Motion-Secondary: Mercedes Medina Ruiz v. New York City Transit Authority, Metropolitan Transportation Authority, The City Of New York, New York City Department Of Transportation

On January 16, 2019 a Motion-Secondary was filed involving a dispute between Mercedes Medina Ruiz, and Metropolitan Transportation Authority, New York City Department Of Transportation, New York City Transit Authority, The City Of New York, for Torts - Other (Municipal Liability) in the District Court of New York County.

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FILED: NEW YORK COUNTY CLERK 07/30/2019 08:33 PM INDEX NO. 150444/2019
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
- ¬________,..-----------------
__________-----------------X

MERCEDES MEDINA RUIZ,
AFFIRMATION IN SUPPORT

Plaintiff(s),
Index No: 150444/2019
- against - File No: 2019-030146

NEW YORK CITY TRANSIT AUTHORITY, Return Date: September 6, 2019
METROPOLITAN TRANSPORTATION AUTHORITY,
THE CITY OF NEW YORK AND NEW YORK CITY

DEPARTMENT OF TRANSPORTATION,

Defendant(s).

---------------------------------------¬_--------------------------¬___-X

ANTHONY BILA, an attorney admitted to practice in the State of New York and

an Assistant Corporation Counsel of the City of New York affirms the truth of the following

under the penalties of perjury pursüunt to CPLR § 2106 upon information and belief based upon

the records maintained in this office:

1. This affirmation and annexed exhibits are submitted in support of the motion

of Defendant New York City Department of Transportation (hereinafter "DOT") which seeks an

Order pu1wount to CPLR § 3211(a)(7) dismissing the plaintiff's Complaint and any cross-claims

against the Defendant DOT, and striking the name of DOT from the caption of this action, on the

grounds that plaintiff fails to state a cause of action against DOT, as it is not an entity ameñable

to suit.

FACTS AND RELEVANT PROCEDURAL HISTORY

2. The instant action has been brought to recover for personal injuries allegedly

having been sustained on behalf of Plaintiff Mercedes Medina Ruiz ("plaintiff") on October

19th, 2017 at 12:00 PM. Plaintiff alleges that while exiting the northbound 157th Street subway

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station, located at the intersection of West 157th Street and Broadway, in the County, City and

State of New York, as she was walking through the emergency exit labeled as UR179SG1, the

door slammed causing plaintiff to sustain personal injuries. See, Notice of Claim, ¶ 3, annexed

hereto as Exhibit "A". Plaintiff filed a Notice of Claim with the Office of the Comptroller on or

about January 16, 2018. Id. On or about January 16, 2019, plaintiff commenced this action by

obtaining an index number and e-filing a Summons and Complaint with the New York County

Clerk's office, which was served upon the Office of the Corporation Counsel on or about April

25, 2019. (Exhibit "B"). On or about June 11, 2019, the Office of the Corporation Counsel

interposed an Answer on behalf of the Defendants City of New York (hereinafter "City") and

DOT. he, Exhibit "C". Notably, the Co-defendant New York City Transit Authority has

assumed the defense of the City in this matter, pursuant to the Lease Agreement with the City,

"D"
relating to subway property. Annexed hereto as Exhibit is a Verified Answer on behalf of

the Co-defeñdañts New York City Transit Authority, Metropolitan Transportation Authority and

the City Of New York interposed by the office of Lawrence Heisler. Annexed hereto as Exhibit

"E"
is a Verified Amended Answer on behalf of the Defendant DOT.

3. It is respectfully submitted that any assertion in opposition to the instant

motion to dismiss pursuant to CPLR § 3211(a)(7) is procedurally improper as it was served after

defendants'
issue was joined is without merit. CPLR § 3211(e) provides that the motion against

a claim under CPLR § 3211 must be made within the responding time. However, pursuant to

CPLR § 3211(a), these time limits do not apply to subdivision (a)(7) (insufficiency of the cause

of action). In M. D. v. Pasadena Realty Co., 300 A.D.2d 235 (1st Dept. 2002) the court held as

follows:

Judicial economy is not promoted by requiring the parties to try a

case that is appropriate for summary disposition on the ground that

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it fails to state a cause of action. Presumably, this is why the rules
permit a motion to dismiss the complaint on this basis to be
brought at any time (CPLR 3211 [a] [7]; [e].... (further citations
omitted).

