| Osarczuk v Associated Univs., Inc. |
| 2015 NY Slip Op 05653 [130 AD3d 592] |
| July 1, 2015 |
| Appellate Division, Second Department |
[*1]
| Barbara Osarczuk et al.,Appellants, v Associated Universities, Incorporated, Commonly Known asBrookhaven National Laboratory, Respondent. Joseph Rombola et al., ProposedIntervenors-Appellants. (And a Third-Party Action.) |
Lippes & Lippes, Buffalo, N.Y. (Richard J. Lippes of counsel), Glynn Mercepand 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 plaintiffs-appellants and proposed intervenors-appellants (one brief filed).
Nixon Peabody LLP, Albany, N.Y. (Daniel J. Hurteau and Michael Cohen ofcounsel), for respondent.
In an action, inter alia, to recover damages for personal injuries and injury toproperty, the plaintiffs and the proposed intervenors appeal from an order of the SupremeCourt, Suffolk County (Farneti, J.), dated May 16, 2013, which denied their motionpursuant to CPLR 1013 for leave to the proposed intervenors to intervene in the action asplaintiffs, with leave to renew upon proper papers.
Ordered that the order is reversed, on the law and in the exercise of discretion, withcosts, and the appellants' motion pursuant to CPLR 1013 for leave to the proposedintervenors to intervene in the action as plaintiffs is granted.
The defendant, Associated Universities, Incorporated, operated the BrookhavenNational Laboratory (hereinafter together BNL) for approximately 50 years, from 1947until 1998. This action was commenced in 1996, by 21 named plaintiffs, to recover, interalia, damages for personal injuries and injury to property allegedly resulting from BNL'semission of nuclear and nonnuclear hazardous and toxic substances into the air, soil, andgroundwater over decades.
The plaintiffs moved to certify a class of all persons who lived, owned property, orworked within a 10-mile radius of BNL. BNL cross-moved for summary judgmentdismissing the complaint on the ground, among others, that the nuclear radiation emittedby BNL did not exceed guidelines promulgated by the federal Nuclear RegulatoryCommission. The Supreme Court granted BNL's cross motion for summary judgmentdismissing the complaint, and denied the plaintiffs' motion for class action certificationas academic. On appeal, this Court reinstated the causes of action arising from allegedexposure to nonnuclear hazardous and toxic materials, and remitted the matter to theSupreme Court for a determination on the merits of the plaintiffs' motion for class actioncertification (see Osarczuk vAssociated Univs., Inc., 36 AD3d 872 [2007]).
Upon remittitur, the plaintiffs renewed their motion for class action certification. The[*2]Supreme Court granted the plaintiffs' renewedmotion to the extent of certifying two subclasses: (1) residential homeowners whoseproperties lie in a designated area of North Shirley, and whose property values may havebeen adversely affected, or who may have lost the use and enjoyment of their property asa result of exposure to nonnuclear hazardous and toxic materials emanating from BNL,and (2) persons in that same designated area who may have suffered economic loss,including but not limited to, the expense of securing alternative water supplies, includingthe cost to hook up to the public water supply and the yearly cost of that water, as a resultof the same exposure. On appeal, in a decision and order dated March 8, 2011, this Courtreversed that portion of the Supreme Court's order, and denied the plaintiffs' renewedmotion for class action certification, on the ground that individualized investigation andproof was required on the issues of causation and damages (see Osarczuk v Associated Univs.,Inc., 82 AD3d 853 [2011]).
Thereafter, the plaintiffs, along with 167 members of the proposed classes, movedtogether for leave to allow those 167 proposed class members to intervene in the actionas plaintiffs pursuant to CPLR 1013, on the ground that "when a class action isde-certified, putative members of the de-certified class are given the opportunity tointervene into the case because of their allegations of common questions of law andfact." The plaintiffs and the proposed intervenors (hereinafter collectively the appellants)alleged that the proposed intervenors owned property in the vicinity of BNL in 1996 andafter, and presented common questions of law and fact with respect to loss of propertyvalues, and the cost of using municipal water instead of well water. They submitted athird amended complaint in support of their motion.
