Opinion
Index No. 103100/12 Motion No. 1688 - 004 Motion No. 2201 - 005 Motion No. 2610 - 006
02-03-2014
ROBERT PRIGNOLI and NICHOLAS GIANNATASIO individually and as representatives of all Consolidated Edison electric power customers similarly situated, Plaintiff(s), v. KEVIN BURKE and CONSOLIDATED EDISON CO. OF NEW YORK INC., Defendant(s).
HON. PHILIP G. MINARDO
DECISION AND ORDER
The following papers numbered 1 to 7 were marked fully submitted on the 19th day of November, 2013.
| Papers Numbered | |
| Notice of Motion to Certify Class Action Pursuant to CPLR article 9, with Supporting Papers, Exhibits and Memorandum of Law (dated May 8, 2013) | 1 |
| Notice of Motion to Compel Compliance with Discovery, with Supporting Papers, Exhibits and Memorandum of Law (dated July 2, 2013) | 2 |
| Notice of Cross Motion for Costs, Attorney's Fees, and Sanctions, with Supporting Papers, and Exhibits (dated August 2, 2013) | 3 |
| Affirmation in Further Support of Defendants' Motion to Compel and in Opposition to Plaintiffs' Cross Motion, with Exhibits (dated August 6, 2011) | 4 |
| Affirmation in Opposition to Plaintiffs' Motion to Certify Class Action, with Exhibits (dated October 11, 2013) | 5 |
| Reply Affirmation in Further Support of Cross Motion, with Exhibits (dated October 31, 2013) | 6 |
| Reply Affirmation in Further Support of Motion to Certify Class Action, with Exhibits (dated November 12, 2013) | 7 |
Upon the foregoing papers, the motions and cross motion are denied.
Plaintiffs commenced this action to recover damages for injuries sustained as a result of the alleged negligence of defendant CONSOLIDATED EDISON CO. OF NEW YORK, INC. and KEVIN BURKE (hereinafter, collectively, CON ED) with regard to its response to Super Storm Sandy, which devastated the coastal areas of New York, New Jersey, Long Island and Connecticut, in October of 2012. The gravaman of the complaint is that, as a result of this negligence, many of CON ED's customers lost electrical power for periods of several days to several weeks, and were forced, inter alia, to find alternative means of power and/or seek alternative lodging. As is relevant to this case, plaintiff ROBERT PRIGNOLI alleges that he was personally forced out of his residence for several weeks due to the loss of electrical power despite not having sustained any property damage due to the storm. In addition, PRIGNOLI argues that CON ED (1) breached its duty to timely restore electrical service following the outages caused by the storm; (2) its employees deliberately lied and mislead him and other similarly situated CON ED customers as to the time frame for the restoration of electrical service; (3) the public utility was grossly negligent in, e.g., its management and operation in response to the hurricane; and (4) the company violated the Public Service Law as a result of gross negligence in failing to invest properly in electrical infrastructure, and/or prepare adequately for the forseeable interruption in electrical service caused by the storm. As a result of such gross negligence, plaintiffs are alleged to have sustained, inter alia, great pain and suffering; damage to their lives and property due, e.g., the loss of profits, goodwill, wages and future income; a decline in real property values; and consequential damages, including refrigerated food spoilage.
In support of their motion for an order certifying their case as a class action pursuant to CPLR article 9, plaintiffs contend that the one million (more or less) customers of CON ED who lost electrical power in the aftermath of the hurricane are similarly situated, in that they have all suffered extensive losses of personal property, and/or were forced to abandon their homes and businesses, and/or were deprived of their livelihoods, all due to CON ED's failure to restore electrical service in a timely manner. In addition, they claim that they and all other similarly situated customers of CON ED were forced to spend thousands of dollars for the purchase of food, lodging, electrical generators and the like caused by the protracted interruption in service. They further allege that they and a number of other CON ED customers have suffered from the effects of post traumatic stress, which was compounded in this case by the utility's mishandling of the outages; its feeble restoration efforts; a massive cover-up of incompetence and gross negligence; and the breach of the utility's obligation to timely restore service.
According to plaintiffs, there is a potential class of approximately one million customers who lost power, rendering their joinder as individual plaintiffs in a single action impractical. In addition, their claims are alleged to assert common questions of law and fact, e.g., whether CON ED was legally obligated to supply electrical power to all of its residential and business customers within the City of New York; whether it breached that duty by failing to timely restore electrical service following the storm; whether it was grossly negligent in formulating a viable response to the hurricane; and whether it violated the Public Service Law as a result of its gross negligence in (1) investing properly in electrical infrastructure; (2) preparing to respond to the foreseeable outages, and (3) the timely restoration of service. As a result, plaintiffs' maintain that CON ED is solely responsible for all of the losses sustained as a result of the aforesaid pattern of gross negligence and breach of contract. Moreover, it is claimed that common questions of fact will predominate on the issue of damages, with the typical claimant alleging, e.g., damages caused by the lack of refrigeration; the cost of purchasing food prepared outside the home; the cost of alternative lodging; the cost of securing alternate resources of electricity and heat (e.g., generators and kerosene heaters); the cost of fuel to power these appliances; losses in income and productivity; and damages associated with post traumatic stress associated with, e.g., theft and looting.
