| Borden v 400 E. 55th St. Assoc., L.P. |
| 2013 NY Slip Op 02815 [105 AD3d 630] |
| April 25, 2013 |
| Appellate Division, First Department |
| Lorraine Borden, on Behalf of Herself and All OthersSimilarly Situated, Respondent, v 400 East 55th Street Associates, L.P.,Appellant. |
—[*1] Bernstein Liebhard, LLP, New York (Gabriel G. Galletti of counsel), forrespondents.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered April 13,2012, which, upon renewal, granted plaintiff's motion for class certification and relatedrelief, unanimously affirmed, without costs. Appeal from order, same court and Justice,entered November 10, 2011, which denied plaintiff's motion for class certification,without prejudice to renew upon submission of an affidavit by plaintiff demonstratingthat she is a proper class representative, unanimously dismissed, without costs, asacademic.
CPLR 901 (b), which prohibits a class action to recover a penalty or minimumdamages imposed by statute where the statute does not explicitly authorize a classrecovery thereof, does not bar plaintiff's putative class action. Plaintiff has waived herright to treble damages under Rent Stabilization Law of 1969 (RSL) (AdministrativeCode of City of NY) § 26-516 (a), and individual class members will be allowed toopt out of the class to pursue their treble damages claims, should they believe there is alawful basis for doing so (see Downing v First Lenox Terrace Assoc., 105 AD3d—, 2013 NY Slip Op 02853 [1st Dept 2013]; Gudz v Jemrock Realty Co.,LLC, 105 AD3d 625 [1st Dept 2013] [decidedsimultaneously herewith]). Although plaintiff did not waive her right to reimbursementfor alleged overcharges and interest, and for attorneys' fees, those claims do not renderher action an action to recover a penalty for purposes of CPLR 901 (b) (seeDowning; Gudz).
Interpreting the requirements of the class action statute liberally (see City of New York v Maul,14 NY3d 499, 509 [2010]), we find that the motion court did not exercise itsdiscretion improvidently in finding those requirements satisfied (see Pludeman v Northern LeasingSys., Inc., 74 AD3d 420, 422 [1st Dept 2010]). The issues of when defendantreceived J-51 benefits, whether defendant deregulated apartments while receiving thosebenefits, which tenants resided in those apartments during those time periods, andwhether defendant wrongfully charged market rents while accepting J-51 benefits arecommon issues that "predominate," thereby meeting the commonality requirement ofCPLR 901 (a) (2) (see id. at 423). The need to conduct individualized damagesinquiries does not obviate the utility of the class mechanism for this action, given thepredominant common issues of liability (see Godwin Realty Assoc. v CATVEnters., 275 AD2d 269, 270 [1st Dept 2000]; Pruitt v Rockefeller Ctr.Props., 167 AD2d 14, 22 [1st Dept 1991]).[*2]
Defendant's counterclaim for rent arrears doesnot cause plaintiff to be an atypical member of the class. Her claim is typical of theclaims of all class members in that each flows from defendant's alleged unlawfulderegulation of apartments while receiving J-51 benefits (see Friar v VanguardHolding Corp., 78 AD2d 83, 99 [2d Dept 1980]). "[T]hat the underlying facts ofeach individual plaintiff's claim vary, or that [defendant's] defenses vary, does notpreclude class certification" (Pludeman, 74 AD3d at 424). Defendant'scounterclaim does not materially add to the complexity or difficulty of resolvingplaintiff's individual claim, and defendant's suggestion that plaintiff might be inclined tosettle her case to evade liability on the counterclaim is speculative.
The record indicates that plaintiff possesses an "adequate understanding of the case"to enable her to serve as class representative (Rollin v Frankel & Co., 290 AD2d368, 369 [1st Dept 2002]), and that her attorneys possess the requisite "competence,experience and vigor" to serve as class counsel (see Fiala v Metropolitan Life Ins. Co., 52 AD3d 251, 251[1st Dept 2008]). Plaintiff's intent to waive treble damages on behalf of the class does notrender her an inadequate representative, given that any class member who wishes topursue a claim for treble damages for willful overcharge may opt out and bring anindividual action therefor (see Gudz).
We have considered defendant's other contentions and find them unavailing.Concur—Andrias, J.P., Renwick, Freedman and Feinman, JJ.