Coyle v. Long Island Power Auth. (In re Long Island Power Auth. Hurricane Sandy Litig.)

• Citation: 200 A.D.3d 1040,161 N.Y.S.3d 174
• Decision Date: 29 December 2021
• Docket Number: 2018–09629,Index No. 601434/13
• Parties: In the MATTER OF LONG ISLAND POWER AUTHORITY HURRICANE SANDY LITIGATION. John Coyle, et al., respondents, v. Long Island Power Authority, appellant, et al., defendant.
• Court: New York Supreme Court Appellate Division

200 A.D.3d 1040

161 N.Y.S.3d 174

In the MATTER OF LONG ISLAND POWER AUTHORITY HURRICANE SANDY LITIGATION.

John Coyle, et al., respondents,

v.Long Island Power Authority, appellant, et al., defendant.

2018–09629

Index No. 601434/13

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

Argued—October 12, 2021

December 29, 2021

Rivkin Radler LLP, Uniondale, NY (Evan H. Krinick, Michael P. Versichelli, Brian L. Bank, Michelle A. Bholan, and Catalina De La Hoz of counsel), for appellant.

Wolf Haldenstein Adler Freeman & Herz LLP, New York, NY (Gregory Nespole and Matthew M. Guiney of counsel), Wolf Popper LLP, New York, NY (Joshua W. Ruthizer and Sean M. Zaroogian of counsel), Parker Waichman LLP, Port Washington, NY (Jerrold S. Parker, Jay Breakstone, and Michael Werner of counsel), and Douglas & London, P.C., New York, NY (Michael A. London and Virginia E. Anello of counsel), for respondents (one brief filed).

SYLVIA O. HINDS–RADIX, J.P., COLLEEN D. DUFFY, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In a putative class action, inter alia, to recover damages for breach of contract, the defendant Long Island Power Authority appeals from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered July 3, 2018. The order granted the plaintiffs' motion pursuant to CPLR article 9 for class certification.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the plaintiffs' motion pursuant to CPLR article 9 for class certification is denied.

On October 29, 2012, Hurricane Sandy devastated portions of the East Coast, including much of Long Island and the Rockaways. As a result of that storm and a nor'easter which followed approximately one week later, approximately 95% of electric customers served by the Long Island Power Authority (hereinafter LIPA) lost power, some for extended periods of time. In this putative class action, the plaintiffs, individually and on behalf of others similarly situated, seek, inter alia, to recover damages for breach of contract from, among others, LIPA (see Matter of Long Is. Power Auth. Hurricane Sandy Litig., 165 A.D.3d 1138, 1139, 87 N.Y.S.3d 576 ; Matter of Long Is. Power Auth. Hurricane Sandy Litig., 134 A.D.3d 1119, 1119–1120, 24 N.Y.S.3d 313 ). The plaintiffs moved pursuant to CPLR article 9 for class certification. The Supreme Court granted the motion, and LIPA appeals. We reverse.

Pursuant to CPLR 901(a), a party seeking class certification has the burden to satisfy the requirements of numerosity, commonality, typicality, adequacy of representation, and superiority (see Maddicks v. Big City Props., LLC, 34 N.Y.3d 116, 123, 114 N.Y.S.3d 1, 137 N.E.3d 456 ; City of New York v. Maul, 14 N.Y.3d 499, 508, 903 N.Y.S.2d 304, 929 N.E.2d 366 ; Moreno v. Future Health Care Servs., Inc., 186 A.D.3d 594, 595, 129 N.Y.S.3d 113 ; Cooper v. Sleepy's, LLC, 120 A.D.3d 742, 743, 992 N.Y.S.2d 95 ). These requirements are to be liberally construed in keeping with the goals of CPLR article 9 (see Andryeyeva v. New York Health Care, Inc., 33 N.Y.3d 152, 183, 100 N.Y.S.3d 612, 124 N.E.3d 162 ; City of New York v. Maul, 14 N.Y.3d at 509, 903 N.Y.S.2d 304, 929 N.E.2d 366 ; Medina v. Fairway Golf Mgt., LLC, 177 A.D.3d 727, 728, 112 N.Y.S.3d 187 ).

