Opinion
1340 CA 15-00297.
12-31-2015
Mary DELUCA, Individually, and as Class Representative, et al., Plaintiffs–Respondents, v. TONAWANDA COKE CORPORATION, Estate of J.D. Crane, Deceased, Mark Kamholz, Defendants–Appellants, et al., Defendants. (Appeal No. 1.).
Hodgson Russ LLP, Buffalo (Hugh M. Russ, III, of Counsel), for Defendants–Appellants. Wilentz, Goldman & Spitzer, P.A., New York City (Alfred M. Anthony of Counsel), Collins & Collins Attorneys, LLC, Buffalo, Gordon & Gordon, Springfield, NJ, and Hobbie, Corrigan & Bertucio, P.C., Eatontown, NJ, for Plaintiffs–Respondents.
Hodgson Russ LLP, Buffalo (Hugh M. Russ, III, of Counsel), for Defendants–Appellants.
Wilentz, Goldman & Spitzer, P.A., New York City (Alfred M. Anthony of Counsel), Collins & Collins Attorneys, LLC, Buffalo, Gordon & Gordon, Springfield, NJ, and Hobbie, Corrigan & Bertucio, P.C., Eatontown, NJ, for Plaintiffs–Respondents.
Opinion
MEMORANDUM:
Mary DeLuca (plaintiff) commenced this action, individually and on behalf of purported classes of personal injury plaintiffs seeking damages caused by defendants' negligent release of chemicals into the atmosphere. In appeal No. 1, Tonawanda Coke Corporation, the Estate of J.D. Crane, deceased, and Mark Kamholz (defendants) appeal from an order that, inter alia, denied their motion to dismiss the class allegations and granted plaintiff's cross motion for an extension of time in which to seek class certification. In appeal No. 2, defendants appeal from an order that, inter alia, granted in part plaintiff's motion for class certification and certified two classes of plaintiffs, one seeking damages for alleged loss in property values, and the other seeking damages for alleged loss of quality of life.
Contrary to defendants' contention in appeal No. 1, we conclude that Supreme Court did not abuse its discretion in granting plaintiff's cross motion for an extension of time in which to seek class certification. “While class certification is an issue that should be determined promptly (see CPLR 902), a trial court has discretion to extend the deadline upon good cause shown” (Rodriguez v. Metropolitan Cable Communications, 79 A.D.3d 841, 842, 913 N.Y.S.2d 292; see CPLR 2004). Here, plaintiff made a showing of good cause by submitting evidence that further discovery was needed and that plaintiff had agreed to defendants' request to delay discovery until a criminal proceeding against defendants was complete (see Chavarria v. Crest Hollow Country Club at Woodbury, Inc., 109 A.D.3d 634, 634, 970 N.Y.S.2d 884; Rodriguez, 79 A.D.3d at 842, 913 N.Y.S.2d 292; see generally Galdamez v. Biordi Constr. Corp., 50 A.D.3d 357, 358, 855 N.Y.S.2d 104). Furthermore, plaintiff established that she “had a good-faith belief that a motion for class action certification made at the close of discovery would be deemed timely” (Argento v. Wal–Mart Stores, Inc., 66 A.D.3d 930, 933, 888 N.Y.S.2d 117).
In appeal No. 2, defendants contend that class certification was not appropriate because common questions of law or fact do not predominate over questions affecting only individual members. We reject that contention. “[A] class action may be maintained in New York only after the five prerequisites set forth in CPLR 901(a) have been met, i.e., the class is so numerous that joinder of all members is impracticable, common questions of law or fact predominate over questions affecting only individual members, the claims or defenses of the representative parties are typical of the class as a whole, the representative parties will fairly and adequately protect the interests of the class, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy” (Rife v. Barnes Firm, P.C., 48 A.D.3d 1228, 1229, 852 N.Y.S.2d 551, lv. dismissed in part and denied in part 10 N.Y.3d 910, 861 N.Y.S.2d 270, 891 N.E.2d 305). A plaintiff seeking class certification has the “burden of establishing the prerequisites of CPLR 901(a) and thus establish[ing] ... entitlement to class certification” (Freeman v. Great Lakes Energy Partners, L.L.C., 12 A.D.3d 1170, 1171, 785 N.Y.S.2d 640; see East2West Constr. Co., LLC v. First Republic Corp. of Am., 115 A.D.3d 1206, 1208, 982 N.Y.S.2d 257; Rife, 48 A.D.3d at 1229, 852 N.Y.S.2d 551).
Contrary to defendants' contention, plaintiff established that there are common questions of law or fact whether defendants negligently discharged chemicals into the atmosphere and whether such negligent conduct caused decreases in property values or quality of life in the affected area (see Olden v. LaFarge Corp., 383 F.3d 495, 508–509, cert. denied 545 U.S. 1152, 125 S.Ct. 2990, 162 L.Ed.2d 910; Mejdrech v. Met–Coil Sys. Corp., 319 F.3d 910, 911–912; see generally Freeman, 12 A.D.3d at 1171, 785 N.Y.S.2d 640). Although the individual class members may have sustained differing amounts of damages, it is well settled that “ ‘the amount of damages suffered by each class member typically varies from individual to individual, but that fact will not prevent the suit from going forward as a class action if the important legal or factual issues involving liability are common to the class' ” (Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 399, 998 N.Y.S.2d 729; see generally City of New York v. Maul, 14 N.Y.3d 499, 514, 903 N.Y.S.2d 304, 929 N.E.2d 366).
We also reject defendants' contention that plaintiff failed to meet the typicality requirement of CPLR 901(a)(3). Plaintiff established that the claims of the class representative arose “ ‘out of the same course of conduct and are based on the same theories as the other class members' ” (Freeman, 12 A.D.3d at 1171, 785 N.Y.S.2d 640). Contrary to defendants' contention, because “the typicality requirement relates to the nature of the claims and the underlying transaction, not the amount or measure of damages, [the fact that the class representative's] damages may differ from those of other members of the class is not a proper basis to deny class certification” (Pruitt v. Rockefeller Ctr. Props., 167 A.D.2d 14, 22, 574 N.Y.S.2d 672; see Borden, 24 N.Y.3d at 399, 998 N.Y.S.2d 729).
Contrary to defendants' further contention, the court provided adequate descriptions of the certified classes (see CPLR 903; Globe Surgical Supply v. GEICO Ins. Co., 59 A.D.3d 129, 137, 871 N.Y.S.2d 263), and determining who is a member of each class would not require “individualized examination of each person[ ]” (Mitchell v. Barrios–Paoli, 253 A.D.2d 281, 291, 687 N.Y.S.2d 319).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.