In moving to certify the class pursuant to CPLR 902, plaintiffs contend (1) that all of the statutory prerequisites of CPLR 901 have been satisfied, and (2) that while the proposed class could conceivably exceed one million, the internet has made the consolidation of such numerous claims feasible. Moreover, plaintiffs maintain that Richmond County would be an excellent choice of forum since it was uniquely devastated by the storm. Finally, plaintiffs allege that they are well situated to fairly represent the interests of the proposed class, and that the representative plaintiffs can collectively shoulder the substantial cost of litigation, including the cost of retaining the auditors and accountants necessary to efficiently process their claims. According to plaintiffs, they have engaged an auditing firm which is already designing and preparing a highly interactive and user-friendly website to facilitate the filing of claims, and has prepared a script for a TV advertisement to educate potential claimants. In addition, they claim to have established a credit relationship through Synergy Capital to obtain the necessary financing. Finally, plaintiffs contend that they have successfully litigated a prior class action, i.e., a shareholders derivative suit, and are no strangers to corporate litigation.
On the matter of intent, plaintiffs' contend that the primary purposes of the class action would be to deprive CON ED of any ill-gotten gains, while simultaneously deterring irresponsible, socially unacceptable and illegal conduct on the part of the utility. To this end, it is claimed that a "class action" format enables plaintiffs to press their individual claims as a mass grievance, where a better outcome is likely to be achieved. According to plaintiffs, it is impossible to ignore the psychological pressure that class-action status exerts upon a defendant.
In opposition to plaintiffs' motion, CON ED contends that plaintiffs have failed to satisfy the requirements of either CPLR 901 or 902. At the outset, it is argued that plaintiffs' definition of the proposed class is improper as a matter of law because it would require a host of separate mini-trials in which, e.g., each potential claimant would have to be investigated in order to determine whether his or her restoration of power was "untimely". Similarly, CON ED argues that if the class is defined to include all those who were either "misled or lied to" by CON ED representatives regarding the restoration of service, then separate inquiries would be required in order to determine which CON ED representative was spoken to, and whether that communication included any affirmative misrepresentation. However viewed, the proposed class definition is claimed to defeat the very goal of judicial economy that a class action is designed to achieve.
In addition, CON ED argues that in the present situation, individual issues will predominate over the questions common to the class. In particular, it is argued that the individual nature of ROBERT PRIGNOLI's claims are not typical of the other would-be class members. For example, while he was apparently without power for an extended period of time, the particular complaint of the other nominal plaintiff, NICHOLAS GIANNATASIO, appears to be focused on the amount of food spoilage which he experienced within the first 24 hours after the storm made landfall.
Moreover, CON ED argues that the case law in New York disfavors class action certification in power outages cases precisely because of the multitude of individual issues that such cases present. As a result, it is claimed that our courts have repeatedly denied class-action certification on several grounds which are equally applicable here, including the primacy of individual issues which would splinter the classes into a series of sub-classes requiring individual trials. Plaintiffs' inability to demonstrate "typicality", i.e., an identity between their travails and those of the other potential claimants, has also been cited.
CON ED further notes that class action certification has been denied in similar cases on the ground that a class action is not superior to other means for the adjudication of such claims; that individual members of the proposed class who have already filed actions arising out of the same incident have a personal interest in controlling the prosecution of their claims; and that the maintenance of individual actions are neither impracticable or inefficient. Finally, CON ED claims that it is not liable for any service interruptions that arise "from causes beyond its control or through the ordinary negligence of employees, servants or agents". Rather, it may only be held liable for damages resulting from its gross negligence or willful misconduct, neither of which is responsible for the service interruptions caused by Hurricane Sandy.
In its separate motion to compel compliance with prior court orders, CON ED argues that a good faith effort has been made on its part to resolve the issues raised during discovery, but that PRIGNOLI has been wholly unresponsive to these efforts. Based on the foregoing, this Court granted defendants permission to move to compel compliance.
