. Plaintiff claimed she was a passenger in a vehicle operated by Defendant Anderson Newlin Rawlins which was struck by a vehicle owned and operated by Defendant Soe Myint, who was logged in to the ride-sharing app of Defendant Uber. The latter denied the allegations of the complaint, specifically allegations pertaining to Uber's being vicariously liable for Defendant Soe Myint's negligence. The matter has been assigned to this Court for trial. The liability phase of the trial is scheduled to commence today.

On November 7, 2022, an order was issued granting Plaintiff summary judgment on liability with respect to Defendant Soe Myint, i.e., he was held liable for the occurrence of the subject accident. As such, Plaintiff's vicarious liability claim against Uber is the only claim at issue in the liability phase of this trial.¹

Defendant Uber's Contentions

Uber argues in support of prohibiting anyone at the trial from uttering the foregoing quoted terms:

14. It is expected Plaintiff will attempt to refer to co-defendant Myint as an "Uber driver" or "Uber's driver." Such terminology is inherently prejudicial and presupposes the very issue the jury must decide—whether Myint was an employee of Uber at the time of the accident. Plaintiff's theory of liability rests on imputing Myint's alleged negligence to Uber under respondeat superior. Because the issue of employment is heavily disputed, allowing repeated use of "Uber driver" and "Uber's driver" would unfairly influence the jury to assume an employment relationship that has not been established. The terms are not probative and are easily replaced with neutral, factually-accurate alternatives such as "Myint," "the driver," or "the other driver." The undue prejudice caused by the use of "Uber driver" or "Uber's driver" would significantly outweigh any probative value.

15. It is also expected that Plaintiff will attempt to refer to the vehicle driven by Myint as an "Uber car," "Uber vehicle," "an Uber", or "the Uber." This terminology is both inaccurate and prejudicial. The undisputed evidence establishes that the vehicle was owned by co-defendant Myint, and that Uber did not own, lease, manage, or maintain it. Using such misleading terms falsely creates an illusion that Uber had a direct connection to the vehicle which risks confusing the jury and creates a substantial risk that the jury will be primed into resolving the case in Plaintiff's favor. There is no probative value in using inaccurate and misleading terminology and the use of such terminology would be highly prejudicial to Uber. (NY St Cts Elec Filing [NYSCEF] Doc No. 225 ¶¶ 14-15.)

Uber argues that New York law permits a court to exclude relevant evidence if its probative value is substantially outweighed by the danger that it will unfairly prejudice the other side or mislead the jury.

Uber is a technology company that creates technology-based marketplaces connecting marketplace actors in a variety of sectors. Uber's most widely used technology service is its mobile apps that connect people in need of goods and services with independent third-party businesses to provide those services (i.e. drivers, restaurants, freight shippers). One such marketplace in New York City enables independent third-party transportation providers—who are independently commercially licensed by the New York City Taxi & Limousine Commission ("NYC TLC")—to receive requests from riders for their services. Simply stated, Uber provides a smartphone technology link or connection between a rider and a TLC-licensed independent third-party transportation provider, such as Myint in this case. Allowing any testimony and evidence to the contrary is irrelevant, improper, prejudicial, and must be excluded. (Id. ¶ 19.)

Plaintiff's Contentions

Plaintiff argues in opposition to Uber's motion in limine by posing a rhetorical question: "How is Plaintiff to present her case if she cannot even refer to Myint as an Uber driver" (NYSCEF Doc No. 243 at 2)? Plaintiff adds: "Certainly the Court can instruct the jury to not presume that by using these terms the Plaintiff has established that the statements are true and it will be the jury's prerogative to decide the issue of whether Uber is vicariously liable for Myint's negligence" (id.).

Plaintiff cites to case law regarding motions to strike statements in complaints for the proposition that terminology relevant to an issue is permissible.

Discussion

"A trial court has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary" (Nineteen Eighty-Nine, LLC v Icahn, 155 AD3d 566, 569 [1st Dept 2017] [internal quotation marks omitted]). "The trial court has the authority, if not the responsibility, to control the sequence of the trial. CPLR 4011 provides that the court may determine the sequence in which the issues are to be tried and otherwise regulate the conduct of the trial in order to achieve a speedy and unprejudiced disposition of the matters at issue" (Kaufman v Kaufman, 189 AD3d 31, 53 [2d Dept 2020]).

