Sysco Metro Ny, LLC v. City of N.Y.

Full title: In the Matter of the Application of Sysco Metro NY, LLC, on its behalf and…

Court: Supreme Court, New York County

Date published: Jul 9, 2019

2019 N.Y. Slip Op. 51995 (N.Y. Sup. Ct. 2019)

Opinion

101637/2015

07-09-2019

In the Matter of the Application of Sysco Metro NY, LLC, on its behalf and on behalf of all others similarly situated, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules and for Other Legal and Equitable Relief, v. City of New York, New York City Department of Finance Commercial Adjudications Unit a/k/a Adjudication Division, and Jacques Jiha, as New York City Commissioner of Finance, Respondents.

For Petitioners Jonathan Edelstein Esq. Edelstein & Grossman 501 5th Avenue, New York, NY 10017 Bryan D. Glass Esq. Glass & Hogrogian LLP 85 Broad Street, New York, NY 10004 For Respondents Kerri Devine, Senior Counsel Amy Weinblatt, Senior Counsel New York City Law Department 100 Church Street, New York, NY 10007

Lucy Billings, J.

For Petitioners Jonathan Edelstein Esq. Edelstein & Grossman 501 5th Avenue, New York, NY 10017 Bryan D. Glass Esq. Glass & Hogrogian LLP 85 Broad Street, New York, NY 10004 For Respondents Kerri Devine, Senior Counsel Amy Weinblatt, Senior Counsel New York City Law Department 100 Church Street, New York, NY 10007 Lucy Billings, J.

I. BACKGROUND

Petitioner initially brought this proceeding challenging two categories of notices of violations, referred to as summonses or tickets, issued to petitioner's tractors for violations of parking laws and sustained by respondents. The first category comprises violations on summonses issued to petitioner's tractors that describe the tractors as body types other than a tractor, such as a truck or other delivery vehicle, referred to as "body type summonses." The second category comprises violations on summonses for commercial vehicles parked with their lift gate lowered when the vehicles were unattended, issued to petitioner's tractors, which haul the trailers with the lift gates, rather than to the trailers, which bear separate license plates.

In an order dated September 20, 2017, the court granted the petition insofar as petitioner Sysco Metro NY, LLC, challenged summonses that misdescribed tractors. The court vacated respondent New York City Department of Finance Commercial Adjudications Unit's determinations finding petitioner Sysco Metro guilty of the violations on 1,019 summonses that misdescribed the offending tractors' body types as anything other than a tractor and dismissed all those summonses. The court ordered respondents to remit all fines petitioner Sysco Metro paid for these 1,019 violations and enjoined respondents from finding Sysco Metro guilty of the violations on any summonses issued to tractors that misdescribe the tractor's body type as anything other than a tractor. The court denied the petition insofar as it challenged "lift gate summonses" issued to tractors, and dismissed all other claims for relief, including former petitioner Parking Survival Experts' claims. Sysco Metro NY, LLC v. City of New York, 59 Misc 3d 727 (Sup. Ct. NY Co. 2017), aff'd, 168 AD3d 459 (1st Dep't 2019). The parties stipulated to discontinue the proceeding against respondent Jiha in his individual capacity. C.P.L.R. § 3217(a)(2).

Petitioner now seeks to certify a class of all persons and entities who own, operate, manage, or control a tractor or trailer that was, is, or will be operated within New York City and who have received or will receive notices of violation in which the body type of a tractor is described as anything other than a tractor. Petitioners do not seek to certify a class for vehicles issued "lift gate summonses." Respondents oppose class certification, maintaining that petitioner fails to demonstrate the numerosity of the proposed class, such that joinder is impracticable, and the adequacy of the class representatives. C.P.L.R. § 901(a)(1) and (4). Respondents also maintain that the presumption disfavoring class certification against governmental respondents bars certification. C.P.L.R. § 901(a)(5).

II. STANDARDS FOR CLASS CERTIFICATION

Petitioner, as a member of a class, may sue as a representative party on behalf of all class members if petitioner meets the following prerequisites. C.P.L.R. § 901(a). (1) The class is so numerous that joinder of all members is impracticable. (2) Questions of law or fact common to the class predominate over any questions affecting only individual members. (3) The representative party's claims are typical of the class' claims. (4) The class representative will protect the class' interests fairly and adequately. (5) A class action is superior to other methods for the fair and efficient adjudication of this controversy.

