The Metropolitan Transportation Authority is asking a judge to disqualify and sanction an attorney representing a woman who lost two limbs after she was hit by a subway train, arguing that the attorney broke ethics rules when he confronted an MTA official in a town hall meeting.
The MTA claims that David Roth of Roth & Roth, who represents Luisa Harger da Silva in her personal injury suit against the authority, broke the “no contact” rule when he engaged New York City Transit Authority president Andy Byford about safety improvements to subway platforms on Aug. 21 at a public meeting regarding the authority’s Fast Forward Plan and that he engaged in fraudulent conduct by not identifying himself as Harger da Silva’s lawyer.
But an attorney for Roth has fired back in court papers that the MTA and its counsel falsely claimed that Roth subjected Byford to a “Perry Mason-like moment” and used the public meeting to cross-examine Byford—Roth was exercising his First Amendment rights at the town hall and expressing his concern about safety on the subways, not discussing his client’s case, he alleges.
Pery Krinsky, the ethics attorney defending Roth in the MTA’s motion to disqualify, also said Roth was under no ethical obligation to identify himself as Harger da Silva’s lawyer at the town hall.
Additionally, Krinsky argued, the MTA is using the motion to disqualify in Harger da Silva’s case, which was filed in the U.S. District Court for the Eastern District of New York, to delay three unrelated lawsuits filed in state Supreme Court against the authority in which Roth is representing riders who allege that they were injured crossing the gap between a subway train and a platform.
The motion to disqualify is pending before Magistrate Judge Vera Scanlon of the Eastern District of New York.
Smith, Mazure, Director, Wilkins, Young & Yagerman attorneys Mark Yagerman, Kenneth Lange, Joel Simon, Evan Yagerman and Marcia Raicus represent the MTA in the suit. Lange declined to comment on the case.
Harger da Silva, a Brazilian architectural student, was visiting her boyfriend in New York City in 2016. The couple was waiting on a train at the Atlantic Avenue station in Brooklyn when Harger da Silva fainted and fell into a track bed as a northbound B train was pulling into the station.
Harger da Silva lost her left arm and left leg as a result of the accident. In her suit, she alleges that, since 2002, between 450 and 700 people have been killed by getting struck by subway trains and that about 1,500 more have been injured.
“As a result of the negligence of the defendants, plaintiff was dismembered, her life altered, her ability to enjoy life was greatly diminished, and she continues to suffer daily as a result of the injuries she suffered,” Harger da Silva alleges.
The deaths and injuries, including her own, could have been prevented if the MTA had installed edge doors on subway platforms, she alleges in her suit. There are platform edge doors in place on the AirTrain, which is operated by the Port Authority of New York and New Jersey and provides service to the John F. Kennedy International Airport; they are also used in transportation systems in other cities across the world, including Paris and Seoul, South Korea.
For years, MTA officials have given lip service to proposals to install platform doors—in 2007, officials discussed the possibility of installing them on the new Second Avenue line, but the plan did not materialize.
According to excerpts of a transcript of the MTA town hall that is the subject to the authority’s motion to disqualify Roth, Roth told Byford that his concern about straphangers’ safety is rooted in the fact his mother is blind, noting that no one has been killed or maimed on the AirTrain.
“I felt compelled to come here today because in your plan to modernize, you’re not taking … platform edge safety into your plan,” Roth said to Byford, according to court papers.