| CLC/CFI Liquidating Trust v Bloomingdale's, Inc. |
| 2008 NY Slip Op 03318 [50 AD3d 446] |
| April 15, 2008 |
| Appellate Division, First Department |
| CLC/CFI Liquidating Trust et al.,Appellants, v Bloomingdale's, Inc., a Division of Federated Department Stores, Inc., etal., Respondents. |
—[*1] Jones Day, New York (Mark R. Seiden of counsel), for respondents.
Orders, Supreme Court, New York County (Bernard J. Fried, J.), entered September 12 andNovember 14, 2007, which respectively denied plaintiffs' motions for class certification and, tothe extent appealed from, to renew, unanimously affirmed, with costs.
Plaintiffs allege that during the putative class action period, defendant department storesaffiliated with Federated (now Macy's) improperly imposed chargebacks on vendors formerchandise that did not comply with "floor-ready" requirements without giving the reasonablenotice required by UCC 2-607, and took certain cash discounts.
Whether a particular lawsuit qualifies as a class action ordinarily rests within the sounddiscretion of the trial court, although the Appellate Division can exercise the same authority evenabsent an abuse of discretion (Small v Lorillard Tobacco Co., 94 NY2d 43, 52-53[1999]). However, the party seeking class certification still bears the initial burden of establishingthe criteria prescribed in CPLR 901 (a) (Rabouin v Metropolitan Life Ins. Co., 25 AD3d 349 [2006]). Themotion court was warranted in determining that notwithstanding defendants' use of uniformcontract forms and procedures, the claims asserted in the complaint involve a preponderance ofindividualized factual questions that render this case unsuitable for class treatment (CPLR 901[a] [2]; see Shovak v Long Is.Commercial Bank, 35 AD3d 837 [2006]; Solomon v Bell Atl. Corp., 9 AD3d 49 [2004]). In light of thenumber of individual inquiries required as to each vendor and transaction, plaintiffs failed todemonstrate that a class action would be a superior method of resolving these issues.
The court appropriately denied plaintiffs' motion to renew based on its determination thatnew case law concerning the adequacy of assignees to act as class representatives would not haverequired a different result. Concur—Gonzalez, J.P., Williams, Catterson and Moskowitz,JJ. [See 17 Misc 3d 1118(A), 2007 NY Slip Op 52062(U).]