Petitioner, as the party seeking class certification, bears the burden to present evidence establishing these criteria. Williams v. Air Serv Corp., 121 AD3d 441, 441 (1st Dep't 2014); Gomez v. Brill Sec., 95 AD3d 32, 43 (1st Dep't 2012); Pludeman v. Northern Leasing Sys., Inc., 74 AD3d 420, 422 (1st Dep't 2010); Kudinov v. Kel-Tech Constr. Inc., 65 AD3d 481, 481 (1st Dep't 2009). The criteria are to be construed liberally in favor of class certification. Andryeyeva v. New York Health Care, 33 NY3d 152, 183 (2019); City of New York v. Maul, 14 NY3d 499, 512 (2010); Pludeman v. Northern Leasing Sys., Inc., 74 AD3d at 422; Kudinov v. Kel-Tech Constr. Inc., 65 AD3d at 481. The court may consider the merits of petitioner's claims only to the extent of ensuring that those claims are not a sham: a requirement petitioner easily satisfies here, as it seeks class certification only for claims for which the court already has granted it relief and been affirmed. Sysco Metro NY, LLC v. City of New York, 59 Misc 3d 727, aff'd, 168 AD3d 459. See Pludeman v. Northern Leasing Sys., Inc., 74 AD3d at 422; Kudinov v. Kel-Tech Constr. Inc., 65 AD3d at 482; Jim & Phil's Family Pharm. v. Aetna U.S. Healthcare, 271 AD2d 281, 282 (1st Dep't 2000).

A. Superiority of Class Adjudication

The "governmental operations" rule cautions against class certification where governmental operations are involved, on the premise that any relief granted to petitioner will protect other, similarly situated persons under the principles of stare decisis. Watts v. Wing, 308 AD2d 391, 392 (1st Dep't 2003); New York City Coalition to End Lead Poisoning v. Giuliani, 245 AD2d 49, 51-52 (1st Dep't 1997); Hurrell-Harring v. State, 81 AD3d 69, 74 (3d Dep't 2011); Graves v. Doar, 62 AD3d 874, 875 (2d Dep't 2009). The governmental operations rule, however, does not bar certification of a class in which the members seek relatively small sums of damages resulting from the same challenged governmental action, Graves v. Doar, 62 AD3d at 875; Tosner v. Town of Hempstead, 12 AD3d 589, 590 (2d Dep't 2004); Holcomb v. O'Rourke, 255 AD2d 383, 384 (2d Dep't 1998), or where the relief afforded to petitioner will not afford relief for the harm affecting the class or will not operate as precedent for the class. Watts v. Wing, 308 AD2d at 392; Chalfin v. Sabol, 247 AD2d 309, 311 (1st Dep't 1998); New York City Coalition to End Lead Poisoning v. Giuliani, 245 AD2d at 51.

Glenn Bolofsky, President of Parking Survival Experts (PSE), attests that PSE represents at least 48 entities that own and operate tractors in New York City, Aff. of Jonathan I. Edelstein Ex. F [Aff. of Glenn Bolofsky (Jan. 13, 2016)] ¶¶ 2, 4, and that 19 of those 48 entities have received body type summonses mislabeling their tractors as body types other than a tractor. Edelstein Aff. Ex. G [Aff. of Glenn Bolofsky (Sept. 8, 2017)] ¶ 7(a); Reply Aff. of Jonathan I. Edelstein Ex. B [Aff. of Glenn Bolofsky (June 1, 2018)] ¶¶ 4-5. Bolofsky further attests that PSE represents less than 20% of the entities that operate tractors in New York City. Edelstein Reply Aff. Ex. B [Aff. of Glenn Bolofsky (June 1, 2018)] ¶ 6. The governmental operations rule does not bar these tractor operators from recovering as a class the fines paid for violations on summonses that misdescribed the these operators' tractors as body types other than a tractor: a small sum at stake for each operator, but all damages stemming from respondents' same classwide practice. Graves v. Doar, 62 AD3d at 875; Tosner v. Town of Hempstead, 12 AD3d at 590; Holcomb v. O'Rourke, 255 AD2d at 384.

Dismissal of the prior unlawful body type summonses sustained against petitioner and an injunction against respondents' issuance of further summonses to petitioner, moreover, provide no relief to other tractor owners and operators for the unlawful summonses sustained against those entities. Therefore the governmental operations rule does not bar certification of the class to provide class members this relief. Watts v. Wing, 308 AD2d at 392; Chalfin v. Sabol, 247 AD2d at 311; New York City Coalition to End Lead Poisoning v. Giuliani, 245 AD2d at 51.

Finally, respondents have insisted throughout this proceeding that they do not control their hearing examiners' compliance with the court's orders, as the hearing examiners are neither respondents here nor their employees. NY Veh. & Traf. Law § 236(2)(d). Thus respondents maintain that they are not responsible for hearing examiners' noncompliance with the law or for ensuring that their determinations comply with the law, including any court orders governing respondents. When respondents have assumed such a position, the court surely may not rely on them to apply any relief granted to petitioner to other, similarly situated persons. New York City Coalition to End Lead Poisoning v. Giuliani, 245 AD2d at 51; Varshavsky v. Perales, 202 AD3d 155, 156 (1st Dep't 1994); Graves v. Doar, 62 AD3d at 876.

