Bardsley v. Great Lakes Indus. Dev.
| Citation | 2022 NY Slip Op 03614 |
| Decision Date | 03 June 2022 |
| Docket Number | 295 CA 21-00115 |
| 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 |
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.
Appeal from an order of the Supreme Court, Erie County (Timothy J Walker, A.J.), entered January 19, 2021. The order denied the motion of plaintiffs for class certification.
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Initially, we conclude that appeal No. 1 should be dismissed inasmuch as the order in appeal No. 2 superceded the order in appeal No. 1 (see Matter of William Mattar, P.C. v Hall, 199 A.D.3d 1416, 1417 [4th Dept 2021]; see generally Loafin' Tree Rest. v Pardi [appeal No. 1], 162 A.D.2d 985, 985 [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 [4th Dept 2008], lv denied in part and dismissed in part 10 N.Y.3d 910 [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 [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 [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), a determination of whether such...
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