4. Notably, in Rozell v. Milby, 98 A.D.3d 960 (2d Dept. 2012), the Court

dismissed an action against the defendants on the pleadings pursuant to CPLR § 3211(a)(7)

involving governmental action, where the Complaiñt did not allege a special duty. Id. at 961.

Here, in the present matter, there can be no liability on the part of the Defendants DOT, Parks,

defendants'
and Landmark Preservation Commission. Thus, the motion to dismiss in the instant

action has been properly made.

5. Under CPLR § 3211(a) (7), a party may move for dismissal of one or more

causes of action asserted agaiñst him on the ground that the pleading fails to state a cause of

action. On such a motion, the Court is concerned with whether the plaintiff has a cause of action

and not whether he has properly stated one. Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 636

(1976). The Court will liberally construe the pleadiñgs in the plaintiffs favor, accept the facts as

true, and determine whether the facts alleged fit within any cognizable theory. h Cron v.

Hargro Fabrics, 91 N.Y.2d 362, 366 (1998).

6. However, a court is not obliged to accept as true legal conclusions or factual

allegations that are either inherently incredible or flatly contradicted by evidence. h Maas v.

Comell Univ., 94 N.Y.2d 87, 91 (1999). Even in the case of perfectly pleaded causes of action, a

movant may, using permissible proof, go behind the pleading to establish that itlacks merit. See

Rovello, 40 N.Y.2d 633; see also Carnival Co. v. Metro-Goldwyn-Mayer, Inc., 23 A.D.2d.75, 77

(1st Dept. 1965). However, "bare legal conclusions are not presumed to be true and are not

inference."
accorded every favorable Kupersmith v Winged Foot Golf Club, Inc., 38 A.D.3d 847,

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848 (2d Dept. 2007). See also, McKenzie v Meridian Capital Group, LLC, 35 AD3d 676 (2d

Dept. 2006); Morris v. Morris, 306 A.D.2d 449,451 (2d Dept. 2003). To that end, CPLR §

3211(c) allows the movant to submit any evidence that could properly be considered on a motion

for summary judg-cnt. In ruling on a motion under CPLR §3211(a)(7) to dismiss a complaint

for failure to state a claim, the Court must evaluate whether the complaint gives sufficient notice

of the occurrences or series of occurreñces intended to be proved and whether the requisite

elemeñts of any known cause of action known to our law can be discerned from its averments.

Pace v. Perk, 81 A.D.2d 444, 449 (2d Dept. 1981). In the absence of any factual allegations

supporting a plaintiff's illusory or conclusory allegati0ñs, the complaint must be dismissed for

failure to state a cause of action. Jacobson v. Chase Manhattan Bank, N.A., 174 A.D.2d 709 (2d

Dept. 1991).

7. Notably, the Office of the Corporation Counsel Office currently only appears

on behalf of the Defendant DOT, as the office of Lawrêñce Heisler represents the City of New

York in this matter, due to the Lease Agreement regarding subway property. In the present

matter, the Defendant DOT respectfully submits that plaintiff's .Complaint and any cross-claims

should be dismissed solely against DOT, with prejudice, as detailed below, the aforementioned

defendant is not an entity capable of being sued, and as such, plaintiff fails to state a cause action

against the aforementioned defendant.

ARGUMENT
THE COMPLAINT AGAINST THE DEFENDANT NEW
YORK CITY DEPARTMENT OF TRANSPORTATION
MUST BE DISMISSED, AS IT IS NOT AN ENTITY
AMENABLE TO SUIT.

8. Notably, the Amended Answer interposed on behalf of Defendant DOT raises

the following affirmative defenses:

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10. The Court lacks subject matter jurisdiction - the defendant is
not a sue-able entity;

11. Failure to state a claim - the defendant is not a sue-able entity

"E,"
(Exhibit ¶¶ 10, 11).

9. The New York City Charter establishes the agencies of the City of New York,

including the Defendant DOT. New York City Charter §§ 2901 et seq. Section 396 of the New

penalties"
York City Charter, entitled "[a]ctions and proceedings for recovery of states "[a]11

actions and proceedings for the recovery of penalties for the violation of any law shall be brought

in the name of the City of New York and not in that of any agency, except where otherwise

law."
provided by Thus, pursuant to New York City Charter § 396, agencies of the City are not

legal entities for the purpose of suit and therefore should not be named as a party in the caption.

