| Emilio v Robison Oil Corp. |
| 2009 NY Slip Op 04373 [63 AD3d 667] |
| June 2, 2009 |
| Appellate Division, Second Department |
| Vincent J. Emilio, Appellant, v Robison Oil Corp., DoingBusiness as Robison, Respondent. |
—[*1] Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (Susan E. Galvao of counsel), forrespondent.
In an action, inter alia, to recover damages for violation of General Business Law §349, the plaintiff appeals from an order of the Supreme Court, Westchester County (Liebowitz,J.), entered October 31, 2007, which denied his motion for class action certification.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs,and the plaintiff's motion for class action certification is granted.
The plaintiff, individually and as a proposed representative of a putative class, commencedthis action against the defendant alleging for breach of contract, breach of the implied covenantof good faith and fair dealing, and violation of General Business Law § 349 forunilaterally adjusting alleged fixed-priced electrical supply charges mid-term. The plaintiffmoved for class action certification, which the Supreme Court denied. We reverse.
While the determination to grant or deny class action certification rests in the sounddiscretion of the court (see Small v Lorillard Tobacco Co., 94 NY2d 43, 52-53 [1999];Tosner v Town of Hempstead, 12AD3d 589, 590 [2004]), it must be grounded upon a consideration of the factors set forth inCPLR 901 (a) and 902. The five factors enumerated in CPLR 901 (a) are (1) the class is sonumerous that joinder of all members is impractical, (2) the existence of common questions offact or law that predominate over questions affecting individual members, (3) typicality of theclass representative's claims or defenses with that of the class, (4) adequacy of protecting theclass by the representative, and (5) superiority of the class action to other available methods ofadjudicating the [*2]controversy (see Globe Surgical Supply v GEICO Ins.Co., 59 AD3d 129 [2008]; Matter of Colt Indus. Shareholder Litig., 77 NY2d185, 194 [1991]). CPLR 902 also requires, if the prerequisites of CPLR 901 are satisfied,consideration of (1) whether class members have an individual interest in controlling thelitigation, (2) the impracticality or inefficiency of prosecuting or defending separate actions, (3)the extent and nature of existing litigation, (4) the desirability or undesirability of concentratingthe claim in a particular forum, and (5) difficulties likely to be encountered in managing theclass. The class representative has the burden of establishing the prerequisites of certification (see Kings Choice Neckwear, Inc. v DHLAirways, Inc., 41 AD3d 117 [2007]; Beller v William Penn Life Ins. Co. of N.Y., 37 AD3d 747, 748[2007]). CPLR article 9 is to be liberally construed (see Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129[2008]; Beller v William Penn Life Ins. Co. of N.Y., 37 AD3d at 748; Friar vVanguard Holding Corp., 78 AD2d 83, 93 [1980]).
Upon a balanced consideration of all relevant circumstances, we find that the plaintiff meetsall of the prerequisites of CPLR 901 (a), and that the Supreme Court improvidently exercised itsdiscretion in denying class action certification. Members of the class appear to number in themultiple hundreds. The members share common questions of fact or law regarding thedefendant's alleged unilateral adjustment of prices in the middle of alleged fixed price terms. Theclaims of the representative are typical of those of the class. The representative has demonstratedthat he can fairly and adequately protect the interests of the class. Finally, the class actionprocedure appears to be superior to other potential available methods of adjudicating thecontroversy. A consideration of the factors contained in CPLR 902 does not warrant a differentresult.
We note, in particular, that class actions are uniformly certified in breach of contract actions,notwithstanding differing damages to individual class members where, as here, there is auniformity of contractual agreements (see e.g. Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129[2008]; Beller v William Penn Life Ins. Co. of N.Y., 37 AD3d at 747; Wilder v MayDept. Stores Co., 23 AD3d 646, 649 [2005]; Englade v HarperCollins Publs., 289AD2d 159, 160 [2001]). We also note that to the extent the defendant may have issued threesimilar contract versions to customers at different times between 1998 and 2006 that are at issuehere, nothing would prevent the Supreme Court, in the management of the class, fromestablishing sub-classes based upon the particular contract at issue given the commonality of theclass members' general claims (see Super Glue Corp. v Avis Rent A Car Sys., 132 AD2d604, 607 [1987]).
The parties' remaining contentions have been rendered academic in light of ourdetermination or are without merit. Mastro, J.P., Dillon, Covello and Dickerson, JJ., concur.