Rife v. Barnes Firm, P.C.

• Decision Date: 08 February 2008
• Docket Number: CA 07-00104.
• Citation: 48 A.D.3d 1228,2008 NY Slip Op 01199,852 N.Y.S.2d 551
• Parties: LEONDIS RIFE et al., Appellants, v. THE BARNES FIRM, P.C., Formerly Known as CELLINO & BARNES, Respondent.
• Court: New York Supreme Court — Appellate Division

48 A.D.3d 1228

852 N.Y.S.2d 551

2008 NY Slip Op 01199

LEONDIS RIFE et al., Appellants, v. THE BARNES FIRM, P.C., Formerly Known as CELLINO & BARNES, Respondent.

CA 07-00104.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided February 8, 2008.

Appeal from an order of the Supreme Court, Monroe County (David D. Egan, J.), entered November 29, 2006 in a breach of contract action. The order denied plaintiffs' motions for class certification and for partial summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from is unanimously affirmed with costs.

Memorandum:

Plaintiffs commenced this breach of contract action on their own behalf and on behalf of a purported class of personal injury plaintiffs seeking to recoup certain expenses and disbursements that they allegedly were improperly charged when defendant law firm closed their files. Supreme Court properly denied plaintiffs' motions for class certification and for partial summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Addressing first plaintiffs' motion for class certification, we note that 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 (see Ackerman v Price Waterhouse, 252 AD2d 179, 191 [1998]). "Once these prerequisites are satisfied, the court must consider the factors set out in CPLR 902, to wit, the possible interest of 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 the management of a class action" (id.). The party or parties seeking class certification have the burden of establishing compliance with every requirement of both CPLR 901 and 902, and the determination whether to certify a class is "vested in the sound discretion of the court" (Askey v Occidental Chem. Corp., 102 AD2d 130, 137 [1984]). Moreover, "a class action may not be maintained where the wrongs asserted are individual to the different persons involved and each of the persons aggrieved may determine ... the remedy which he [or she] will seek and may be subject to a defense not available against others" (Gaynor v Rockefeller, 15 NY2d 120, 129 [internal quotation marks omitted]). "`Separate wrongs to separate persons, though committed by similar means and even pursuant to a single plan' ... `do not alone create a common or general interest in those who are wronged'" (id., quoting Society Milion Athena, Inc. v National Bank of Greece, 281 NY 282, 292 [1939]).

Here, we conclude that plaintiffs failed to establish that all of the prerequisites of CPLR 901 have been met. We note in particular that plaintiffs failed to establish that the claims of the representative parties or the defenses available against them are typical of the class as a whole. The record establishes that, one month after commencing this action, plaintiff Leondis Rife executed a statement in the context of settling his personal injury action wherein he "agree[d] to the disbursement of the funds set forth above," which included the disbursements to defendant. Plaintiff Virginia Goins-Henry, however, did not remit payment for the expenses she now claims as damages against defendant, and defendant contends that other expenses are also owed. Thus, the defenses available to defendant for the representative plaintiffs are varied and individualized, as are the claims of those two plaintiffs.

Moreover, plaintiffs wholly failed to address the factors set forth in CPLR 902. One of those factors, the existence of pending litigation concerning the same controversy, was particularly relevant inasmuch as, while ...