Since respondents have sustained the same unlawful body type summonses against all 19 entities identified by Bolofsky and against those entities among the over 192 other tractor operators that have received the same unlawful body type summonses, a class action is a superior means for all the entities to seek common relief. Otherwise the many different tractor owners and operators throughout New York City are left to institute their own proceedings to recover each owner's or operator's small sum of damages for the body type summonses adjudicated against each owner or operator. Watts v. Wing, 308 AD2d at 392; Graves v. Doar, 62 AD3d at 875; Tosner v. Town of Hempstead, 12 AD3d at 590; Holcomb v. O'Rourke, 255 AD2d at 384.

B. Numerosity, Commonality, and Typicality

No mechanical test or rule establishes the number of prospective class members sufficient to satisfy C.P.L.R. 901(a)(1)'s numerosity requirement. Globe Surgical Supply v. GEICO Ins. Co., 59 AD3d 129, 137-38 (2d Dep't 2008). As set forth above, Bolofsky's affidavits demonstrate that at least 19 entities from less than 20% of entities operating tractors in New York City have received unlawful body type summonses that nevertheless have been sustained against the operators. Bolofsky bases his estimates on his 25 years representing trucking fleets that operate tractors in New York City and his familiarity with that entire local industry and the fleets' defense of summonses for violations of parking laws. On these bases he estimates that the more than 240 such entities receive body type summonses mislabeling their tractors as body types other than a tractor with the same regularity, almost 40%, as the 48 entities PSE represents. Edelstein Reply Aff. Ex. B [Aff. of Glenn Bolofsky (June 1, 2018)] ¶¶ 6-10; Edelstein Aff. Ex. H [Aff. of Chris Adragna] at 2.

Bolofsky's estimates, yielding a class of at least 96 members, likely are low, because his knowledge of all entities operating tractors in the city and receiving body type summonses may be limited and not all-encompassing. Thus petitioner has satisfied the numerosity requirement such that joinder of all class members is impracticable. C.P.L.R. § 901(a)(1); Stecko v. RLI Ins. Co., 121 AD3d 542, 542-43 (1st Dep't 2014); Dabrowski v. Abax Inc., 84 AD3d 633, 634 (1st Dep't 2011); Globe Surgical Supply v. GEICO Ins. Co., 59 AD3d at 137-38.

Bolofsky's affidavits and the affidavit by petitioner's expert data analyst Chris Adragna emphasize that the body type summonses body type summonses issued to and sustained against other entities' tractors misdescribe the offending tractors' body type in the same way as the summonses issued to and sustained against petitioner. Respondents do not question this showing of commonality and typicality. Thus petitioner has satisfied these two prerequisites as well. C.P.L.R. § 901(a)(2) and (3); City of New York v. Maul, 14 NY3d at 513-14; Pludeman v. Northern Leasing Sys., Inc., 74 AD3d at 423; Yeger v. E*Trade Sec. LLC, 65 AD3d 410, 413 (1st Dep't 2009); CLC/CFI Liquidating Trust v. Bloomingdale's, Inc., 50 AD3d 446, 447 (1st Dep't 2008).

C. Adequacy of Representation

To establish the adequacy of representation, petitioner must demonstrate the absence of conflicts between the representative and the class members, the representative's financial resources and familiarity with the proceeding, and the competence and experience of the attorneys for the class. Ackerman v. Price Waterhouse, 252 AD2d 179, 202 (1st Dep't 1998); Pruitt v. Rockefeller Center Props., 167 AD2d 14, 24 (1991); Globe Surgical Supply v GEICO Ins. Co., 59 AD3d at 144. See Dabrowski v. Abax Inc., 84 AD3d at 634-35; Fiala v. Metropolitan Life Ins. Co., 52 AD3d 251, 251 (1st Dep't 2008). Petitioner fails to support its motion with any evidence demonstrating representative petitioner Sysco Metro's familiarity with this proceeding or assuring the absence of conflicts of interest between petitioner and the other trucking fleets that operate tractors in New York City, that are class members, and with which petitioner may compete. See Stecko v. RLI Ins. Co., 121 AD3d at 543; Williams v. Air Serv Corp., 121 AD3d at 442; Ackerman v. Price Waterhouse, 252 AD2d at 202; Pruitt v. Rockefeller Center Props., 167 AD2d at 24. While a trucking fleet of petitioner's size undoubtedly possesses financial resources, and this proceeding somehow has been financed up to now, petitioner has not demonstrated that it is committed to devoting its resources to a more expansive class action, which will entail identifying and notifying all class members and assisting them in securing the relief due to them. Nor has petitioner demonstrated even that it has financed this proceeding up to now.

