Opinion
11626 Index 650911/13
06-11-2020
MID ISLAND LP, doing business as, Madison Management of Queens, et al., Plaintiffs–Respondents, v. HESS CORPORATION, Defendant–Appellant.
White & Case LLP, New York (Kimberly A. Havlin of counsel), for appellant. Grossman LLP, New York (Judd B. Grossman of counsel), for respondents.
White & Case LLP, New York (Kimberly A. Havlin of counsel), for appellant.
Grossman LLP, New York (Judd B. Grossman of counsel), for respondents.
Richter, J.P., Manzanet–Daniels, Kapnick, Kern, Oing, JJ.
Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered May 10, 2019, which granted plaintiffs' motion for class certification, unanimously reversed, on the law and the facts, without costs, the motion denied, and the class decertified, without prejudice to renewal upon evidence sufficient to establish numerosity of the proposed class.
The gravamen of plaintiffs' claim, and that for which they seek class certification, is that defendant provided them and others similarly situated "with inferior, adulterated heating oil, i.e. that the fuel oil that was delivered to them contained oils of lesser value mixed into the ordered grade of fuel oil, so that the delivered product did not meet the standards of the parties' contracts" ( BMW Group LLC v. Castle Oil Corp., 139 A.D.3d 78, 80, 29 N.Y.S.3d 253 [1st Dept. 2016] ). Contrary to defendant's contention, this is the predominant question of law and fact in this case, and it is common among the class. In any event, "the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action" ( City of New York v. Maul, 14 N.Y.3d 499, 514, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010] [internal quotation marks omitted]; see Maddicks v. Big City Props., LLC, 34 N.Y.3d 116, 125, 114 N.Y.S.3d 1, 137 N.E.3d 456 [2019] ). Moreover, "CPLR article 9 affords the trial court considerable flexibility in overseeing a class action," and the court could even "decertify the class at any time before a decision on the merits if it becomes apparent that class treatment is inappropriate" ( Maul, 14 N.Y.3d at 513–514, 903 N.Y.S.2d 304, 929 N.E.2d 366 ). Supreme Court is more than able to recognize if its class certification becomes unduly cumbersome, and, if so, how best to fashion a remedy.
Nevertheless, "[t]he proponent of class certification bears the burden of establishing the criteria promulgated by CPLR 901(a) and must do so by the tender of evidence in admissible form" ( Pludeman v Northern Leasing Sys., Inc., 74 A.D.3d 420, 422, 904 N.Y.S.2d 372 [1st Dept. 2010] [internal citations omitted]; see Feder v. Staten Is. Hosp., 304 A.D.2d 470, 471, 758 N.Y.S.2d 314 [1st Dept. 2003] ). Here, plaintiffs failed to submit admissible evidence demonstrating that the numerosity prerequisite to class certification was satisfied. However, the record suggests that such evidence is in plaintiffs' possession but simply was not submitted in connection with their motion. Accordingly, plaintiffs are given leave to renew their motion for class certification, upon admissible evidence providing a sufficient basis for determining the size of the potential class.