By way of background, it is alleged that on February 12, 2013, CON ED served PRIGNOLI with several discovery demands including (1) a demand for bill of particulars, (2) a demand for a list of all parties who have appeared in the action (see CPLR 2103[e]), (3) a notice for documentary discovery, (4) a demand for the names of potential witnesses, (5) a demand for the discovery of expert witnesses, (6) a demand for collateral source information (see CPLR 4545), (7) a notice for the discovery and inspection of statements, and (8) a notice to take the deposition upon oral examination of plaintiff ROBERT PRIGNOLI. According to defendants, counselor PRIGNOLI has failed either to respond or request additional time.
Thereafter a Preliminary Conference was held, and on or about April 25, 2013, MR. PRIGNOLI was directed by the Court to respond to all outstanding discovery requests. In addition, the parties were directed to complete plaintiffs' depositions by June 15, 2013. According to CON ED, MR. PRIGNOLI failed to cooperate and, as a result, no depositions have been held. In due course, a second set of demands were allegedly were served upon MR. PRIGNOLI requesting specific information regarding his motion for class-action certification, but no response was forthcoming. When PRIGNOLI subsequently failed to appear at a compliance conference scheduled for June 5, 2013, this Court issued an order requiring him to respond to defendant's outstanding discovery requests by June 24, 2013. Here, CON ED alleges that plaintiffs' response to this order was both untimely and incomplete. In urging the entry of an order compelling counsel to provide meaningful responses, defendants note that other courts have previously sanctioned PRIGNOLI for his repeated discovery violations and dilatory tactics, and that the complaint should be dismissed.
In opposition, and in response to this motion, plaintiffs have cross-moved for an order against CON ED seeking sanctions, costs and the recovery of attorney's fees for frivolous motion practice. According to plaintiffs, their responses to CON ED's discovery demands were served only one week late and, therefore, no prejudice can be claimed. In addition, plaintiffs claim that defense counsel was made aware that their discovery responses would be a few days late; that many dates had been offered for the scheduling of EBTs; and that defendant's motion to compel fails to comply with 22 NYCRR §202.7(a) owing to the absence of an affirmation of good faith. Moreover, plaintiffs claim that CON ED's attorneys never made any good faith effort to resolve the outstanding discovery issues. Accordingly, plaintiffs' maintain that CON ED's discovery motion is fatally defective and, to the extent that it asks this Court to strike the complaint, is sufficiently frivolous to warrant the imposition of sanctions. Finally, plaintiffs claim that defendants have wilfully failed to respond to their own discovery demands and, accordingly, have engaged in outright obstruction and an abuse of the discovery process for which an order should be entered compelling CON ED to respond to plaintiffs' discovery demands.
The motions and cross motion are denied.
CPLR article 9 authorizes and sets forth the criteria to be considered by the trial court in the exercise of its discretion to grant class action certification (see Lauer v. New York Tel. Co., 231 AD2d 126, 130). In particular, CPLR 901 (a) authorizes the maintenance of a class action only if all of the following criteria have been met: (1) the class is so numerous that the joinder of all of its members would be impracticable; (2) questions of law or fact common to the class predominate over any question affecting only individual members; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the entire class; (4) the representative parties will fairly and adequately protect the interests of the class; and (5) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Additionally, in making its determination, CPLR 902 enjoins the court to examine (1) the interest of individual class members in controlling their own actions; (2) the impracticability or inefficiency of prosecuting or defending separate actions; (3) the extent and nature of litigation already commenced by members of the class; (4) the desirability or undesirability of concentrating litigation in a particular forum; and (5) the difficulties likely to be encountered in the management of the class action.
Here, it is the opinion of this Court that plaintiffs have failed to meet their burden of proof on several of the above grounds. In particular, plaintiffs have failed to establish that there are questions of law or fact common to the class which predominate over questions affecting only individual members; that the claims or defenses of the designated plaintiffs are typical of the claims or defenses of the class as a whole; and that plaintiffs would fairly and adequately protect the interest of the class.
In support of class action certification, plaintiffs contend that questions of law or fact common to the putative class members include the issues of causation, delays in the restoration of power, and the affirmative misrepresentation by CON ED employees regarding the restoration of service. While this Court does not dispute the claim that nearly one million customers may have lost power as a result of the effects of the storm in question, it would appear that the delay in restoring power to an individual customer will depend, at least in part, on the cause of that particular outage, and may vary greatly among the members of the purported class. Of necessity, other material issues will also be drawn into question, e.g., the customer's proximity to a flood zone; the amount of damage to the substation that supplies that customer's power; and the extent to which the relevant wires, lines, transformers and feeder cables were damaged as a result of the storm. Also likely to require independent evaluation will be the extent of the interruption in service, as plaintiffs' own proof establishes that the vast majority of CON ED's customers experienced only limited disruptions, and that their power was restored within several days. In fact, counselor PRIGNOLI, the proposed class representative, admits that of the fifteen homes situated on his street, only he and two other homeowners failed to have their electrical power restored in a timely manner. The need for such individualized scrutiny of, e.g., the cause of the delay in the restoration of each individual's power, would not only impede the definition of a viable class, but would effectively thwart the economies of time, effort and expense which class actions were designed to advance. Accordingly, any attempt to apply CPLR article 9 to the facts of this case would be neither efficient nor practical (see e.g., Corsello v. Verizon, NY, Inc., 76 AD3d 941, 942, affd 18 NY3d 777; but see Lauer v. New York Tel Co, 231 AD2d at 130 , granting class action certification to, e.g., a more restrictive and definable class of customers whose telephone numbers were improperly disseminated to the public).
