Opinion
8940 Index 160494/17
04-09-2019
Michele E. HESS, et al., Plaintiffs–Respondents, v. EDR ASSETS LLC, et al., Defendants–Appellants.
Katsky Korins LLP, New York (Adrienne B. Koch of counsel), for appellants. Newman Ferrara LLP, New York (Roger Sachar of counsel), for respondents.
Katsky Korins LLP, New York (Adrienne B. Koch of counsel), for appellants.
Newman Ferrara LLP, New York (Roger Sachar of counsel), for respondents.
Renwick, J.P., Richter, Tom, Kahn, Moulton, JJ.
The court properly found that the second and third causes of action of the complaint were not moot because there was a justiciable issue regarding the proper method of calculating the amount of the rent overcharges, which, based on the record before the court, DHCR did not determine.
The court did not improvidently exercise its discretion in denying plaintiffs' cross motion for class action status with leave to renew following discovery, based on issues raised by defendants concerning the typicality of a named representative. The court correctly determined that there were common questions of law and fact that predominated over individual issues, such as the proper method of calculating the amount of the rent overcharges and whether defendants engaged in a fraudulent scheme to deregulate the apartments. Moreover, the Court of Appeals has found that class action treatment was superior to individual adjudication in similar situations (see Borden v. 400 E. 55th St Assoc., L.P., 24 N.Y.3d 382, 400, 998 N.Y.S.2d 729, 23 N.E.3d 997 [2014].
We reject respondent's request for dismissal of this action on the ground that DHCR has primary jurisdiction since the action raises legal issues, including class certification, that must be addressed in the first instance by the court (See Kresiler v. B–U Realty Corp., 164 A.D.3d 1117, 83 N.Y.S.3d 442 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1090, 90 N.Y.S.3d 636, 114 N.E.3d 1089 [2018] ; Dugan v. London Terrace Gardens, L.P., 101 A.D.3d 648, 955 N.Y.S.2d 873 [1st Dept. 2012] ).
We have considered defendants' remaining arguments and find them unavailing.