Bardsley v. Great Lakes Indus. Dev., LLC

• Decision Date: 03 June 2022
• Docket Number: 295,CA 21-00115
• Citation: 167 N.Y.S.3d 878 (Mem)
• Parties: Dina BARDSLEY and Michael Bardsley, Her Husband, Individually, and as Class Representative Plaintiffs, Plaintiffs-Appellants, v. GREAT LAKES INDUSTRIAL DEVELOPMENT, LLC, and Industrial Materials Recycling, LLC, Defendants-Respondents. (Appeal No. 1.)
• Court: New York Supreme Court — Appellate Division

167 N.Y.S.3d 878 (Mem)

Dina BARDSLEY and Michael Bardsley, Her Husband, Individually, and as Class Representative Plaintiffs, Plaintiffs-Appellants,

v.GREAT LAKES INDUSTRIAL DEVELOPMENT, LLC, and Industrial Materials Recycling, LLC, Defendants-Respondents. (Appeal No. 1.)

295

CA 21-00115

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

Entered: June 3, 2022

VINAL & VINAL, P.C., BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

NIXON PEABODY LLP, ROCHESTER (ZACHARY C. OSINSKI OF COUNSEL), FOR DEFENDANT-RESPONDENT GREAT LAKES INDUSTRIAL DEVELOPMENT, LLC.

GOLDBERG SEGALLA LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR DEFENDANT-RESPONDENT INDUSTRIAL MATERIALS RECYCLING, LLC.

PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND WINSLOW, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Plaintiffs commenced this action, individually and on behalf of purported classes of similarly situated plaintiffs seeking damages from a multi-day warehouse fire caused by defendants’ alleged negligence. In appeal No. 1, plaintiffs appeal from an order denying their motion for, among other things, class certification. Following entry of that order, Supreme Court granted plaintiffs leave to reargue their motion and, upon reargument, adhered to its earlier determination denying plaintiffs’ motion for class certification in its entirety. In appeal No. 2, plaintiffs appeal from that subsequent order insofar as it "denied class certification relative to the personal injury claims."

Initially, we conclude that appeal No. 1 should be dismissed inasmuch as the order in appeal No. 2 superceded the order in appeal No. 1 (see Matter of William Mattar, P.C. v. Hall , 199 A.D.3d 1416, 1417, 157 N.Y.S.3d 657 [4th Dept. 2021] ; see generally Loafin’ Tree Rest., Inc. v. Pardi [Appeal No. 1], 162 A.D.2d 985, 985, 559 N.Y.S.2d 154 [4th Dept. 1990] ).

In appeal No. 2, plaintiffs contend that the court erred in denying their motion insofar as it sought class certification of a personal injury subclass. We reject that contention. "[A] class action may be maintained in New York only after the five prerequisites set forth in CPLR 901 (a) have been met, i.e., the class is so numerous that joinder of all members is impracticable, common questions of law or fact predominate over questions affecting only individual members, the claims or defenses of the representative parties are typical of the class as a whole, the representative parties will fairly and adequately protect the interests of the class, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy" ( Rife v. Barnes Firm, P.C. , 48 A.D.3d 1228, 1229, 852 N.Y.S.2d 551 [4th Dept. 2008], lv denied in part and dismissed in part 10 N.Y.3d 910, 861 N.Y.S.2d 270, 891 N.E.2d 305 [2008] ). "Class action is appropriate only if all five of the requirements are met ... and the burden of establishing those requirements is on the party seeking certification" ( Ferrari v. National Football League , 153 A.D.3d 1589, 1591, 61 N.Y.S.3d 421 [4th Dept. 2017] ).

Plaintiffs failed to establish a "predominance of common questions over individual questions" ( id. ; cf. DeLuca v. Tonawanda Coke Corp. , 134 A.D.3d 1534, 1535-1536, 22 N.Y.S.3d 768 [4th Dept. 2015] ). Here, plaintiffs allege that members of the personal injury subclass suffered a variety of medical ailments as a result of the multi-day warehouse fire, including brain cancer, asthma, and osteoarthritis. Thus, although there may be common questions with respect to defendants’ negligence (see DeLuca , 134 A.D.3d at 1535, 22 N.Y.S.3d 768 ), a determination of whether such negligence caused the injuries alleged with respect to each plaintiff will require detailed individualized assessments of each plaintiff's medical history, including preexisting conditions (see...