Harger Da Silva v. New York City Transit Authority

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LUISA JANSSEN HARGER DA

SILVA,

Plaintiff,

MEMORANDUM AND ORDER

Case No. 17-CV-4550

-against-

NEW YORK CITY TRANSIT

AUTHORITY, METROPOLITAN

TRANSPORTATION AUTHORITY,

and RAQIA SHABAZZ,

Defendants.

Appearances: For the Defendants:

For the Plaintiff: ANDREW P. KEAVENEY

ELLIOT DOLBY SHIELDS Landman Corsi Ballaine & Ford P.C.

Roth & Roth, LLP 120 Broadway, 13th Floor

192 Lexington Avenue, Suite 802 New York, New York 10271

New York, New York 10016

BLOCK, Senior District Judge:

Plaintiff Luisa Janssen Harger Da Silva (“Plaintiff” or “Da Silva”) brought

negligence claims against Defendants New York City Transportation Authority

(“NYCTA” or “TA”), Metropolitan Transportation Authority (“MTA”)

(collectively “Transit Defendants”), and Raquia Shabazz (“Shabazz”) (collectively

“Defendants”) for injuries resulting from being struck by a subway train.

Defendants moved for summary judgment to dismiss the Complaint pursuant

to Federal Rule of Civil Procedure 56, which the Court denied in part. Da Silva v.

New York City Transit Auth., No. 17-CV-4550, 2025 WL 722967 (E.D.N.Y. Mar. 6,

2025). The Transit Defendants argued, inter alia, that they were entitled to New

York state law immunity on two bases: (1) that it was performing a government

function (“government function immunity”); and (2) that, even if not, it

nonetheless was entitled to qualified immunity because its decision had a

reasonable basis in safety and efficiency considerations.

The Court rejected each contention. It held that government function

immunity was inapplicable because, as a matter of law, the Transit Defendants

were acting in a proprietary capacity. It rejected the state law qualified immunity

contention because issues of fact precluded its grant.

Defendants then filed a notice of appeal as to both state law immunity

defenses, asserting that the Court’s refusal to grant summary judgment on these

immunities constituted a “final decision” under 28 U.S.C. § 1291 pursuant to the

collateral order doctrine. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985)

(explaining collateral order doctrine’s application to denial of federal qualified

immunity that turned on issue of law).

The circuit court lacks jurisdiction over an appeal absent “a final decision”

or some “other basis for immediate appeal,” like the district court certifying an

interlocutory appeal. Doe v. Waltzer, No. 24-2493, 2025 WL 733188, at *1 (2d Cir.

Mar. 7, 2025) (summary order). However, denial of summary judgment on an

immunity is only a “final decision” if the immunity provides “immunity from suit

rather than a mere defense to liability.” 1 Mitchell, 472 U.S. at 526–27 (emphasis in

original). Unlike federal qualified immunity—which provides immunity from

suit—both state law immunity defenses Transit Defendants invoked only provide

“an immunity from liability—as opposed to an immunity from suit— [and thus]

federal appellate jurisdiction does not lie under the collateral order doctrine.” In re

World Trade Ctr. Disaster Site Litig., 521 F.3d 169, 181–82 (2d Cir. 2008). In other

words, the Court’s denial of summary judgment on Transit Defendants’ asserted

immunities did not constitute a final decision under 28 U.S.C. § 1291. Appeal

therefore is improper and frivolous without the Court certifying an interlocutory

appeal.

I.

“[T]he cases construing the defense[s]” of both immunities Defendants’

claim––state law government function immunity and state law qualified immunity

––demonstrate that both provide only immunity from liability.2 In re World Trade

Ctr., 521 F.3d at 182. The Second Circuit, analyzing decisions by the New York

1 Throughout this opinion, the Court omits all internal quotation marks, footnotes, and citations,

and adopts all alterations, unless otherwise indicated.

2 “State substantive law governs the scope of immunity for state law claims, and federal law

determines the appealability of the district court’s order. . . . To determine the nature of the rights

conferred by a grant of immunity, a court must consider whether, under the law of the sovereign

that provides the immunity, those immunities are intended to be from suit, or just from liability.”

In re World Trade Ctr., 521 F.3d at 181.