Similarly, it is evident to this Court that the allegations of misrepresentation to customers by certain CON ED employees regarding the restoration of power simply cannot be litigated "en masse". Rather, such issues can only be addressed on a case-by-case basis as to the identity of the particular employee, the extent of his or her authority and the substance of the purported communication. The necessity for this type of inquiry would completely undermine the purpose of certifying the action.
Of even greater importance, however, is plaintiffs' failure to provide this Court with a sufficient basis upon which to conclude that the purported common issues of law and fact predominate over the diverse issues already cited, which affected the individual members of plaintiffs' proposed class in different ways. In fact, plaintiffs' allegations appear to relate primarily to their own hardships, difficulties which they have failed to show are typical in nature or extent to those of the other members of the proposed class. For example, the nature of the issues affecting the two nominal plaintiffs are themselves dissimilar. Thus, the proof submitted on behalf of MR. GIANNATASIO indicates that he lost power to his residence for a total of five days due to a downed power line on his street, and that he was able to stay at his daughter's home for the entire time. As a result, his only claim for damages relates to the spoilage of food due to the loss of refrigeration. On the other hand, while the claims made by MR. PRIGNOLI may be similar, in some ways, to the experiences of two of his neighbors, he has wholly failed to establish that they are representative of the damages sustained by even a significant plurality of other CON ED customers located throughout the rest of the City and Long Island. In this regard, it is pertinent to note that, as a plaintiff, MR. PRIGNOLI has asserted personal claims for a host of damages, including a decline in the property value of his home in excess of $200,000 despite the absence of any proof of flood damage; the spoilage of the contents of two refrigerators full of food; $4000 in dining charges; the cost of two generators and various plumbing repairs; the expense of off-premises lodging for an extended period of time; and a claim for damages relating to post-traumatic stress. Also included is a claim for the loss of services of a female friend. The individualized nature of most, if not all, of these claims do not appear to be uniquely typical of the class of persons who he seeks to represent.
As for PRIGNOLI's alleged ability to fairly represent the interests of the prospective class (see CPLR 901[a][4]), the Court cannot fail to note that MR. PRIGNOLI has had a long-standing, personal grievance with CON ED which arose years before the 2012 storm. In fact, he has freely admitted that he has had problems with his CON ED service for at least the past nine years. Based on the foregoing, it would only be natural for this Court to harbor some concern regarding his ability to best represent the interests of the other potential class members against a long-time adversary. However, this observation is made strictly for the purposes of this motion, and should have no effect on his ability to continue to litigate his own claims against the utility.
With respect to the cross motions to compel discovery and/or impose sanctions for, e.g., "frivolous" motion practice, it is the opinion of this Court that defendants' conduct in bringing the motion to compel compliance with court-ordered discovery cannot be considered "frivolous" in light of the ongoing and highly contested issues that have arisen regarding the exchange of pertinent information. Moreover, this motion was brought with the express permission of the Court. Since then, however, the landscape has changed and there has been some additional, voluntary compliance, e.g., some EBTs have been held and some documents exchanged. As a result, the extent of compliance cannot be reasonably adjudicated at this juncture. Therefore, all of the parties are directed to serve a further demand for discovery upon the other stating, in detail, those items claimed to be outstanding.
Accordingly, it is
ORDERED that the motion and cross motion are denied; and it is further
ORDERED that each of the parties is directed to serve upon the other a supplemental demand for outstanding discovery within 10 days after the service upon it of a copy of this Decision and Order with notice of entry, or be forever barred; and it is further
ORDERED that the parties so served are directed to comply with such demands or serve a written response containing detailed objections with 20 days following the receipt of said supplemental demands; and it is further
ORDERED that the parties are directed to appear before this Court at 10:00am on April 8, 2014 for a Compliance Conference; and it is further
ORDERED that the parties appearing at the above conference be vested with the necessary authority to definitively resolve any and all discovery issues which may arise at that time.
ENTER,
Philip G. Minardo
J.S.C.