Corsello v. Verizon N.Y., Inc.

• Decision Date: 14 September 2010
• Citation: 76 A.D.3d 941,907 N.Y.S.2d 431
• Parties: William CORSELLO, et al., appellants, v. VERIZON NEW YORK, INC., formerly known as New York Telephone Company, et al., respondents.
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 431

76 A.D.3d 941

William CORSELLO, et al., appellants,

v.VERIZON NEW YORK, INC., formerly known as New York Telephone Company, et al., respondents.

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

Sept. 14, 2010.

David M. Wise, Babylon, N.Y., for appellants.

Kirkland & Ellis LLP, New York, N.Y. (Joseph Serino, Jr., and Patrick F. Philbin pro hac vice of counsel) for respondents.

In an action, inter alia, to recover damages for inverse condemnation, the plaintiffs appeal from an order of the Supreme Court, Kings County (Demarest, J.), dated November 5, 2009, which denied their motion, among other things, for class action certification pursuant to CPLR article 9, and denied their separate motion for leave to amend the first amended complaint.

ORDERED that the appeal from so much of the order as denied the plaintiffs' motion for leave to amend the first amended complaint is dismissed, as academic; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

Contrary to the plaintiffs' contentions, the Supreme Court properly denied their motion, inter alia, for class action certification. The Supreme Court properly found that the proposed class definition was overbroad ( see Klein v. Robert's Am. Gourmet Food, Inc., 28 A.D.3d 63, 71, 808 N.Y.S.2d 766). Furthermore, the plaintiffs failed to establish that questions of law or fact common to the class predominate over any questions affecting only individual members ( see CPLR 901[a][2]; Morrissey v. Nextel Partners, Inc., 72 A.D.3d 209, 895 N.Y.S.2d 580; Solomon v. Bell Atl. Corp., 9 A.D.3d 49, 53, 777 N.Y.S.2d 50; Hazelhurst v. Brita Prods. Co., 295 A.D.2d 240, 241-242, 744 N.Y.S.2d 31; Small v. Lorillard Tobacco Co. Inc., 252 A.D.2d 1, 9, 679 N.Y.S.2d 593 affd. 94 N.Y.2d 43, 698 N.Y.S.2d 615, 720 N.E.2d 892;Mitchell v. Barrios-Paoli, 253 A.D.2d 281, 291, 687 N.Y.S.2d 319), and that their claims or defenses were typical of those of the class ( see CPLR 901[a][3]; Dimich v. Med-Pro, Inc., 34 A.D.3d 329, 330, 826 N.Y.S.2d 3; Ross v. Amrep Corp., 57 A.D.2d 99, 102-103, 393 N.Y.S.2d 410).

The appeal from so much of the order as denied the plaintiffs' motion for leave to amend the first amended complaint has been rendered academic in light of our determination on a companion appeal ( see Corsello v. Verizon New York, Inc., --- A.D.3d ----, --- N.Y.S.2d ----, 2010 WL 3583531 [Appellate Division ...