Pludeman v. Northern Leasing Sys., Inc.

• Citation: 904 N.Y.S.2d 372,74 A.D.3d 420
• Parties: Kevin PLUDEMAN, et al., Plaintiffs-Appellants-Respondents, v. NORTHERN LEASING SYSTEMS, INC., et al., Defendants-Respondents-Appellants.
• Decision Date: 01 June 2010
• Court: New York Supreme Court Appellate Division

904 N.Y.S.2d 372
74 A.D.3d 420

Kevin PLUDEMAN, et al., Plaintiffs-Appellants-Respondents,
v.
NORTHERN LEASING SYSTEMS, INC., et al., Defendants-Respondents-Appellants.

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

June 1, 2010.

904 N.Y.S.2d 374

Chittur & Associates, P.C., New York (Krishnan Chittur of counsel), for appellants-respondents.

Moses & Singer LLP, New York (Abraham Y. Skoff of counsel), for respondents-appellants.

MAZZARELLI, J.P., SWEENY, MOSKOWITZ, MANZANET-DANIELS, ROMÁN, JJ.

74 A.D.3d 420

Order, Supreme Court, New York County (Martin Shulman, J.), entered June 30, 2009, which, insofar as appealed from as limited by the briefs, upon renewal of plaintiffs' motion for class certification, certified a class, defined the class as, in

904 N.Y.S.2d 375

pertinent part, "[a]ll persons and entities who signed as lessees and/or guarantors ... between January 1, 1999 and January 22, 2004 ... and who made monthly loss and damage waiver ... payments ... to defendant Northern Leasing Systems, Inc.," and excluded from the class (1) lessees whose leases had been assigned to Northern Leasing; (2) lessees who entered into leases after January 22, 2004; and (3) lessees who signed agreements in which the term "LDW" or "Loss & Damage Waiver" was expressly written above the merger clause on the signature page of the agreement, and ordered that Northern Leasing bear the cost of notifying the class, unanimously modified, on the law, to the extent of expanding the class to include (1) lessees/guarantors whose leases were assigned to Northern Leasing; (2) lessees/guarantors who executed leases with Northern Leasing, irrespective of whether they made loss damage waiver payments; and (3) lessees/guarantors who executed leases with

74 A.D.3d 421

Northern Leasing from January 1, 1999 through the date of this action's resolution, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered on or about April 24, 2009, unanimously dismissed, without costs, as subsumed in the appeal from the June 30, 2009 order.

Plaintiffs are small business owners who leased credit card point of sale (POS) equipment from Northern Leasing, which is in the business of leasing such equipment. The POS equipment was purportedly leased pursuant to a four page lease. Plaintiffs contend that the first page of the lease represents the entire agreement and that this page failed to disclose, inter alia, that plaintiffs were subject to a loss damage waiver (LDW) fee. Plaintiffs contend that Northern Leasing breached the equipment lease by charging and collecting LDW payments that were not disclosed on the first page of the lease. Plaintiff's claims sound in breach of contract and fraud.

The motion court granted plaintiffs' application for class certification with respect to the breach of contract claim, finding that plaintiffs had satisfied the requisites of CPLR 901 and 902. The motion court also granted plaintiffs' application seeking that Northern Leasing bear the cost associated with providing court approved notices to all members of the class.

Plaintiffs appeal the portion of the motion court's order that limited the class definition to any lessees who entered into leases with Northern Leasing prior to commencement of this action and to any lessees who made LDW payments. Plaintiffs also appeal the motion court's failure to include in the class definition any lessees whose leases were assigned to Northern Leasing. Lastly, plaintiffs appeal the motion court's exclusion from the class definition of those lessees whose leases made reference to LDW on the first page. Northern Leasing appeals the motion court's decision to certify the class, alleging error in the court's conclusion that common issues predominate over those pertaining to individual class members and that the named plaintiffs are typical of the class, as well as its decision that Northern Leasing should bear the expense of providing court approved notices to all class members.

CPLR 902 states that a class action can only be maintained if the prerequisites promulgated by CPLR 901(a) are met ( Weinberg v. Hertz Corp., 116 A.D.2d 1, 4, 499 N.Y.S.2d 693 [1986], affd. 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 N.E.2d 347 [1987] ). Those prerequisites are (1) that the class is so numerous that joinder of all members is impracticable (numerosity); (2) questions of law or fact common to the class predominate over questions of law or

904 N.Y.S.2d 376

fact affecting individual class members (commonality); (3) the claims or defenses of the class representatives

74 A.D.3d 422

are typical of those in the class (typicality); (4) the class representatives will fairly and adequately protect the interests of the class; and (5) a class action represents the superior method of adjudicating the controversy (superiority) ( id.; CPLR 901[a] ). If the prerequisites set out in CPLR 901(a) are met, the court, in deciding whether to grant class action certification should then consider the additional factors promulgated by CPLR 902 such as the interest of individual class members in maintaining separate actions and the feasibility thereof; the existence of pending litigation regarding the same controversy; the desirability of the proposed class forum; and the difficulties likely to be encountered in managing the class action (CPLR 902; Ackerman v. Price Waterhouse, 252 A.D.2d 179, 191, 683 N.Y.S.2d 179 [1998] ).

Whether the facts presented on a motion for class certification satisfy the statutory criteria is within the sound discretion of the trial court ( Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 52, 698 N.Y.S.2d 615, 720 N.E.2d 892 [1999]; CLC/CFI Liquidating Trust v. Bloomingdale's, Inc., 50 A.D.3d 446, 447, 855 N.Y.S.2d 497 [2008]; Wilder v. May Dept. Stores Co., 23 A.D.3d 646, 649, 804 N.Y.S.2d 423 [2005]; Klein v. Robert's Am. Gourmet Food, Inc., 28 A.D.3d 63, 70, 808 N.Y.S.2d 766 [2006]; Ackerman at 191,...