State Court of Appeals, has specifically held that “discretionary function

governmental immunity is merely a defense to liability, rather than an immunity

from suit.” Id. at 187 (citing Brown v. State, 89 N.Y.2d 172, 192 (1996)). The same

applies to state law qualified immunity, which the Court of Appeals cited to in

describing those “defenses, sometimes referred to loosely as ‘immunities’” that

leave Defendants “amendable to suit.” Brown, 89 N.Y.2d at 192 (citing Weiss v.

Fote, 7 N.Y.2d 579 (1960)); see Turturro v. City of New York, 28 N.Y.3d 469, 486

(2016) (explaining that “the qualified immunity doctrine this Court recognized in

Weiss v. Fote” protects only against “liability”). These state law immunities are

thus not subject to the collateral order doctrine and their denial on summary

judgment is not a final decision.

II.

The district court may permit an appeal to the circuit court if it certifies “an

otherwise-non-final order” for interlocutory appeal pursuant to 28 U.S.C. §

1292(b), which the circuit then has discretion to accept. Waltzer, 2025 WL 733188,

at *1. The procedural sequence is critical: the appealing party must seek § 1292(b)

certification from the district court before filing its notice of appeal. Id. at *2.

Failure to do so may render the appeal frivolous and allow the district court to

“retain jurisdiction notwithstanding appeal.” Carroll v. Trump, 88 F.4th 418, 433

(2d Cir. 2023); see Burger King Corp. v. Horn & Hardart Co., 893 F.2d 525, 527

(2d Cir. 1990) (holding that “premature” notice of appeal from district court’s non-

final order “did not divest the district court of jurisdiction”).

Defendants have not sought to certify an interlocutory appeal. Even if they

had, the Court would not have granted the request.3 This case has been pending for

nearly eight years, fact disputes permeate the qualified immunity inquiry, and

established law supported by a century of precedent precludes government

function immunity. Da Silva, 2025 WL 722967, at *2–*4; see In re World Trade

Ctr. Disaster Site Litig., 503 F.3d 167, 171 (2d Cir. 2007) (affirming jurisdiction of

district court “to proceed with pretrial proceedings and a trial” after it refused to

certify interlocutory appeal of order denying summary judgment on New York

state law immunity defenses). Any other conclusion would undermine the

“divestiture of jurisdiction” rule4 and “the principle of judicial economy from

which it springs.” Carroll, 88 F.4th at 433–34; see U.S. v. Rodgers, 101 F.3d 247,

251–52 (2d Cir. 1996) (“We fail to see any efficiency in allowing a party to halt

3 “A district court may certify an interlocutory appeal of an order if the court determines that (1)

‘such order involves a controlling question of law’ (2) ‘as to which there is substantial ground for

difference of opinion’ and (3) ‘that an immediate appeal from the order may materially advance

the termination of the litigation.’” B&R Supermarket, Inc. v. Visa Inc., No. 17-CV-2738, 2025

WL 845109, at *2 (E.D.N.Y. Mar. 18, 2025) (quoting 28 U.S.C. § 1292(b)). “District courts have

unfettered discretion to deny certification for any reason, including docket congestion and the

system-wide costs and benefits of allowing the appeal, even where the three legislative criteria of

section 1292(b) appear to be met.” Id.

4 “As a general rule, once a notice of appeal has been filed, it confers jurisdiction on the court of

appeals and divests the district court of its control over those aspects of the case involved in the

appeal.” Kidder, Peabody & Co., Inc. v. Maxus Energy Corp., 925 F.2d 556, 565 (2d Cir. 1991)

(per curiam).

district court proceedings arbitrarily by filing a plainly unauthorized notice of

appeal which confers on this court the power to do nothing but dismiss the

appeal.”); Behrens v. Pelletier, 516 U.S. 299, 310–11 (1996) (recognizing dual

jurisdiction rule enabling “the district court to retain jurisdiction pending summary

disposition of the appeal” by deeming it frivolous, “thereby minimiz[ing]

disruption of the ongoing proceedings”).

III.

Accordingly, the Court shall retain jurisdiction, and the case shall proceed to

trial.

SO ORDERED.

_/S/ Frederic Block__________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

May 29, 2025