The Court of Appeals has stated:

A trial court is not without power to ensure the orderly and fair administration of justice merely because a particular item of evidence is technically admissible. Although there exist general rules for the conduct of trials, deviation from these rules may be necessary to fit the circumstances of a particular case. Indeed, the power to permit deviation is an integral part of the Trial Judge's function. The court often has before it complex litigation and is duty bound to assure fairness and avoid unnecessarily protracted or confusing presentation of evidence. This power to control the case necessarily is of a discretionary nature, and its exercise is not reviewable save for a clear abuse of discretion (see Richardson, Evidence [10th ed--Prince], § 459, pp 449-450). (Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]; see Cheathen v Ostrow, 100 AD3d 819 [2d Dept 2012]).

"[W]ell-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury" (People v Powell, 27 NY3d 523 [2016] [internal quotation marks omitted], quoting Holmes v South Carolina, 547 US 319, 326 [2006]). "Every precaution must be taken lest [certain testimony] spill over its barriers and distort the jury's contemplation of the determinative and critical evidence" (People v Standard, 32 NY2d 143, 146 [1973] [internal quotation marks omitted]).

Inflammatory evidence of no probative value and counsel's remarks appealing to the juror's bias, prejudice, or passion are improper (see Tehozol v Anand Realty Corp., 41 AD3d 151, 152 [1st Dept 2007]). "Appeals to prejudice or passion, and the statement of facts neither proved nor presumed, have no place in a trial conducted according to the rules of the common law. The statement in question was calculated to arouse prejudice, and lead the jury away from the evidence." (Cattano v Metropolitan St. Ry. Co., 173 NY 565, 571 [1903]).

When it comes to nomenclature in testimony and attorney statements, where the usage of specific nicknames is challenged as unfairly prejudicial, it is the criminal law which has produced much case law on the issue. In People v Collier (114 AD3d 1136 [4th Dept 2014]), it was held that references to the defendant's nickname, "Killer," by two prosecution witnesses and by the prosecutor five times during summation was highly prejudicial and had minimal, if any, probative value inasmuch as the witnesses knew defendant by his given name. The prosecutor's reference to "Killer" constituted an improper appeal to the jury to consider the nickname as evidence that the defendant committed murder (id. at 1137).

Usage of a nickname might be improper but the evidence adduced at trial so heavily weighted toward guilt that the usage was harmless:

At a pretrial Sandoval hearing, the prosecutor informed the court of his concern that his witnesses knew defendant by the street name, "Murder Mike", and that while he would not bring out defendant's sobriquet on his direct examination he sought a ruling allowing the introduction of the name if defense counsel challenged a witness's testimony as to how well he knew defendant. Defense counsel suggested that the witnesses refer to defendant as Mike. The trial court permitted testimony as to the full name, stating, "Whatever his nickname is, that's his nickname. If a witness testifies he knew him as Mike Murder, so be it." Defense counsel objected on the ground of prejudice but was overruled. The name "Murder Mike" was elicited on numerous occasions during the direct examination of Ginel. Contrary to the People's argument, the issue is preserved.

It is clear that the nickname "Murder Mike" was only marginally relevant to Ginel's testimony identifying defendant as the shooter and its probative value outweighed by the danger of undue prejudice. The witness could just as easily have referred to defendant as "Mike" rather than "Murder Mike." Thus, "the purpose served by the challenged testimony could have been achieved without eliciting the prejudicial detail." (People v Blanchard, 83 AD2d 905, 906, appeal dismissed 56 NY2d 648.) The error in allowing testimony, in this murder case, of the nickname "Murder Mike" was further exacerbated by the prosecutor's summation in which he stated, "For what reason on earth would someone come in here and say Number 1, the defendant's name is Murder Mike and Number 2, he did shoot him. That's insane to think it's anything but accurate."

Since, however, there was overwhelming proof of defendant's guilt "provided by an eyewitness who recognized him at the scene of the crime and had an ample opportunity to observe him before, during and after the shooting" (People v Carter, 166 AD2d 660, 661, lv denied 77 NY2d 837; see, People v David, 243 AD2d 486, 487, lv denied 91 NY2d 871), and there is no "significant probability" that defendant would have been acquitted had the error, which was evidentiary in nature and not of constitutional dimension, not occurred, we find the error to have been harmless. (People v Crimmins, 36 NY2d 230, 242.) (People v Santiago, 255 AD2d 63, 65-66 [1st Dept 1999].)