In reply to respondents' opposition questioning the adequacy of petitioner as a class representative, which the court permitted respondents to address in a surreply, Frangiadakis v. 51 W. 81st St. Corp., 161 AD3d 478, 479 (1st Dep't 2018); Beazer v New York City Health & Hosps. Corp., 76 AD3d 405, 407 (1st Dep't 2010), aff'd, 18 NY3d 833 (2011); Sanders v. 210 N. 12th St., LLC, 171 AD3d 966, 969 (2d Dep't 2019), petitioner relies on the affidavit of Bolofsky, of PSE, who is not petitioner's officer or employee, but whom petitioner has retained to defend against summonses it has received for violations of parking laws. Although PSE represents petitioner before respondents' Commercial Adjudications Unit, no evidence demonstrates that petitioner has authorized PSE, a separate entity, to speak for or represent petitioner in this proceeding. In fact, in four years of active litigation in this proceeding, dozens of court appearances, and several days of testimony, no officer or employee of petitioner ever has appeared, submitted an affidavit, or shown any involvement or interest whatsoever in the proceeding. PSE's familiarity with this proceeding is irrelevant since the court has dismissed its claims, and therefore PSE may not serve as a class representative.

Bolofsky attests that petitioner is aware of the claims in this proceeding, because he has discussed the claims and the request for class certification with petitioner's officers and reported the progress of the proceeding to them. Edelstein Reply Aff. Ex. B [Aff. of Glenn Bolofsky (June 1, 2018)] ¶ 11. Even if Bolofsky may attest to petitioner's awareness based on his discussions with and reports to petitioner, its awareness, without more, does not translate into a demonstrated interest in the class' claims and commitment to undertake the responsibilities of a class representative and to represent the class fairly and adequately. Pludeman v. Northern Leasing Sys., Inc., 74 AD3d at 422; Feder v Staten Is. Hosp., 304 AD2d 470, 471 (1st Dep't 2003); Rallis v. City of New York, 3 AD3d 525, 526 (2d Dep't 2004).

Despite the benefit of two attempts, petitioner still fails to present evidence from petitioner's own representative showing both its awareness of the claims in this proceeding and its willingness and ability to be involved as the class representative and to undertake its concomitant responsibilities. An involved representative must act as an affirmative check on the class' attorneys, rather than as a passive recipient of information on how the attorneys or other nonparties have decided to proceed. Petitioner thus fails to satisfy the prerequisite that petitioner qualifies as an adequate class representative. C.P.L.R. § 901(a)(4). See Stecko v. RLI Ins. Co., 121 AD3d at 543; Williams v. Air Serv Corp., 121 AD3d at 442; Ackerman v. Price Waterhouse, 252 AD2d at 202; Pruitt v. Rockefeller Center Props., 167 AD2d at 24.

The court denies petitioner permission to submit a third round of affidavits in response to respondents' surreply and after submission of petitioner's motion November 21, 2018, and thus declines to consider the affidavit of Craig Mills submitted November 27, 2018. 70 Pinehurst Ave. LLC v. RPN Mgt. Co., Inc., 123 AD3d 621, 622 (1st Dep't 2014); Ostrov v. Rozbruch, 91 AD3d 147, 155 (1st Dep't 2012). Petitioner also failed to support its motion with any evidence demonstrating its attorneys' competence and experience in class actions. To be sure, the four years of active litigation and dozens of court appearances, including extended arguments and evidentiary hearings, in this proceeding have exhibited the attorneys' vigorous representation and their mastery of the statutes, regulations, and administrative practices governing respondents' adjudication of violations of parking laws. Nevertheless, only in reply did petitioner indicate its attorney Bryan Glass' experience in managing class actions. See Dabrowski v. Abax Inc., 84 AD3d at 634; Fiala v. Metropolitan Life Ins. Co., 52 AD3d at 251; Ackerman v. Price Waterhouse, 252 AD2d at 202. Petitioner's attorneys well may possess the requisite competence and experience, but petitioner neglected to present it in support of class certification.

III. CONCLUSION

Although petitioner has satisfied all the other prerequisites to a class action, because petitioner has not demonstrated that it is an adequate class representative for the reasons explained above, the court denies petitioner's motion to certify its proposed class. C.P.L.R. §§ 901, 902. This denial is without prejudice to a future, adequately supported motion for class certification in compliance with C.P.L.R. §§ 901 and 902 or a future class action for similar relief. Dated: July 9, 2019 LUCY BILLINGS, J.S.C.