Argento v. Wal-Mart Stores, Inc.

• Decision Date: 27 October 2009
• Docket Number: 2008-09246.,2008-10761.
• Citation: 888 N.Y.S.2d 117,66 A.D.3d 930,2009 NY Slip Op 7778
• Parties: FRANCINE ARGENTO, Appellant, v. WAL-MART STORES, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

66 A.D.3d 930

888 N.Y.S.2d 117

2009 NY Slip Op 7778

FRANCINE ARGENTO, Appellant, v. WAL-MART STORES, INC., Respondent.

2008-09246.

2008-10761.

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

Decided October 27, 2009.

In an action, inter alia, to recover damages for violation of General Business Law § 349, the plaintiff appeals, as limited by her brief, from (1) so much of an order of the Supreme Court, Westchester County (Nastasi, J.), entered September 4, 2008, as denied that branch of her motion which was for class action certification pursuant to CPLR article 9, and (2) so much of an order of the same court entered October 28, 2008, as denied that branch of her motion which was for leave to renew.

Ordered that the order entered October 28, 2008 is reversed insofar as appealed from, on the law and in the exercise of discretion, that branch of the plaintiff's motion which was for leave to renew is granted, and, upon renewal, so much of the order entered September 4, 2008, as denied that branch of the plaintiff's prior motion which was for class action certification pursuant to CPLR article 9 is vacated, and that branch of the plaintiff's prior motion is granted; and it is further,

Ordered that the appeal from the order entered September 4, 2008 is dismissed as academic in light of our determination of the appeal from the order entered October 28, 2008; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

The plaintiff, individually and as a proposed representative of a putative class, commenced this action alleging, inter alia, that the defendant engaged in deceptive business practices in violation of General Business Law § 349 by routinely backdating renewal memberships at Sam's Club stores. The plaintiff claims that as a result of the backdating policy, members who renew after the date upon which their one-year membership terms expire are nevertheless required to pay the full annual fee for less than a full year of membership.

The defendant served an answer dated August 10, 2007 and over the course of the next 10 months, the parties engaged in discovery relevant to both the statutory prerequisites for seeking class action certification and the merits of the action. During this 10-month period, the Supreme Court conducted several status conferences at which schedules for the completion of discovery were established. The plaintiff's attorney alleges that he advised the court at the first two status conferences that the plaintiff intended to move, inter alia, for certification of a statewide class at the completion of discovery. When the plaintiff's motion was thereafter filed at the third status conference, a date for the submission of opposing papers was selected. There is no indication in the record that the defendant raised an objection to the timeliness of the motion at the third status conference, or in opposition to the motion. However, it is undisputed that the plaintiff never formally moved to extend the deadline for seeking certification set forth in CPLR 902, which requires a motion for class action certification to be made "[w]ithin sixty days after the time to serve a responsive pleading has expired for all persons named as defendants." After the court denied the motion solely on the ground that it was untimely, the plaintiff moved for leave to renew, offering an explanation for her delay in seeking certification. The court denied the motion for leave to renew, concluding, in essence, that the plaintiff had failed to show good cause for extending the 60-day deadline.

The CPLR 902 requirement that a motion for class action certification be made no later than 60 days after the time expires for the service of all responsive pleadings is designed to promote an early determination of whether class action relief is appropriate (see O'Hara v Del Bello, 47 NY2d 363, 368 [1979]). "Although prompt resolution of the certification issue is the desired goal" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C902:1, at 178), the court has the discretion, pursuant to CPLR 2004, to extend the 60-day deadline either prospectively or retroactively upon good cause shown (see Caesar v Chemical Bank, 118 Misc 2d 118, 121 [1983], affd 106 AD2d 353 [1984], mod on other grounds 66 NY2d 698 [1985]; Galdamez v Biordi Constr. Corp., 50 AD3d 357, 358 [2008]; Matter of DeBlasio v City of New York, 24 Misc 3d 789, 798 [2009]).

Here, while the plaintiff offered no facts to justify an extension of the 60-day deadline in support of her initial motion for class action certification, after the court raised the issue of timeliness sua sponte, the plaintiff promptly moved for leave to renew. In support of renewal, the plaintiff's attorney explained the basis for his misapprehension that both the court and the defendant's attorney had agreed to allow the motion to be made upon the completion of discovery, and advised the court that extensive pre-certification discovery had been necessary to obtain the evidence necessary to...