On the other hand, there is case law holding that the reference to defendants by their street names was not so prejudicial as to warrant a reversal of conviction:

• Next, defendant argues that County Court erred in permitting the People to refer to him by his street name, Mafia, and to elicit testimony using that name. These references occurred in the opening statements and during the testimony of the police officers involved in the ongoing drug investigations and the controlled buy; the officers knew defendant only by his street name from confidential sources and first learned his identity after he was arrested. As defendant's street name was relevant to his identity and he was known to and identified by witnesses by that name, we cannot conclude that the court abused its discretion in permitting its use during trial while striking any reference to it from the indictment, although the court should have instructed the jury that it could not consider his street name as any evidence of guilt of the crime charged (see People v Hoffler, 41 AD3d 891, 892-893 [2007], lv denied 9 NY3d 962 [2007]; see also People v Franqueira, 143 AD3d 1164, 1169 [2016]; People v Hernandez, 89 AD3d 1123, 1125-1126 [2011], lv denied 20 NY3d 1099 [2013]). (People v Cummings, 157 AD3d 982, 986 [3d Dept 2018].)

• Defendant contends that three evidentiary rulings by County Court impeded his right to a fair trial. Addressing first the admission of defendant's street name throughout the trial, it has been held that where it is relevant to identify a perpetrator, it will be admissible at the court's discretion (see People v Crowder, 2 AD3d 454, 455 [2003], lv denied 2 NY3d 739 [2004]; People v Candelario, 198 AD2d 512, 513 [1993], lvs denied 83 NY2d 803, 965 [1994]). Here, neither Drabik, who arranged the first two controlled buys with defendant, nor the police knew defendant's proper name until the third attempted buy. Moreover, throughout the audio and video surveillance, defendant was only referred to by his street name, making his alias highly probative in identifying him as the perpetrator (see People v Crowder, supra at 455; People v Candelario, supra at 513). While the alleged homicide of Drabik shortly before defendant's trial was the subject of significant media coverage, County Court properly concluded that with the limiting instructions given and the possibility of jury confusion that could be created by a redacted version of the audio tapes, the People should be permitted to use defendant's street name during the trial. Under these circumstances, there was no abuse of discretion in denying a mistrial on this basis (see People v Ortiz, 54 NY2d 288, 292 [1981]; People v Durant, 6 AD3d 938, 941 [2004], lv denied 3 NY3d 639 [2004]). (People v Hoffler, 41 AD3d 891, 892-893 [3d Dept 2007].)

• Defendant failed to preserve his argument that he was deprived of a fair trial when—at trial—County Court allowed the People, and for that matter, defense counsel, to use his nickname "Haze" and occasionally other parties' nicknames (see CPL 470.05 [2]). In any event, given that defendant's nickname is not inherently prejudicial in nature, that his nickname was probative of his identity as he was known and identified by many of the witnesses by that name, and that County Court instructed the jury that it could not consider his nickname as any evidence of guilt to the crimes charged, we conclude that the use of defendant's nickname did not deprive him of a fair trial (see People v Hoffler, 41 AD3d 891, 892-893 [2007], lv denied 9 NY3d 962 [2007]; People v Crowder, 2 AD3d 454, 455 [2003], lv denied 2 NY3d 739 [2004]; cf. People v Bellamy, 26 AD3d 638, 640-641 [2006]; People v Lauderdale, 295 AD2d 539, 540 [2002]). (People v Hernandez, 89 AD3d 1123, 1125-1126 [3d Dept 2011].)

• Defendant further argues that County Court erroneously permitted the use at trial of his street name, Molly, and should have granted his application for a mistrial and subsequent motion to set aside the verdict upon that basis. There is nothing "inherently prejudicial" in that moniker—which has innocent as well as unsavory meanings and could easily be a diminutive of defendant's given name—and it was probative to the disputed question of identity in that Brunson only knew defendant by that name (People v Smith, 157 AD3d 978, 979 [2018], lv denied 31 NY3d 1087 [2018]). Accordingly, its use did not deprive defendant of a fair trial, and County Court did not abuse its discretion in permitting that use (see People v Smith, 157 AD3d at 979; People v Hernandez, 89 AD3d 1123, 1125-1126 [2011], lv denied 20 NY3d 1099 [2013]; People v Candelario, 198 AD2d 512, 513 [1993], lv denied 83 NY2d 803 [1994]).

In determining the issue posed by Defendant Uber's motion in limine, the Court also takes into account the habits of society in using words and names, that people's usage of words and names varies over time, and that the appellations assigned to new innovations, products, and services may undergo change as they enter mainstream verbiage.

