Barbara Smilewicz, etc., appellant, v. Sears Roebuck and Co., respondent. (2011)

Argued-February 2, 2011

DECISION & ORDER

In an action to recover damages for violation of General Business Law § 349, unjust enrichment, and breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (Pfau, J.), dated November 24, 2009, which denied her motion for class action certification pursuant to CPLR article 9.

ORDERED that the order is affirmed, without costs or disbursements.

CPLR article 9, which authorizes class actions and sets forth the criteria to be considered in granting class action certification, is to be liberally construed (see Dank v. Sears Holding Mgt. Corp., 59 AD3d 584;  Kidd v. Delta Funding Corp., 289 A.D.2d 203;  Liechtung v. Tower Air, 269 A.D.2d 363;  Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 91).  “The determination to grant class action certification rests in the sound discretion of the Supreme Court, ‘and any error should be resolved in favor of allowing the class action’ ” (Kidd v. Delta Funding Corp., 289 A.D.2d at 203, quoting Liechtung v. Tower Air, 269 A.D.2d at 364).

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in denying her motion to certify a class action.   The plaintiff failed to sustain her burden of demonstrating that questions of law or fact common to the class predominate over any question affecting only individual members (see CPLR 901[a][2];  Morrissey v. Nextel Partners, Inc., 72 AD3d 209, 212-215;  CLC/CFI Liquidating Trust v. Bloomingdale's, Inc., 50 AD3d 446;  Solomon v. Bell Atl. Corp., 9 AD3d 49, 54), and that her claims were typical of those of the class (see CPLR 901[a][3];  Hazelhurst v. Brita Prods.   Co., 295 A.D.2d 240, 242-243;  Zehnder v Ginsburg & Ginsburg Architects, 254 A.D.2d 284;  Ross v. Amrep Corp., 57 A.D.2d 99, 101-102).

SKELOS, J.P., ENG, BELEN and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court