In general, the determination of whether to certify a class action lies within the sound discretion of the trial court (see City of New York v. Maul, 14 N.Y.3d at 509, 903 N.Y.S.2d 304, 929 N.E.2d 366 ; Olmann v. Willoughby Rehabilitation & Health Care Ctr., LLC, 186 A.D.3d 837, 839, 130 N.Y.S.3d 46 ; Cooper v. Sleepy's, LLC, 120 A.D.3d at 743, 992 N.Y.S.2d 95 ). Nevertheless, this Court has the same discretion and may exercise it even where the trial court has not abused its discretion (see City of New York v. Maul, 14 N.Y.3d at 509, 903 N.Y.S.2d 304, 929 N.E.2d 366 ; Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 52, 698 N.Y.S.2d 615, 720 N.E.2d 892 ; Pludeman v. Northern Leasing Sys., Inc., 74 A.D.3d 420, 422, 904 N.Y.S.2d 372 ).

"In order to certify a lawsuit as a class action, the court must be satisfied that questions of law or fact common to the class predominate over any question affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy" ( Olmann v. Willoughby Rehabilitation & Health Care Ctr., LLC, 186 A.D.3d at 839, 130 N.Y.S.3d 46 [internal quotation marks omitted]; see Osarczuk v. Associated Univs., Inc., 82 A.D.3d 853, 855, 918 N.Y.S.2d 538 ). Commonality cannot be determined via a " ‘mechanical test’ " ( City of New York v. Maul, 14 N.Y.3d at 514, 903 N.Y.S.2d 304, 929 N.E.2d 366, quoting Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 97, 434 N.Y.S.2d 698 ; see Maddicks v. Big City Props., LLC, 34 N.Y.3d at 125, 114 N.Y.S.3d 1, 137 N.E.3d 456 ). Instead, "it is ‘predominance, not identity or unanimity,’ that is the linchpin of commonality" ( City of New York v. Maul, 14 N.Y.3d at 514, 903 N.Y.S.2d 304, 929 N.E.2d 366, quoting Friar v. Vanguard Holding Corp., 78 A.D.2d at 98, 434 N.Y.S.2d 698 ; see Maddicks v. Big City Props., LLC, 34 N.Y.3d at 125, 114 N.Y.S.3d 1, 137 N.E.3d 456 ).

When evaluating a motion for class certification, the court's inquiry "vis-a`-vis the merits is limited to a determination as to whether on the surface there appears to be a cause of action which is not a sham" ( Brandon v. Chefetz, 106 A.D.2d 162, 168, 485 N.Y.S.2d 55 ; see Medina v. Fairway Golf Mgt., LLC, 177 A.D.3d at 729, 112 N.Y.S.3d 187 ; Super Glue Corp. v. Avis Rent A Car Sys., 132 A.D.2d 604, 607, 517 N.Y.S.2d 764 ). Here, an examination of the plaintiffs' claims demonstrates that the claims are unsuitable for class treatment because the fact determinations are hopelessly individual. In addition, the plaintiffs' attempt to characterize their causes of action as sounding in breach of contract is not successful.

The plaintiffs base their claims against LIPA on an allegation that LIPA failed to fulfill its promise, made in 2006, that it would spend $25 million annually on a 20–year "storm hardening" project (i.e., $500 million total) intended to render its electric system more durable and resilient in the face of major storms. However, even assuming that the plaintiffs can demonstrate that LIPA was obligated to spend the promised funds and that it failed to do so, Hurricane Sandy hit in 2012, 14 years before the expiration of the 20–year period. Accordingly, LIPA could, at most, be held liable for the work which should have been completed in the first 6 years of the project. This fact, in turn, would require a determination of what work should have been completed in that period and whether that work would have prevented individual class members' power outages.

As the foregoing illustrates, to establish liability, the plaintiffs would have to demonstrate that, had LIPA performed storm hardening work consistent with its promise, their outages would have been shortened or avoided. This is, as LIPA argues, a fact-driven inquiry which is both speculative and hopelessly individual since it would require the factfinder to determine not only what should have been completed by October 2012, but also to speculate whether that work, had it been performed, would have prevented or shortened individual class members' outages.

The plaintiffs assume that, had LIPA committed resources to its storm hardening project consistent with its promise, the class members' power outages would have been avoided. LIPA, however, proffered evidence that most of the named plaintiffs' outages had multiple causes. Further, since LIPA was only 6 years into its 20–year...