The Supreme Court granted the motion.In support of their motion, the Authority defendants established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against them by demonstrating that they did not own, operate, maintain, or control the subject bus, that the subject bus was owned and operated by nonparty MTA Bus Company, and that the MTA is not vicariously liable for the torts of its subsidiaries such as MTA Bus Company (see Public Authorities Law § 1266[5] ; Fridman v. New York City Tr. Auth., 131 A.D.3d 1202, 1203, 17 N.Y.S.3d 467 ; Mayayev v Metropolitan Transp. Auth. Bus, 74 A.D.3d 910, 911, 904 N.Y.S.2d 84 ; Rampersaud v Metropolitan Transp. Auth. of State of N.Y., 73 A.D.3d 888, 888, 899 N.Y.S.2d 858 ; Emerick v. Metropolitan Tr. Auth., 272 A.D.2d 150, 150, 708 N.Y.S.2d 612 ). In opposition, the plaintiff failed to raise a triable issue of fact (see Fridman v. New York City Tr. Auth., 131 A.D.3d at 1203–1204, 17 N.Y.S.3d 467 ).
The MTA is entitled to summary disposition based on well-settled law. "[T]he functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility" (Delacruz v Metropolitan Transp. Authority, 45 A.D.3d 482, 483 [1st Dept 2007] [internal quotation marks and citations omitted])." It is also well-established that the MTA "... is not vicariously liable for the torts of its subsidiaries" (Fridman v New York City Tr. Auth., 131 A.D.3d 1202, 1203 [2d Dept 2015] [citations omitted]). MTA Bus, the owner of the bus implicated in the Accident, is a subsidiary of the MTA; thus, the MTA cannot be held vicariously liable for torts committed by MTA Bus (see Watkins-Bey v City of New York, 174 A.D.3d 553 [2d Dept 2019]).
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they were not proper parties to this action. The defendants established that Keyspan Corporation was merely a holding parent company (see generallyFridman v. New York City Tr. Auth., 131 A.D.3d 1202, 17 N.Y.S.3d 467 ; Serrano v. New York Times Co., Inc., 19 A.D.3d 577, 578, 797 N.Y.S.2d 135 ). Additionally, the defendants established that National Grid USA Service Company, Inc., merely provided services such as legal and accounting, and that it had no interest in the ownership, maintenance, or control of the subject manhole cover and the gas lines below it (see generallyFiero v. City of New York, 190 A.D.3d 822, 823–824, 140 N.Y.S.3d 602 ; Puzhayeva v. City of New York, 151 A.D.3d 988, 990, 58 N.Y.S.3d 92 ).
We modify. We disagree with the Supreme Court's determination denying that branch of the transit defendants' motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against the MTA. "Pursuant to the [New York] Public Authorities Law, the MTA (see Public Authorities Law § 1263 et seq. ) and the NYCTA (see Public Authorities Law § 1201 et seq. ) are separate public benefit corporations with different functions" ( Fridman v. New York City Tr. Auth., 131 A.D.3d 1202, 1203, 17 N.Y.S.3d 467 ). "It is well settled, as a matter of law, that the functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility" ( Cusick v. Lutheran Med. Ctr., 105 A.D.2d 681, 681, 481 N.Y.S.2d 122 ; seeSoto v. New York City Tr. Auth., 19 A.D.3d 579, 581, 800 N.Y.S.2d 419, affd 6 N.Y.3d 487, 813 N.Y.S.2d 701, 846 N.E.2d 1211 ).
The plaintiff was not entitled to relief pursuant to CPLR 305(c) for leave to amend the summons, complaint, and caption to name HMSB as a defendant instead of Hunter Mountain. Relief pursuant to CPLR 305(c) may be granted only where there is evidence that the correct defendant was served, albeit misnamed in the original process, and the correct defendant would not be prejudiced by the granting of the amendment (seeFridman v. New York City Tr. Auth., 131 A.D.3d 1202, 1204, 17 N.Y.S.3d 467 ; Associated Geriatric Info. Network, Inc. v. Split Rock Multi–Care Ctr., LLC, 111 A.D.3d 861, 861–862, 976 N.Y.S.2d 149 ; Smith v. Garo Enters., Inc., 60 A.D.3d 751, 752, 875 N.Y.S.2d 167 ). While CPLR 305(c) may be used to cure a misnomer in the description of a party defendant, it cannot be used after the expiration of the statute of limitations as a device to add or substitute an entirely new defendant who was not properly served (seeTokhmakhova v. H.S. Bros. II Corp., 132 A.D.3d 662, 18 N.Y.S.3d 85 ; Sanders v. 230FA, LLC, 126 A.D.3d 876, 877, 2 N.Y.S.3d 908 ; Smith v. Garo Enters., Inc., 60 A.D.3d at 752, 875 N.Y.S.2d 167 ).
