| Osarczuk v Associated Univs., Inc. |
| 2011 NY Slip Op 01814 [82 AD3d 853] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Barbara Osarczuk et al., Respondents, v AssociatedUniversities, Incorporated, Commonly Known as Brookhaven National Laboratory, Appellant.(And a Third-Party Action.) |
—[*1] Richard J. Lippes, Buffalo, N.Y., Glynn, Mercep & Purcell LLP, Stony Brook, N.Y. (A.Craig Purcell of counsel), and Charles Rosen, Hauppauge, N.Y. (Lynch, Traub, Keefe & Errante[Steven J. Errante], of counsel), for respondents (one brief filed).
In an action, inter alia, to recover damages for injury to property, the defendant appeals, aslimited by its brief, from so much of an order of the Supreme Court, Suffolk County (Farneti, J.),dated December 23, 2009, as granted the plaintiffs' renewed motion for class action certificationto the extent of certifying two subclasses.
Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and inthe exercise of discretion, with costs, and the plaintiffs' renewed motion for class actioncertification is denied in its entirety.
The defendant, Associated Universities, Incorporated, operated the Brookhaven NationalLaboratory (hereinafter BNL) for 50 years, from 1947 until 1998. The instant action wascommenced in 1996, inter alia, to recover damages for injury to property allegedly resulting fromBNL's emission, over several decades, of numerous nuclear and nonnuclear hazardous and toxicsubstances into the air, soil, and groundwater, from various sources and in various ways.
The plaintiffs moved to certify a class of all persons who lived, owned property, or workedwithin a 10-mile radius of BNL. The defendant cross-moved for summary judgment dismissingthe complaint. The Supreme Court granted the defendant's cross motion, and denied theplaintiffs' motion as academic. On appeal, this Court reinstated the causes of action arising fromalleged exposure to nonnuclear, as opposed to nuclear, hazardous and toxic substances, andremitted the matter to the Supreme Court, Suffolk County, for a determination of the plaintiffs'motion for class action certification on the merits (see Osarczuk v Associated Univs., Inc., 36 AD3d 872 [2007]).
Upon remittitur, the plaintiffs renewed their motion for class certification. The SupremeCourt granted the plaintiffs' renewed motion to the extent of certifying two subclasses, to wit: (1)residential homeowners whose properties lie in a designated area in North Shirley, and whoseproperty values may have been adversely affected, or who may have lost the use and enjoymentof their property as a result of [*2]exposure to non-nuclearhazardous and toxic materials emanating from BNL, and (2) persons who may have sufferedeconomic loss, including but not limited to, the expense of securing alternative water supplies,including the cost to hookup to the public water supply and the yearly cost of that water, andother economic losses, as a result of exposure to nonnuclear hazardous and toxic materialsemanating from BNL, in the same designated area of North Shirley (see Osarczuk vAssociated Univs., Inc., 26 Misc 3d 1209[A], 2009 NY Slip Op 52695[U] [2009]). Thedefendant appeals, and we reverse the order insofar as appealed from.
The proponent of a class action has the initial burden of establishing the prerequisites ofclass-action certification (see Emilio vRobison Oil Corp., 63 AD3d 667, 668 [2009]; Canavan v Chase ManhattanBank, 234 AD2d 493, 494 [1996]). "In order to certify a lawsuit as a class action, the courtmust be satisfied that questions of law or fact common to the class predominate over anyquestion affecting only individual members, and that a class action is superior to other availablemethods for the fair and efficient adjudication of the controversy" (Aprea v HazeltineCorp., 247 AD2d 564, 565 [1998]; see CPLR 901 [a]; Friar v Vanguard HoldingCorp., 78 AD2d 83, 89 [1980]). We conclude that, contrary to the Supreme Court'sdetermination, these requirements have not been satisfied here.
At the outset, we acknowledge that " 'the Legislature intended article 9 to be a liberalsubstitute for the narrow class action legislation which preceded it' " (City of New York v Maul, 14 NY3d499, 509 [2010], quoting Friar v Vanguard Holding Corp., 78 AD2d at 91). Indeed,this Court has recognized that "we are not constrained to follow the restrictive views of theFederal courts (or the Federal Advisory Committee)," with respect to the use of class actions inmass tort cases (Rosenfeld v Robins Co., 63 AD2d 11, 16 [1978]; see Evans v City ofJohnstown, 97 AD2d 1, 2 [1983]). "[W]ere this a case where the liability issue could beisolated and treated on a class-wide basis," there might be "strong reasons for certifying theproposed class, although the question of damage would necessarily have to be left for individualdetermination" (Rosenfeld v Robins Co., 63 AD2d at 16; see Godwin Realty Assoc. vCATV Enters., 275 AD2d 269, 270 [2000]). Undoubtedly, there are questions common to allproposed class members that have been raised in this case, such as whether the defendantimproperly handled and used hazardous and toxic material, and whether the defendant engaged inan ultrahazardous activity. Nonetheless, individualized investigation, proof, and determinationwould need to be made, not only on complicated questions such as the extent of damage, if any,to the numerous individual properties and their diminished market value, but as to causation.Under the circumstances presented, questions of whether the emissions of various toxicmaterials, over several decades, from various sources and in various ways, caused injury to theindividual properties and economic loss to the property owners, cannot be resolved on aclass-wide basis (see Aprea v Hazeltine Corp., 247 AD2d at 565; Robertson v SmalisPainting Co., 134 AD2d 881 [1987]; Evans v City of Johnstown, 97 AD2d at 3;Wojciechowski v Republic Steel Corp., 67 AD2d 830 [1979]; cf. Geiger v AmericanTobacco Co., 277 AD2d 420 [2000]; Rosenfeld v Robins Co., 63 AD2d 11, 17-18[1978]). Accordingly, "[i]n view of the complicated issues of fact which must be resolved on anindividual basis . . . common questions of law and fact do not predominate in thisaction," and the class action is not the superior method of adjudication of these claims(Rosenfeld v Robins Co., 63 AD2d at 20). Therefore, the plaintiffs' renewed motion forclass certification should have been denied in its entirety. Mastro, J.P., Skelos, Eng and Sgroi,JJ., concur. [Prior Case History: 26 Misc 3d 1209(A), 2009 NY Slip Op 52695(U).]