BARDSLEY v. GREAT LAKES INDUSTRIAL DEVELOPMENT LLC LLC (2021)

On January 19, 2021, this Court issued a Decision and Order (the “Decision and Order”) (Doc. 84), denying Plaintiffs’ application, pursuant to CPLR 901, for class (and subclass) certification and to amend the complaint to add representative plaintiffs (the “Original Application”) (Doc. 16).

Plaintiffs have applied, pursuant to CPLR 2221, for leave to reargue and renew the denial of the Original Application (Doc. 87). Defendant, Great Lakes Industrial Development, LLC (“Great Lakes Industrial”), has cross-applied for leave to reargue that aspect of the Decision and Order in which the court determined that Plaintiffs likely satisfied the commonality and typicality requirements of CPLR 901 (Doc. 102), and Defendant Industrial Materials Recycling, LLC (“Industrial Materials”), has cross-applied for leave to reargue that aspect of the Decision and Order in which the court determined that Plaintiffs likely satisfied the commonality requirement of CPLR 901 (Doc. 122).

On April 6, 2021, the Court heard virtual oral argument (via Microsoft TEAMS) of all applications.

STANDARD OF REVIEW

A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d]). Thus, a motion for leave “to reargue ‘may be granted only upon a showing that the court overlooked or misapprehended the facts or the law, or for some reason mistakenly arrived at its earlier decision’ ” (Smith v. City of Buffalo, 122 AD3d 1419, 1420 [4th Dept 2014] [internal citations omitted]).

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and shall contain reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221[e]). “[A] motion for leave to renew ‘is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation’ ” (Heltz v. Barratt, 115 AD3d 1298, 1300 [4th Dept], aff'd 24 NY3d 1185 [2014]).

DISCUSSION

Plaintiffs’ Application

In determining the Original Application, the Court evaluated the facts and circumstances of this matter against the criteria to obtain class certification, as set forth in CPLR 901.

Section 901 requires that Plaintiffs establish the following by submitting “competent evidence in admissible form” (Weinstein v. Jenny Craig Operations, Inc., 138 AD3d 546, 547 [1st Dept 2016]): (i) the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable; (ii) there are questions of law or fact common to the class which predominate over any questions affecting only individual members; (iii) the claims or defenses of the representative parties are typical of the claims or defenses of the class; (iv) the representative parties will fairly and adequately protect the interests of the class; and (v) a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

In denying the Original Application, the Court held that Plaintiffs failed to satisfy the first and fifth criteria.

The Numerosity Requirement; CPLR 901(a)(1)

With respect to the numerosity requirement, the court held, in relevant part, that the class does not consist of the in excess of over two thousand (2,000) residences within the Affected Area ¹ . Rather, and by Plaintiffs’ own admission, only six (6) people responded affirmatively to Plaintiffs’ mass mailing and door-to-door canvassing, meaning the potential class would likely consist of approximately eight (8) members (Doc. 84, p. 5).

In the pending application, Plaintiffs contend that the court erred by concluding that there were only eight (8) persons interested in asserting claims against the Defendants as a result of the Fire, such persons consisting of the two (2) existing Plaintiffs and six (6) additional persons identified in the Original Application (Doc. 16, p. 2). Plaintiffs are represented by Vinal and Vinal, P.C. (the “Vinal Firm”). Plaintiffs contend that there are in excess of seventy (70) persons whom have sought to be represented by the Vinal Firm as claimants for injuries related to their person and/or property, allegedly arising out of the Fire.

On January 21, 2021, a mere two (2) days after the court issued the Decision and Order, the Vinal Firm commenced an action entitled Torres v. Great Lakes Industrial (Sup. Ct., Erie County, Index No. 800789/21), which asserts claims on behalf of thirty-eight (38) persons, allegedly arising out of the Fire, which are similar to the claims asserted in the instant matter (see Index No. 800789/21, Doc. 1) (the “Torres Action”). On March 3, 2021, the Vinal Firm amended the Complaint in the Torres Action for the purpose of adding additional plaintiffs, bringing the number of plaintiffs in that matter to in excess of eighty (80) (see Index No. 800789/21, Doc. 3).

At the time the court issued the Decision and Order on January 19, 2021, the court was aware of Mr. and Mrs. Bardsley, who are the sole plaintiffs in this action, and the six (6) additional persons Plaintiffs sought to add to it. While the Vinal Firm was aware of the in excess of seventy (70) additional individuals who are now named as plaintiffs in the Torres Action (as amended), for an inexplicable reason unknown to this court, the Vinal Firm did not apprise the court of the identity (or existence) of these other individuals. Plaintiffs’ Original Application sought, in part, to add six (6) people to this action as party plaintiffs and neither identified, nor otherwise referred to the additional individuals named in the Torres Action just two (2) days after the court issued the Decision and Order.

Plaintiffs contend that in opposing the Original Application, Industrial Materials misled the court by failing to identify the parties who would later be named in the Torres Action. However, it is unclear that counsel for Industrial Materials was aware of these people and that they intended to bring claims against it (and Great Lakes Industrial) in connection with the Fire. In addition, Plaintiffs filed a reply submission in connection with the Original Application, in which they failed to identify the (then) known parties to the soon-to-be-filed Torres Action.