Here, the Supreme Court erred in granting the plaintiff's motion, as the plaintiff failed to offer any evidence that the proposed defendant was properly served with process (see Tokhmakhova v. H.S. Bros. II Corp., 132 A.D.3d at 663, 18 N.Y.S.3d 85 ; Smith v. Giuffre Hyundai, Ltd., 60 A.D.3d 1040, 1042, 876 N.Y.S.2d 450 ; Rinzler v. Jafco Assoc., 21 A.D.3d 360, 362, 800 N.Y.S.2d 719 ; Gennosa v. Twinco Servs., 267 A.D.2d 200, 201, 699 N.Y.S.2d 459 ). Having failed to establish that the proposed defendant was properly served, the plaintiff was not entitled to relief pursuant to CPLR 305(c) (see Fridman v. New York City Tr. Auth., 131 A.D.3d 1202, 1204, 17 N.Y.S.3d 467 ; Associated Geriatric Info. Network, Inc. v. Split Rock Multi–Care Ctr., LLC, 111 A.D.3d 861, 862, 976 N.Y.S.2d 149 ).
” Under the circumstances presented here, the defendants failed to establish the MTA's prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it, because they failed to eliminate triable issues of fact as to whether the MTA owned, operated, maintained, or controlled the subject bus (see e.g. Castillo v. Silvercrest, 134 A.D.3d 977, 24 N.Y.S.3d 86; Lopez v. Cobra Logistics, Inc., 130 A.D.3d 880, 880–881, 12 N.Y.S.3d 889; Reydman v. Paradise II Resorts, Inc., 123 A.D.3d 789, 789–790, 999 N.Y.S.2d 90; cf. Fridman v. New York City Tr. Auth., 131 A.D.3d 1202, 1203, 17 N.Y.S.3d 467). Failure to make such a showing requires denial of that branch of the defendants' motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
The defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that they were not proper parties to this action. The defendants established that Keyspan Corporation was merely a holding parent company (see generally Fridman v New York City Tr. Auth., 131 A.D.3d 1202; Serrano v New York Times Co., Inc., 19 A.D.3d 577, 578). Additionally, the defendants established that National Grid USA Service Company, Inc., merely provided services such as legal and accounting, and that it had no interest in the ownership, maintenance, or control of the subject manhole cover and the gas lines below it (see generally Fiero v City of New York, 190 A.D.3d 822, 823-824; Puzhayeva v City of New York, 151 A.D.3d 988, 990).
The notice of claim may not be deemed timely served on Respondent nunc pro tunc insofar as the bus was registered to MTA Bus Company, and while MTA Bus Company and New York City Transit Authority are both MTA-affiliated, they are separate public benefit corporations with different functions (Fridman v New York City Transit Authority, 131 AD3d 1202 [2nd Dept 2015]).
As noted in the prior decision, it is settled as a matter of law, that the functions of the MTA with respect to public transportation are limited to financing and planning, and do not include the operation, maintenance, and control of any facility" or buses (seeDelacruz v. Metropolitan Transp. Authority , 45 A.D.3d 482, 846 N.Y.S.2d 160 [1st Dept. 2007], quoting Cusick v. Lutheran Med. Ctr. , 105 A.D.2d 681, 481 N.Y.S.2d 122 [2nd Dept. 1984] ; see alsoTowbin v. City of New York , 309 A.D.2d 505, 765 N.Y.S.2d 242 [1st Dept. 2003] ). Furthermore, MTA "and its subsidiaries must be sued separately, and are not responsible for each other's torts" ( Mayayev v. Metropolitan Transp. Authority Bus , 74 A.D.3d 910, 911, 904 N.Y.S.2d 84 [2nd Dept. 2010] [internal quotations omitted]; Fridman v. New York City Tr. Auth. , 131 A.D.3d 1202, 1203, 17 N.Y.S.3d 467 [2nd Dept. 2015] ). MTA is therefore a "distinct legal entity" and it not united in interest with NYCTA or MTA Bus (seeReis v. Manhattan and Bronx Surface Transit Operating Authority , 161 A.D.2d 288, 555 N.Y.S.2d 61 [1st Dept. 1990] ; Zaiman v. Metropolitan Transit Authority , 186 A.D.2d 555, 557, 588 N.Y.S.2d 402 [2nd Dept. 1992] ; Lopez v. Metropolitan Transp. Auth. , 267 A.D.2d 359, 699 N.Y.S.2d 912 [2nd Dept. 1999] ).