TOSNER v. TOWN OF HEMPSTEAD

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Supreme Court, Appellate Division, Second Department, New York.

James TOSNER, et al., respondents, v. TOWN OF HEMPSTEAD, et al., appellants.

Decided: November 22, 2004

SONDRA MILLER, J.P., ROBERT W. SCHMIDT, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ. Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Peter A. Bee and Tricia A. Heino of counsel), for appellants. Louis D. Stober, Jr., LLC, Garden City, N.Y., for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs James Tosner and Denise Lane and others similarly situated are full-time employees entitled to the benefits of certain collective bargaining agreements dated January 1, 1998, and January 1, 2001, respectively, between the defendant Town of Hempstead and the plaintiff Civil Service Employees Association, Inc., A.F.S.C.M.E., Local 1000, A.F.L.-C.I.O., by its Local 880, the defendants appeal from an order of the Supreme Court, Nassau County (Peck, J.), entered May 21, 2003, which, after a hearing, granted the plaintiffs' motion for class action certification pursuant to CPLR article 9.

ORDERED that the order is affirmed, with costs.

 CPLR article 9, which authorizes class actions and sets forth the criteria to be considered in granting class action certification, must be liberally construed (see 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, 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 grant class action certification rests in the sound discretion of the trial court (see Liechtung v. Tower Air, supra at 364, 702 N.Y.S.2d 111;  see also Kidd v. Delta Funding Corp., supra at 203, 734 N.Y.S.2d 848;  Friar v. Vanguard Holding Corp., supra at 100, 434 N.Y.S.2d 698).   Contrary to the defendants' contention, the Supreme Court providently determined that the statutory criteria set forth in CPLR 901 were satisfied, and that class certification was warranted (see Branch v. Crabtree, 197 A.D.2d 557, 603 N.Y.S.2d 490;  Dagnoli v. Spring Val. Mobile Vil., 165 A.D.2d 859, 560 N.Y.S.2d 323;  Friar v. Vanguard Holding Corp., supra).   Significantly, once the court determines who is a full-time employee under the relevant collective bargaining agreements, the principal issues affecting the class members' rights will have been determined (see Mimnorm Realty Corp. v. Sunrise Fed. Sav. and Loan Assn., 83 A.D.2d 936, 937-938, 442 N.Y.S.2d 780).

 While class certification is generally disfavored where governmental operations are involved and subsequent plaintiffs will be adequately protected under the principle of stare decisis (see e.g. Matter of Jones v. Berman, 37 N.Y.2d 42, 57, 371 N.Y.S.2d 422, 332 N.E.2d 303;  Matter of Rivera v. Trimarco, 36 N.Y.2d 747, 749, 368 N.Y.S.2d 826, 329 N.E.2d 661), that rule does not apply where, as here, the purported class consists of a large number of identifiable individuals seeking monetary damages (see Matter of Holcomb v. O'Rourke, 255 A.D.2d 383, 383-384, 679 N.Y.S.2d 698;  Matter of Dudley v. Kerwick, 84 A.D.2d 884, 885, 444 N.Y.S.2d 965;  Ammon v. Suffolk County, 67 A.D.2d 959, 413 N.Y.S.2d 469;  Beekman v. City of New York, 65 A.D.2d 317, 318-319, 411 N.Y.S.2d 620).

The defendants' remaining contentions either were never properly raised before the Supreme Court (see Igbara Realty Corp. v. New York Prop. Ins. Underwriting Assn., 63 N.Y.2d 201, 218-219, 481 N.Y.S.2d 60, 470 N.E.2d 858), or are without merit.

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