Under these circumstances, Plaintiffs are left with the record they created and failed to correct prior to the issuance of the Decision and Order.

Plaintiffs have failed to provide a reasonable (let alone, any) justification for their failure to apprise the court of the persons known to them at the time the Decision and Order was issued, who were immediately thereafter named as plaintiffs in the Torres Action (Chiappone v. William Penn Life Ins. Co. of New York, 96 AD3d 1627, 1627—28 [4th Dept 2012] [renewal denied where plaintiff failed to establish that the purported new evidence was not in existence or not available at the time of the prior motion]). Thus, the court shall not consider them for purposes of the numerosity requirement, and Plaintiffs’ application for renewal is denied for having failed to comply with CPLR 901(a)(1).

With respect to reargument, the number of putative class members remains not “so numerous that joinder of all members ․ is impracticable” (CPLR 901[a][1]).

The Superiority Requirement; CPLR 901(a)(5)

The court held as follows with respect to the superiority requirement:

In light of the fact that only six persons responded to Plaintiffs’ counsel's canvas of the Affected Area, it is clear to the Court that the best way to proceed is not via a class action (Doc. 84, p. 9).

Having held above that Plaintiffs failed to satisfy the numerosity requirement, they are unable to satisfy the superiority requirement.

Defendants’ Cross-Applications

Great Lakes Industrial has cross-applied for leave to reargue that portion of the Decision and Order holding that Plaintiffs likely satisfied the commonality and typicality requirements of CPLR 901. Industrial Materials has similarly cross-applied, but limited to the commonality requirement.

 The Commonality Requirement; CPLR 901(a)(2)

The court relied on DeLuca v. Tonawanda Coke Corp. (134 AD3d 1534 [4th Dept 2015]), a toxic tort case, in holding that Plaintiffs satisfied the commonality requirement. The plaintiffs in DeLuca sought to certify three (3) classes, consisting of (i) a property damage/property stigma subclass; (ii) a loss of quality of life subclass; and (iii) a medical monitoring subclass, as a result of exposure to alleged contamination from the Tonawanda Coke facility (Doc. 85, pp. 5-8). The lower court in DeLuca granted those aspects of the application to certify the property damage/property stigma and loss of quality of life subclasses, but denied the request to certify the medical monitoring subclass, and the Appellate Division, Fourth Department affirmed (Id.).

Upon reconsideration, the court hereby determines that it properly relied on DeLuca in finding that Plaintiffs likely satisfied the commonality requirement regarding property damage claims, but that it erred in holding that DeLuca supports a finding that Plaintiffs satisifed such requirement relative to personal injury claims.

With respect to personal injury claims, “the claims asserted in the complaint involve a preponderance of individualized factual questions that render this case unsuitable for class treatment (CPLR 901[a][2])” (CLC/CFI Liquidating Trust v. Bloomingdale's, Inc., 50 AD3d 446, 447 [1st Dept 2014]). CLC/CFI Liquidating Trust further held that “in light of the number of individual inquiries required as to each vendor and transaction, plaintiffs failed to demonstrate that a class action would be a superior method of resolving these issues” (Id.).

Individual issues of medical causation and damages predominate over any common questions of law or fact. There are numerous individual, specific, claimed injuries and damages in just the small group of six (6) putative class representatives that Plaintiffs seek to add to this action. Those few individuals have alleged injuries and damages that vary greatly in degree, severity and type, and include two (2) types of cancer (in an infant and an elderly person), death (of an infant and an elderly person), thyroid issues, throat nodules, osteoarthritis, lung issues, asthma, heart palpitations, anxiety, and the cost of sending a minor to live with another family member (Doc. 123, ¶¶ 54-57). Discovery for each of the claimed injuries and damages will necessarily be unique to each plaintiff.

Considering the additional plaintiffs in the Torres Action, there are even more disparate and wide-ranging alleged injuries and damages, including “stroke-like symptoms,” neurological injuries, throat cancer, death, expenses from evacuating, infections, aggravation of various pre-existing conditions, need for oxygen, “zone of danger damages,” COPD, autoimmune disorder, gastroparesis, cardiac arrest, skin irritation, early retirement, aggravation of psoriatic arthritis, seizures, sleep apnea, chest pain, stomach issues, migraines, aggravation of Lupus, blood and circulation issues, hair loss, acute myeloid leukemia, liver failure and stroke that resulted in death, development of allergies and chemical sensitivities, impaired vision, and aggravation of kidney disease (Docs. 89, 90).

The facts and circumstances of the instant matter are distinguishable from those in Canestaro v. Raymour and Flanigan Furniture Co. (Sup Ct, Erie Cnty, Index No. 803450/2013) and Robinson v. The Buffalo News, Inc. (Sup Ct, Erie Cnty, Index No. 801427/2019), both assigned to this court, where class certification was deemed appropriate.