"A much more common form of mistake is as to the meaning of words and expressions. Both parties know with accuracy the words used but understand them differently. Either party may inadvertently or ignorantly use words that by common usage do not express his meaning and intention. Either party may inadvertently or ignorantly give to another's words a meaning that the other did not intend or that may not accord with common usage." (Rosiny v Schmidt, 185 AD2d 727, 743 [1st Dept 1992] [internal quotation marks omitted] [contract dispute].) "[D]escriptive words or words of common speech, may, by reason of their use and association with a particular enterprise, acquire a special significance with the general public or a segment thereof, and may become generally known and referred to as the title or name for such enterprise" (Anti-Defamation League of B'nai B'rith v American Italian Anti-Defamation League, 54 Misc 2d 830, 833 [Sup Ct, NY County 1967] [appropriation of corporate name alleged]).

Certain words are descriptive and as such are in the public domain; hence, they cannot be appropriated for exclusive use (see Johnson Chem. Co. v Safeguard Chem. Corp., 70 AD2d 585 [2d Dept 1979] ["La Bomba" and "La Super Bomba" as terms for insecticides]). "[W]hile ideas which reflect genuine novelty and invention are fully protected against unauthorized use, ideas which are not novel are in the public domain and may freely be used by anyone with impunity" (Paul v Haney, 183 AD2d 44, 52 [2d Dept 1992] [copyright infringement alleged]). "Words of common speech, like glad, are in the public domain, available to all. Only when by reason of use and association with particular goods or a particular trade or business may they acquire a special or secondary meaning to have protection." (Schwartz v Hampton, 30 Misc 2d 837 [Sup Ct, NY County 1961] [trade name appropriation alleged].)

Admittedly, the Court, in the exercise of its "broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and [ ] admonish counsel and witnesses when necessary" (Nineteen Eighty-Nine, LLC v Icahn, 155 AD3d at 569), could direct Plaintiff and her counsel to avoid using the word "Uber" in describing the driver of the offending vehicle or the vehicle itself, or the term "transportation company." In exercising its discretion, the Court must consider whether usage of these words by a witness or counsel is so prejudicial to Uber because it will confuse, mislead, or distort the jury's contemplation of the determinative and critical evidence (see People v Powell, 27 NY3d 523; People v Standard, 32 NY2d at 146; Cattano v Metropolitan St. Ry. Co., 173 NY at 571).

Review of criminal law on the use of nicknames reveals that unless a nickname is no inflammatory (see People v Collier, 114 AD3d 1136; People v Santiago, 255 AD2d at 65-66), reference to it as a means of identifying a defendant is acceptable, especially where there is a limiting instruction given to the jury (see People v Rashid, 166 AD3d at 1384; People v Cummings, 157 AD3d at 986; People v Hernandez, 89 AD3d at 1125-1126; People v Hoffler, 41 AD3d 891, 892-893). The Court has no hesitancy in importing this case law into the civil side of the law, particularly in light of the consequences being potentially more severe in a criminal prosecution.

The history of the consumer marketplace is replete with product names which were trademarked but fell into broader usage to describe a product regardless of its manufacturer, witness the progression of the trademarked names Band-Aid, SCUBA, and Scotch Tape into generic nouns. Word usage evolves and the lexicon of the layperson becomes enhanced with the migration of trade names into the vernacular.

Terms with the word "Uber" in them have taken on certain connotations in the public's mind which associate them with arranging for a ride by hailing a vehicle through the Uber ride-hailing app. "Uber car," "Uber vehicle," "the Uber," and "an Uber" are used in everyday life now to describe the vehicle carrying people as passengers who procured a ride via the Uber app. It does not necessarily mean that Uber owns the vehicle or is the employer of the driver. "Uber driver" and "Uber's driver" are frequently used to describe the driver who responded to a person's hailing a vehicle through the Uber app. Calling someone an Uber driver does not necessarily mean that he or she is an employee of the Uber company.

There were two vehicles in the subject accident: the one in which Plaintiff was a passenger which was operated by a family member and the other one, driven by Defendant Soe Myint while logged into the Uber app. To prohibit a witness from using these terms which contain the word "Uber" in them and to force the witness to think before answering questions on the witness stand about the implications of their answer may very well affect their ability to provide honest and candid answers. Straitjacketing a witness into a verbal vise in describing Defendant Soe Nyunt or the vehicle he operated is not the optimum solution for the concern which Defendant Uber brings forth to the Court. Any potential confusion on the part of the jury can be addressed with a limiting instruction.

