In Guida v. Uber Technologies, Inc., No. 152107/2020, 2021 WL 781340, 2021 N.Y. Slip Op. 30573(U) (N.Y. Sup Ct, New York County Mar. 01, 2021), the court dismissed plaintiff’s claims for negligent hiring, supervision, and/or retention – based on plaintiffs’ allegation that that they were harassed and sexually assaulted by the defendant Jianmin Xu, an Uber driver – against Uber.
The court summarized the facts, and described Uber’s role in the context of this case, as follows:
Uber is a mobile application service that connects passengers with drivers that are licensed to operate taxis and other for-hire vehicles in New York City. The New York City Taxi and Limousine Commission (“TLC”) is the agency responsible for licensing and regulating New York City’s “for hire vehicles” as it defines them. TLC Rules § 59A-03(g). Xu was a For-Hire Vehicle driver licensed by TLC and subject to TLC requirements, which includes a criminal background search utilizing the applicant’s fingerprints and mandated training for drivers. TLC Rules § 59B-04. Additionally, Uber maintains that it conducts its own supplemental background check via a third-party background check service. In this case, Uber claims that Xu’s background check came back clear, and that, prior to the alleged incident, Uber had never **2 received any complaints or negative feedback about Xu’s conduct that would have put them on notice of any propensity on the part of Xu to commit acts of harassment or sexual assault.
The court explained and applied the law as follows:
With regard to the plaintiffs’ claims for negligent hiring, supervision, and/or retention, an essential element of such claims is that Uber knew or should have known of Xu’s propensity for the type of conduct that the plaintiffs claim Xu engaged in and caused them injury (see Shelia C. v Povich, 11 AD3d 120, 129-30 [1st Dept 2004]; Gomez v City of New York, 304 AD2d 374 [1st Dept 2003]). Absent this showing, dismissal is proper. In this case, the complaint clearly lacks any allegations that Uber knew of the propensity of Xu to engage in the conduct alleged. Accordingly, Uber is entitled to dismissal of the only claim asserted against it.
In opposition, the plaintiffs do not point to any factual allegations contained in the complaint that would demonstrate that Uber had knowledge of any propensity of Xu to engage in sexual harassment or assault. Instead, in his memorandum of law in opposition, plaintiffs’ attorney claims that the plaintiffs observed that Xu’s phone contained inappropriate sexual photos of women who were passengers in his car. Counsel for the plaintiffs argues that Uber must have had access to the photos because they were present and/or visible through Uber’s mobile application. Nothing remotely close to these allegations is pled in the complaint and there is no affidavit from the plaintiffs or anyone who would have had personal knowledge of the **3 alleged contents of Xu’s phone. These allegations are inadmissible and are of no evidentiary value because they are made in a memorandum of law written by an attorney with no personal knowledge of the facts (see Zuckerman v New York, 49 NY2d 557, 563 ). Because these claims are not in admissible form, they cannot be considered in opposition to the motion to dismiss. Again, nothing pled in the complaint itself, even if true, establishes or reasonably infers that Uber was aware or should have been aware of any propensity on the part of Yu to engage in the conduct alleged.
Furthermore, while it is possible, as the plaintiffs suggest, that discovery might reveal information such as other photos on Xu’s phone, which Uber might or might not have had access to, the plaintiffs have not established that any such information would establish knowledge of Yu’s propensity to commit sexual harassment or assault. Any belief in that regard by the plaintiffs is purely speculative and claims based on speculation or hopes as to what discovery might reveal are insufficient and must be dismissed (see Milosevic v O’Donnell, 89 AD3d 628, 629 [1st Dept 2011]).
Based on this, the court granted Uber’s motion to dismiss plaintiff’s cause of action against Uber for negligent hiring, supervision and/or retention.