See, ag., Funt v. Human Resources Admin. of the City of New York, 68 A.D.3d 490, (1st Dept.

2009) (holding that the Human Resources Administration was not a proper party and also

dismissing the action against the agency as the action was not commenced within the one year

and ninety day statute of limitations pursuant to GML § 50-i); Siino v Department of Educ. of

the City of N.Y., 44 A.D.3d 568 (1st Dept. 2007) (holding that the Department of Investigation is

not a proper party). "The New York City Department of Transportation is a department of

396)."
the City of New York, and is not a separate legal entity (see NY City Charter § Khela

v City of NY, 91 A.D.3d 912, 913-914 (2d Dept. 2012). (Emphasis added). Thus, DOT is an

improper party in this matter

10. Inasmuch as the Defendant DOT is an agency of the City of New York, said

agencies are not amenable to a suit, and the action against it must be süñññarily dismissed. See

alsso,Lauro v. Charles, 219 F.3d 202, 205, (2d Cir. 2000); see also Bailev v. New York City

Police Dep't, 910 F. Supp. 116, 117 (E.D.N.Y. 1996) ("Ithas been widely held that because the

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New York City Police Department is an agency of the City of New York, it cannot be sued

under Waheed v. of New York Gun & License No. 07-CV-
independently § 1983.); City Div.,

179 (SJF), 2007 U.S. Dist. LEXIS 12010, at *3-4 (E.D.N.Y. February 6, 2007); Wesley v. City

of New York, No. 05 Civ. 9227(DLC), 2006 U.S. Dist. LEXIS 73270, at *13-14 (S.D.N.Y.

October 10, 2006); Kalphat v. 105th Precinct, Emergency Squad Unit, CV-06-3728 (BMC),

2006 U.S. Dist. LEXIS 59141, at *4 (E.D.N.Y. August 21, 2006); Flemming v. New York City,

2003 U.S. Dist. LEXIS 1929, No. 02 Civ. 4113 (AKH) (S.D.N.Y. February 10, 2003).

11. Additionally, in Curry v. City ofNew York, the Court held as follows:

[T]he NYPD, the ECB [New York City Environmental Control

Board}, the DOF [New York City Department of Finance], the
DCA [New York City Department of Consumer Affairs] and the
New York City Property Clerk's Office are all agencies of the City
of New York and are not suable entities. Lauro v. Charles. 219
F.3d 202, 205 n. 2 (2d Cir. 2000); McCray v. New York City
Police Deo't No. 99-CV-7035, 2008 U.S. Dist. LEXIS 5368, 2008
WL 207845, at *1 (E.D.N.Y. Jan. 24, 2008) (citing cases); N.Y.C.

Charter, Ch. 17, § 396. Since any claims against these agencies are

properly brought against the City of New York, the NYPD, the

ECB, the DOF, the DCA and the New Yoik City Property Clerk's
Office are all dismissed from this action.

2011 U.S. Dist. LEXIS 3899, at *9-10, 10-CV-5847 (SLT) (LB) (E.D.N.Y., January 13, 2011).

12. Notably, in McCaig v. City of New York, Index No. 150467/2016 (Sup. Ct.,

New York Co., July 12, 2016) (Hon. James E. d'Auguste), the Court granted a motion to dismiss

on behalf of DOT, the New York City Department of Parks and Recreation and the New York

City Landmark Preservation Commission "as they are not amenable to suit". A copy of the

McCaig Order and Decision is annexed hereto as Exhibit "F".

13. Additionally, the Court Denied a plaintiff's motion to reargue an Order

Decision which granted DOT's motion to dismiss on the grounds that is a non-jural entity in

Graham v. New York City Dept. of Transportation, Index No. 152118/12 (Sup. Ct., New York

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Co., June 6, 2013) (Hon. Margaret A. Chan). (A copy of the Graham, Order and Decision is

annexed hereto as Exhibit "G").

14. Furthermore, in Moser v. City Of New York, the Court held as follows:

The Department of Transportation is not a jural entity capable
of being sued or suing. Rather, DOT is a line agency of the

City of New York which remains a defendant.

