Harger Da Silva v. New York City Transit Authority, 25-727

Plaintiff Luisa Janssen Harger Da Silva sued NYCTA, MTA (Transit Defendants), and an individual for injuries after being struck by a subway train, asserting negligence claims.
Transit Defendants moved for summary judgment invoking two New York state law immunities: discretionary (government function) immunity and state-law qualified immunity.
The district court denied summary judgment on both immunity defenses, finding government-function immunity inapplicable as a matter of law (Transit Defendants acted in a proprietary capacity) and that factual disputes precluded resolution of qualified immunity.
Defendants filed a notice of appeal arguing the denial was immediately appealable under the collateral order doctrine as a “final decision.”
The district court considered whether the denials were appealable and whether interlocutory §1292(b) certification had been sought before appeal.
The court concluded the state-law immunities at issue provide only immunity from liability (not immunity from suit), so their denial is not a final appealable order under 28 U.S.C. §1291; defendants also failed to seek §1292(b) certification.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of state-law government-function immunity is immediately appealable	Denied immunity should not block suit; Da Silva argued immunity was inapplicable	Transit Defendants argued denial is immediately appealable under collateral order doctrine	Denial is not appealable; government-function immunity is only a defense to liability, not immunity from suit
Whether denial of state-law qualified immunity is immediately appealable	Da Silva maintained factual issues defeat immunity	Transit Defendants argued state-law qualified immunity denial is final and appealable like federal qualified immunity	Denial is not appealable; state-law qualified immunity provides only immunity from liability
Whether district court must be divested of jurisdiction by premature notice of appeal	Plaintiff urged court to retain jurisdiction and proceed to trial	Defendants filed notice of appeal without §1292(b) certification seeking immediate appellate review	Court retains jurisdiction; appeal improper and potentially frivolous absent prior §1292(b) certification
Whether the court would have certified interlocutory appeal under §1292(b)	N/A (plaintiff opposed)	Defendants could have sought certification but did not; if sought, court would have denied based on case history, factual disputes, and settled law	Court states it would not have certified §1292(b); proceedings should continue to trial

Mitchell v. Forsyth, 472 U.S. 511 (U.S. 1985) (collateral order doctrine permits immediate appeal of federal qualified immunity denials)
In re World Trade Ctr. Disaster Site Litig., 521 F.3d 169 (2d Cir. 2008) (New York state discretionary-function immunity is a defense to liability, not an immunity from suit)
Brown v. State, 89 N.Y.2d 172 (N.Y. 1996) (New York decisions characterize discretionary-function immunity as a defense to liability)
Turturro v. City of New York, 28 N.Y.3d 469 (N.Y. 2016) (New York qualified-immunity doctrine protects against liability, not suit)
Behrens v. Pelletier, 516 U.S. 299 (U.S. 1996) (dual jurisdiction rule and procedures for appeals of immunity determinations)