ESPINAL v. The City of New York, et al., Defendants. (2025)

Order, Supreme Court, New York County (Hasa A. Kingo, J.), entered February 3, 2025, which denied defendant Metropolitan Transportation Authority's (MTA) motion to dismiss the complaint and all cross-claims as against it, or, alternatively, for summary judgment dismissing the complaint and all cross-claims as against it, unanimously affirmed, without costs.

The MTA failed to establish its entitlement to dismissal of the complaint, as it failed to eliminate all triable issues of fact as to its liability for plaintiff's injuries (see Sanon v. MTA Long Is. R.R., 203 A.D.3d 773, 775, 164 N.Y.S.3d 175 [2d Dept. 2022]).  Although the MTA's functions with respect to public transportation are, as a matter of law, limited to financing and planning and do not include the operation, maintenance, and control of any facility (Delacruz v. Metropolitan Transp. Auth., 45 A.D.3d 482, 483, 846 N.Y.S.2d 160 [1st Dept. 2007]), the record offers no information as to the ownership of the allegedly defective metal grate on which plaintiff was injured.  The affirmation of an employee in the MTA's Real Estate Department was conclusory and failed to establish prima facie that the action should be dismissed as against the MTA. The employee failed to state exactly which databases he used, whether other databases were available, the terms he used to conduct the searches, as well as an account of how he conducted the searches.  Further, the employee did not include documentary proof to substantiate his assertion that his searches yielded no results (see CPLR 3212[b];  JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y.3d 373, 384–385, 795 N.Y.S.2d 502, 828 N.E.2d 604 [2005]).  As a result, at this stage of the litigation, the record is insufficient to absolve the MTA of liability, and further discovery is warranted (cf.  Robles v. City of New York, 235 A.D.3d 674, 675–676, 227 N.Y.S.3d 222 [2d Dept. 2025]).