Index No. 153540/2012 (Sup. Ct., New York Co., January 3, 2013) (Hon. Michael Stallman).

(Emphasis added). A copy of the Moser Order and Decision is annexed hereto as Exhibit "H".

15. Notably, the Court in Sharpe v Shabbat LLC, 2013 NY Slip Op 30272(U),

(N.Y. Sup. Ct. February 4, 2013), dismissed an action commenced against the New York City

Department of Housing Preservation and Development ("HPD"), an agency of this City of New

York, as DOT in the present matter. In Sharpe, the Court dismissed the plaintiff's Complaint

against HPD holding in relevant part:

It iswell settled that HPD is an agency within a public corporation,
the City of New York (see Rosenbaum v. City of New Yo ;, 8

N.Y.3d 1, 861 N.E.2d 43, 828 N.Y.S.2d 228 [2006]). "Under New
York law, departments which are merely administrative arms of a

municipality do not have a legal identity separate and apart from
sued"
the municipality and cannot sue or be (Hall v. City of White

Plains, 185 F. Supp.2d 293, 303 (S,D.N.Y. 2002); see also New
York City Charter, Ch. 17 § 396; Lauro v. Charles, 219 F.3d 202,
205 n. 2 (2nd Cir. 2000)).

In the case at bar, since HPD is not an entity liable to suit as it is an

administrative branch of New York City. Indeed, this is even more

obvious by plaintiffs failure to sue the City of New York proper.

2013 NY Slip Op 30272(U) at **4. (A copy of the Court's Order and Decision in

Sharpe, is annexed hereto as Exhibit "I".

16. In the present matter, the Defendant DOT is not a legal entity capable of being

sued, and therefore should not be named as a party to a lawsuit. Accordingly, it is respectfully

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submitted that the plaintiff's Complaint and any cross-claims against DOT, should be dismissed,

with prejudice, and that the name of DOT be removed from the caption of this matter.

WHEREFORE, it is respectfully requested that the motion of the Defendant

New York City Department of Transportation, be granted in its entirety and for such other and

further relief as this Court deems just and proper.

Dated: New York, New York

July 30, 2019

ANTHONY BILA
Assistant Corporation Counsel

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Index No. 150444/2019

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK

MERCEDES MEDINA RUIZ,

Plaintiff(s),

- against -

NEW YORK CITY TRANSIT AUTHORITY,
METROPOLITAN TRANSPORTATION AUTHORITY, THE
CITY OF NEW YORK AND NEW YORK CITY
DEPARTMENT OF TRANSPORTATION,

Defendant(s).

REQUEST FOR JUDICIAL INTERVENTION, NOTICE OF
MOTION, IN SUPPORT AND ANNEXED EXHIBITS

ZACHARY W. CARTER
Corporation Counsel of the City of New York

Attorney for Defendant NEW YORK CITY
DEPARTMENT OF TRANSPORTATION
100 Church Street
New York, NY 10007

Of Counsel: Anthony Bila
Tel: (212) 356-2751
File No. 2019-030146

Due and timely service is hereby admitted.

New York, N.Y. 2019 .
...................................; ..

........................................................................Esq.

Attorney for............................................................

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Case Info

Judge

J. Machelle Sweeting Track Judge’s New Case

Case No.

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Document Filed Date

July 30, 2019

Case Filing Date

January 16, 2019

County

Parties

BERKOWITZ, DAVID EVAN Attorney for the Defendant
BILA, ANTHONY Attorney for the Defendants
Counsel, Corporation Attorney for the Defendant
FINKEL, MATTHEW EVAN Attorney for the Defendant
FINKEL, MATTHEW EVAN Attorney for the Defendants
GOLDSTEIN, RYAN S Attorney for the Plaintiff
GUERRERO, ENRIQUE ONESIMO Attorney for the Plaintiff
MAZZALONGA, STEPHEN Attorney for the Defendant
Mercedes Medina ruiz Plaintiff
METROPOLITAN TRANSPORTATION AUTHORITY Defendant
NEW YORK CITY DEPARTMENT OF TRANSPORTATION Defendant
NEW YORK CITY TRANSIT AUTHORITY Defendant
THE CITY OF NEW YORK Defendant

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