BNL, in opposition, argued that "[t]he plaintiffs do not provide even a single factrelative to the intervenors—other than names and addresses." BNL further assertedthat the claims of the proposed intervenors were time-barred. In reply, the appellantsclaimed that the filing of a class action complaint tolled the statute of limitations until afinal determination was made in 2011 with respect to the class action certification.
The Supreme Court, in the order appealed from (see Osarczuk v AssociatedUniv., Inc., 2013 NY Slip Op 31138[U], *3 [Sup Ct, Suffolk County 2013]), deniedthe appellants' motion for leave to intervene, noting that CPLR 1013 provides, inpertinent part, that permissive intervention is permitted "when the person's claim ordefense and the main action have a common question of law or fact. In exercising itsdiscretion, the court shall consider whether the intervention will unduly delay thedetermination of the action or prejudice the substantial rights of any party." The courtconcluded that "there can be no dispute that the intervention of 167 plaintiffs wouldfurther delay this matter, unduly complicate the litigation, and prejudice the defendant inhaving to defend against a plethora of new claims" (id. at *4). The court furtherconcluded that the appellants failed to comply with CPLR 1014, which provides that "[a]motion to intervene shall be accompanied by a proposed pleading setting forth the claimor defense for which intervention is sought," on the ground that the third amendedcomplaint was not "tailor[ed] to the facts and circumstances surrounding each individualplaintiff['s] claim" (id. at *4). The motion was denied "without prejudice andwith leave to renew upon proper papers to replead in accordance with the requirementsof CPLR 1013 and 1014, if so advised" (id. at *5).
Contrary to the conclusion of the Supreme Court, the appellants complied withCPLR 1014, which requires that a motion to intervene "shall be accompanied by aproposed pleading setting forth the claim or defense for which intervention is sought," bysubmitting a third amended complaint (see e.g. Farfan v Rivera, 33 AD3d 755 [2006]). Therefore,there was no need to deny the motion for leave to intervene with leave to renew uponproper papers.
Further, the causes of action of the proposed intervenors are all based upon commontheories of liability and, thus, satisfy the requirement of CPLR 1013 that their causes ofaction involve common questions of law or fact. Contrary to the Supreme Court'sconclusion, BNL would not be faced with a "plethora of new claims." Moreover, BNLdid not demonstrate that intervention would substantially prejudice any party, or causeundue delay (see Matter of Rent Stabilization Assn. of N.Y. City v New York StateDiv. of Hous. & Community Renewal, 252 AD2d 111, 116 [1998]).
To the extent BNL argues, as an alternate ground for affirmance (see ParochialBus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]), that the claims ofthe proposed intervenors are [*3]time-barred, thiscontention is without merit. The statute of limitations applicable to this toxic tort actionis the three-year statute of limitations pursuant to CPLR 214-c, which runs from the dateof discovery or the date when the injury should have been discovered through theexercise of due diligence (seeSuffolk County Water Auth. v Dow Chem. Co., 121 AD3d 50, 57-58 [2014]).In American Pipe & Constr. Co. v Utah (414 US 538, 553 [1974]), theUnited States Supreme Court held that, under the federal class action rule,commencement of a class action suit tolls the running of the statute of limitations for allpurported members of the class who make timely motions to intervene after the court hasfound the suit inappropriate for class action status. New York courts have adopted thisrule (see Snyder v Town Insulation, 81 NY2d 429, 432 [1993]; Paru v Mutual of Am. Life Ins.Co., 52 AD3d 346, 347 [2008]; Yollin v Holland Am. Cruises, 97 AD2d720 [1983]; Clifton Knolls Sewerage Disposal Co. v Aulenbach, 88 AD2d 1024,1025 [1982]). Thus, the claims of the proposed intervenors were not time-barred at thetime the motion for leave to intervene was made.
Accordingly, the Supreme Court should have granted the appellants' motion for leaveto intervene. Skelos, J.P., Dillon, Austin and Hinds-Radix, JJ., concur. [Prior CaseHistory: 2013 NY Slip Op 31138(U).]