NICHOLSON v. KEYSPAN CORP (2009)

In an action, inter alia, to recover damages for injury to real property, the plaintiffs appeal (1), as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Sgroi, J.), dated September 28, 2007, as denied their motion for class action certification pursuant to CPLR article 9, and (2) from an order of the same court dated October 22, 2007, which denied their cross motion, in effect, for summary judgment on the cause of action sounding in strict liability.

ORDERED that the order dated September 28, 2007, is affirmed insofar as appealed from;  and it is further,

ORDERED that the order dated October 22, 2007, is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the respondents.

 CPLR article 9 authorizes class actions, and sets forth the criteria to be considered in granting class action certification, which are to be liberally construed (see Dank v. Sears Holding Mgt. Corp., 59 A.D.3d 584, 872 N.Y.S.2d 722;  Kidd v. Delta Funding Corp., 289 A.D.2d 203, 734 N.Y.S.2d 848;  Liechtung v. Tower Air, 269 A.D.2d 363, 364, 702 N.Y.S.2d 111;  Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 91, 434 N.Y.S.2d 698).   The determination to certify a class action rests in the sound discretion of the Supreme Court (see Dank v. Sears Holding Mgt. Corp., 59 A.D.3d at 584, 872 N.Y.S.2d 722;  Kidd v. Delta Funding Corp., 289 A.D.2d at 203, 734 N.Y.S.2d 848).

Contrary to the plaintiffs' contentions, the Supreme Court properly denied their motion for class action certification.   The plaintiffs failed to establish that the class is so numerous that joinder of all members is impracticable (see CPLR 901[a][1];  Feder v. Staten Is. Hosp., 304 A.D.2d 470, 471, 758 N.Y.S.2d 314;  Simon v. Cunard Line, 75 A.D.2d 283, 289, 428 N.Y.S.2d 952;  Dupack v. Nationwide Leisure Corp., 70 A.D.2d 568, 569, 417 N.Y.S.2d 63).   The plaintiffs also failed to establish that questions of law or fact common to the class predominate over any question affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy (see CPLR 901[a][2], [5];  Aprea v. Hazeltine Corp., 247 A.D.2d 564, 565, 669 N.Y.S.2d 61;  Robertson v. Smalis Painting Co., 134 A.D.2d 881, 522 N.Y.S.2d 53;  Evans v. City of Johnstown, 97 A.D.2d 1, 3, 470 N.Y.S.2d 451;  Wojciechowski v. Republic Steel Corp., 67 A.D.2d 830, 830-831, 413 N.Y.S.2d 70).

 Additionally, the Supreme Court properly denied the plaintiffs' cross motion, in effect, for summary judgment on their cause of action sounding in strict liability.   Certain activities, due to their abnormally dangerous nature, give rise to strict liability (see Doundoulakis v. Town of Hempstead, 42 N.Y.2d 440, 448, 398 N.Y.S.2d 401, 368 N.E.2d 24;  Searle v. Suburban Propane Div. of Quantum Chem. Corp., 263 A.D.2d 335, 339, 700 N.Y.S.2d 588;  Mikula v. Duliba, 94 A.D.2d 503, 507, 464 N.Y.S.2d 910).   Here, however, the plaintiffs did not establish their prima facie entitlement to judgment as a matter of law on their cause of action sounding in strict liability because they failed to proffer evidence that any of the defendants had engaged in an abnormally dangerous activity (see DeFoe Corp. v. Semi-Alloys, Inc., 156 A.D.2d 634, 635-636, 549 N.Y.S.2d 133).   In light of this determination, we need not examine the sufficiency of the opposition papers submitted by the defendants KeySpan Corp., KeySpan Energy Corp., KeySpan Gas East Corp., and Marketspan Corp., d/b/a KeySpan Energy (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The plaintiffs' remaining contention is improperly raised for the first time on appeal.