In Canestaro, the defendants were the operators of in excess of eighty (80) retail showrooms, eight (8) clearance centers, 17 (seventeen) customer care centers and two (2) distribution centers serving customers in New York, New Jersey, Connecticut, Delaware, Massachusetts, Pennsylvania and Rhode Island (Index No. 803450/2013, Doc. 1, ¶1).

The plaintiffs in Canestaro were purchasers of defendant's furniture and related products (the “Purchasers”) and alleged, inter alia, that defendants offer to the general public a financing arrangement whereby a customer can obtain “interest-free financing” for a period of several years (the “Free Financing Promotion”) by purchasing furniture using a Raymour & Flanigan credit card; such Free Financing Promotion represented to consumers that they will receive the benefit of a certain number of months to pay for their purchases without incurring any additional cost or penalty; but that without disclosure and contrary to their advertising and the mis-impression it creates, defendants maintained a company-wide policy of charging customers availing themselves of the Free Financing Promotion a hidden up-front charge and/or fee that is not charged to customers who pay without using the Free Financing Promotion (Id., at ¶¶2-4).

Robinson was an action arising out of the alleged misclassification of newspaper delivery carriers (the “Carriers”) who worked for defendant since January 31, 2013, and were allegedly misclassified as independent contractors.

The Carriers alleged, inter alia, that despite being classified as independent carriers, defendant controlled and treated them like employees in that the Carriers worked seven (7) days a week; delivered newspapers to defendant's customers; were subject to defendant's standards for delivery, including dictated routes; and were required to complete deliveries by specific times (Index No. 801427/2019, Doc. 1, ¶2).

The Carriers further alleged that they were economically dependent on defendant and had virtually no opportunity for profit or loss, because they are paid cents for each newspaper delivered (a rate set by defendant); the boundaries of their routes were set by Defendant; and the newspapers were delivered to defendant's customers and thus the Carriers had essentially no opportunity to expand their purported business; and that the Carriers were trained by Defendant or its agents and were terminated at-will, like employees, despite a 30-day notice requirement for termination in their independent contractor agreements (Id.)

In addition, the Carriers alleged that as a result of their being mis-classified, defendant subjected them to expenses and fines that were in violation of New York Labor Law Section 193, which limits permissible deductions from pay to a narrow list. The Carriers were assessed fines, called “Complaint Charges,” of $3 each time a customer receiving a daily paper complained about their delivery (untimely or not in the precise place the customer requested) and $5 for a complaint by a customer receiving a Sunday paper (Id., at ¶3).

The Purchasers in Canestaro and the Carriers in Robinson were similar in that their damages related to transactions that, for purposes of the respective actions, were identical to each other of such Purchaser and Carrier. Discovery in both actions was streamlined and straight-forward, simply requiring (i) the Purchasers to confirm that they had applied for and received the underlying financing and to submit copies of their purchase receipts; and (ii) the Carriers to submit evidence of their hours and any fines.

The simplicity and commonality of the claims in Canestaro and Robinson stand in stark contrast to the highly individualized claims of personal injury in the instant matter, which shall require individualized depositions, not suited for a class action.

For the foregoing reasons, the commonality requirement of CPLR 901(a)(2) cannot be met.

 The Typicality Requirement; CPLR 901(a)(3)

The court held that Plaintiffs met the typicality requirement, because their claims arise out of the same course of conduct, namely, the Fire (Doc. 84, p. 8). There are no bases to disturb this holding.

In light of the foregoing, it is hereby

ORDERED, that Plaintiffs’ application for leave for renewal is granted, and upon renewal, the Original Application is denied; and it is further

ORDERED, that Plaintiffs’ application for leave for reargument is granted, and upon reargument, the Original Application is denied; and it is further

ORDERED, that Great Lakes Industrial's cross-application for leave to reargue the portion of the Decision and Order that found Plaintiffs likely satisfied the commonality and typicality requirements of CPLR 901 is granted and, upon reargument, the cross-application is granted, in part, in that Plaintiffs have failed to satisfy the commonality requirement of CPLR 901(a)(2) relative to personal injury claims. However, the cross-application is denied to the extent that Plaintiffs have satisfied the commonality requirement of CPLR 901(a)(2) relative to property damage claims, and they have satisfied the typicality requirement of CPLR 901(a)(3) relative to all claims; and it is further

ORDERED, that Industrial Material's cross-application for leave to reargue the portion of the Decision and Order that found Plaintiffs likely satisfied the commonality requirement of CPLR 901 is granted and, upon reargument, the cross-application is granted, in part, in that Plaintiffs have failed to satisfy the commonality requirement of CPLR 901(a)(2) relative to personal injury claims. However, the cross-application is denied to the extent that Plaintiffs have satisfied the commonality requirement of CPLR 901(a)(2) relative to property damage claims; and it is further

ORDERED, that upon the Torres Action being assigned to this court as related to the instant matter, the court shall join it and the instant matter for purposes of discovery and a joint trial limited to the issue of liability.

This constitutes the Decision and Order of this Court. Submission of an order by the parties is not necessary. The delivery of a copy of this Decision and Order by this Court shall not constitute notice of entry.

FOOTNOTES

1.   Terms defined herein are similarly defined in the Decision and Order.

Timothy J. Walker, J.