| Argento v Wal-Mart Stores, Inc. |
| 2009 NY Slip Op 07778 [66 AD3d 930] |
| October 27, 2009 |
| Appellate Division, Second Department |
| Francine Argento, Appellant, v Wal-Mart Stores, Inc.,Respondent. |
—[*1] Manatt Phelps & Phillips, New York, N.Y. (Steven F. Reich, Gregory Clarick, and Jason L.Bates of counsel), for respondent.
In an action, inter alia, to recover damages for violation of General Business Law §349, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the SupremeCourt, Westchester County (Nastasi, J.), entered September 4, 2008, as denied that branch of hermotion which was for class action certification pursuant to CPLR article 9, and (2) so much of anorder of the same court entered October 28, 2008, as denied that branch of her motion which wasfor leave to renew.
Ordered that the order entered October 28, 2008 is reversed insofar as appealed from, on thelaw and in the exercise of discretion, that branch of the plaintiff's motion which was for leave torenew is granted, and, upon renewal, so much of the order entered September 4, 2008, as deniedthat branch of the plaintiff's prior motion which was for class action certification pursuant toCPLR article 9 is vacated, and that branch of the plaintiff's prior motion is granted; and it isfurther,
Ordered that the appeal from the order entered September 4, 2008 is dismissed as academicin light of our determination of the appeal from the order entered October 28, 2008; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
The plaintiff, individually and as a proposed representative of a putative class, commencedthis action alleging, inter alia, that the defendant engaged in deceptive business practices inviolation of General Business Law § 349 by routinely backdating renewal memberships atSam's Club stores. The plaintiff claims that as a result of the backdating policy, members whorenew after the date upon which their one-year membership terms expire are neverthelessrequired to pay the full annual fee for less than a full year of membership.
The defendant served an answer dated August 10, 2007 and over the course of the next 10months, the parties engaged in discovery relevant to both the statutory prerequisites for [*2]seeking class action certification and the merits of the action.During this 10-month period, the Supreme Court conducted several status conferences at whichschedules for the completion of discovery were established. The plaintiff's attorney alleges thathe advised the court at the first two status conferences that the plaintiff intended to move, interalia, for certification of a statewide class at the completion of discovery. When the plaintiff'smotion was thereafter filed at the third status conference, a date for the submission of opposingpapers was selected. There is no indication in the record that the defendant raised an objection tothe timeliness of the motion at the third status conference, or in opposition to the motion.However, it is undisputed that the plaintiff never formally moved to extend the deadline forseeking certification set forth in CPLR 902, which requires a motion for class action certificationto be made "[w]ithin sixty days after the time to serve a responsive pleading has expired for allpersons named as defendants." After the court denied the motion solely on the ground that it wasuntimely, the plaintiff moved for leave to renew, offering an explanation for her delay in seekingcertification. The court denied the motion for leave to renew, concluding, in essence, that theplaintiff had failed to show good cause for extending the 60-day deadline.
The CPLR 902 requirement that a motion for class action certification be made no later than60 days after the time expires for the service of all responsive pleadings is designed to promotean early determination of whether class action relief is appropriate (see O'Hara v DelBello, 47 NY2d 363, 368 [1979]). "Although prompt resolution of the certification issue isthe desired goal" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B,CPLR C902:1, at 178), the court has the discretion, pursuant to CPLR 2004, to extend the 60-daydeadline either prospectively or retroactively upon good cause shown (see Caesar v ChemicalBank, 118 Misc 2d 118, 121 [1983], affd 106 AD2d 353 [1984], mod on othergrounds 66 NY2d 698 [1985]; Galdamez v Biordi Constr. Corp., 50 AD3d 357, 358 [2008]; Matter of DeBlasio v City of NewYork, 24 Misc 3d 789, 798 [2009]).
Here, while the plaintiff offered no facts to justify an extension of the 60-day deadline insupport of her initial motion for class action certification, after the court raised the issue oftimeliness sua sponte, the plaintiff promptly moved for leave to renew. In support of renewal, theplaintiff's attorney explained the basis for his misapprehension that both the court and thedefendant's attorney had agreed to allow the motion to be made upon the completion ofdiscovery, and advised the court that extensive pre-certification discovery had been necessary toobtain the evidence necessary to support the motion.
Although as a general rule a motion for renewal should be based on newly-discovered facts,this requirement is not an inflexible one, and the court has the discretion to grant renewal evenupon facts known to the movant at the time of the original motion (see Holland v W.M. Realty Mgt., Inc.,64 AD3d 627, 629 [2009]; Wilderv May Dept. Stores Co., 23 AD3d 646, 648 [2005]). Since the issue of timeliness wasnot raised during the status conferences or in opposition to the motion, the court should haveconsidered the additional facts presented by the plaintiff on renewal (see Wilder v May Dept.Stores Co., 23 AD3d at 648). Moreover, upon consideration of these additional facts, thecourt should have exercised its discretion to deem the motion timely made. The recorddemonstrates that the parties engaged in extensive discovery in the 10-month period followingservice of the defendant's answer, and that the expiration of the 60-day period was not broughtup at the status conferences attended by their attorneys. While we reject the plaintiff's assertionthat the court implicitly extended the 60-day period merely by failing to alert her attorney thatthe time to move for class action certification had expired, it is nevertheless clear that counselhad a good-faith belief that a motion for class action certification made at the close of discoverywould be deemed timely. It is also clear that the plaintiff expended considerable resources toobtain the evidence necessary to successfully move for class action certification.
Upon renewal, the plaintiff's motion for class action certification should have been granted."CPLR article 9, which authorizes and sets forth the criteria to be considered in granting classaction certification, is to be liberally construed" (Beller v William Penn Life Ins. Co. of N.Y., 37 AD3d 747, 748[2007]; see Globe Surgical Supply vGEICO Ins. Co., 59 AD3d 129, 135 [2008]; Wilder v May Dept. Stores Co., 23AD3d at 649; Lauer v New York Tel. Co., 231 AD2d 126, 130 [1997]). Contrary to thedefendant's contention, the plaintiff sustained her burden of demonstrating that the statutory[*3]prerequisites for class action certification set forth in CPLR901 (a) were satisfied (see Emilio vRobison Oil Corp., 63 AD3d 667, 668 [2009]; Beller v William Penn Life Ins. Co.of N.Y., 37 AD3d at 748; Wilder v May Dept. Stores Co., 23 AD3d at 649; seealso Dupler v Costco Wholesale Corp., 249 FRD 29 [2008]). The defendant's admission thatSam's Club received $940 million in membership fees for the 2006 fiscal year supports a findingthat there are numerous class members. In addition, the members share common questions of factor law with regard to the defendant's alleged policy of backdating renewal memberships, and theclaims of the plaintiff, who submitted adequate proof that she is, in actuality, a Sam's Clubmember, are typical of those of the class (see Emilio v Robison Oil Corp., 63 AD3d at668; Dupler v Costco Wholesale Corp., 249 FRD at 37-40). The plaintiff alsodemonstrated that she can fairly and adequately protect the interests of the class, and that theclass action procedure is superior to other potential methods of adjudicating the controversy(see Emilio v Robison Oil Corp., 63 AD3d at 668; Dupler v Costco WholesaleCorp., 249 FRD at 41-42, 47-48). Rivera, J.P., Eng, Chambers and Hall, JJ., concur.