As for "transportation company," the Court believes that this generic term is understood by people nowadays as referring to any company which either operates or arranges for transportation. The term is not far off from "transportation network company," which is a statutory term (see Vehicle & Traffic Law § 1691). Were a witness to use this term, the Court does not believe that Defendant Uber would be prejudiced.

Since attorneys are responsible to the Court during their appearances in the courtroom, imposing a prohibition on the usage of certain terms, in contrast to witnesses, is more palatable. Presumably Plaintiff's counsel would use the mentioned "Uber" terms more than a witness would. The potential for overuse is present. Also, a jury might construe an attorney's usage of an "Uber" term as more authoritative than a witness's. It is possible that an attorney's usage of such a term might be construed as conveying that the vehicle was owned or controlled by Uber and that the driver was an employee. An attorney's usage of "transportation company" might be viewed differently by a jury than when a witness uses the term.

The resolution of Defendant Uber's concern lies in differentiating between attorneys and witnesses. Whereas the party's counsels are to be directed to substitute another term, perhaps "Mr. Soe," in place of "Uber driver" or "Uber's driver," the Court will not restrict any witnesses from usage of the latter terms. The parties' counsels are to be directed to substitute another term, perhaps "Mr. Soe's vehicle" or "Mr. Soe's car" in lieu of "Uber car," "Uber vehicle," or "the Uber."

When referring in general to a vehicle which can be hailed though the Uber app, counsels shall refrain from denoting it as "an Uber," and shall in place use another term, such as "a car hailed through Uber," "a vehicle hailed through Uber," "a hailed Uber," "an Uber contacted vehicle," or a term which does not connote that Uber owns or controls the vehicle. When referring in general to a driver logged in to the Uber app, counsels shall, instead of "Uber driver" or "Uber's driver," use a term which does not convey that a driver is an employee, such as "the Uber logged-in driver" or "the driver logged into Uber."

Any disputes over particular verbiage not addressed here can be dealt with as they arise.

In lieu of "transportation company," counsels shall use the term "transportation network company," which is a statutory term. No limitations should be placed on a witness in regard to this.

If the need arises, the Court will provide an instruction to the jury that they are not to construe the usage of a particular term as conveying the status between Defendant Soe Myint and Defendant Uber Technologies, Inc. because that is an issue for them, as the fact finders, to determine themselves.

Conclusion

It is hereby ORDERED that Defendant Uber Technologies, Inc.'s motion in limine for an order excluding the introduction at trial of any reference to (1) "Uber driver," (2) "Uber's driver," (3) "Uber car," (4) "Uber vehicle," (5) "the Uber," (6) "an Uber," or (7) "transportation company" is determined as follows:

(1) The Court shall not preclude, prohibit, or curtail any witness when testifying, with respect to their usage of the aforesaid terms.

(2) In referring to Defendant Soe Myint, the parties' counsels are directed not to use the terms "Uber driver" or "Uber's driver," but in place thereof shall use a term suggested by the Court or another term which does not convey that Defendant Soe Myint was an employee of Defendant Uber Technologies, Inc.

(3) In referring to the vehicle Defendant Soe Myint operated, the parties' counsels are directed not to use the terms "Uber car," "Uber vehicle," "the Uber," or "an Uber," but in place thereof shall use a term suggested by the Court or another term which does not convey that Defendant Soe Myint's vehicle was owned or controlled by said Defendant.

(4) In referring in general to a driver logged in to the Uber app, counsels are directed not to use the terms "Uber driver" or "Uber's driver," but in place thereof shall use a term suggested by the Court or another term which does not convey that a driver is an employee of Uber Technologies, Inc.

(5) In referring in general to a vehicle which can be hailed though the Uber app, the parties' counsels are directed not to use the terms "Uber car," "Uber vehicle," "the Uber," or "an Uber," but in place thereof shall use a term suggested by the Court or another term which does not convey that a vehicle is owned or controlled by said Defendant.

(6) The parties' counsels are directed not to use the term "transportation company," but shall use in its place, "transportation network company."

FOOTNOTES

1.   . The issue of whether Uber and Lyft, the other well known transportation network company, are vicariously liable for negligence of drivers who are logged to the respective ride-hailing app, has been percolating in the New York courts for years, with many trial courts having issued decisions. The Court has been informed that determinations on the specific issue are pending from the Appellate Division.

Aaron D. Maslow, J.