Rubman v. Osuchowski
Decision Date | 25 July 2018 |
Docket Number | CA 18–00191,761 |
Parties | David RUBMAN and Jenya Rubman, Individually, and on Behalf of All Others Similarly Situated, Plaintiffs–Appellants, v. William OSUCHOWSKI and OPR Property Management, LLC, Defendants–Respondents. |
Court | New York Supreme Court — Appellate Division |
163 A.D.3d 1471
82 N.Y.S.3d 675
David RUBMAN and Jenya Rubman, Individually, and on Behalf of All Others Similarly Situated, Plaintiffs–Appellants,
v.
William OSUCHOWSKI and OPR Property Management, LLC, Defendants–Respondents.
761
CA 18–00191
Supreme Court, Appellate Division, Fourth Department, New York.
Entered: July 25, 2018
THE LAW OFFICES OF E. DAVID HOSKINS, LLC, ALBANY (E. DAVID HOSKINS OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
BARCLAY DAMON LLP, SYRACUSE (DAVID G. BURCH, JR., OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the motion in part and reinstating the amended complaint insofar as asserted by plaintiff Jenya Rubman, individually, and on behalf of all others similarly situated, and as modified the order is affirmed without costs.
Memorandum: Plaintiff Jenya Rubman (Jenya) entered into a 12–month residential lease agreement with defendants, who own and manage more than 200 residential units in the City of Syracuse. Pursuant to the lease agreement, Jenya was required to pay a security deposit that would be returned by defendants within 30 days of the end of the lease term. After Jenya signed the lease and paid the security deposit, Jenya's father, plaintiff David Rubman (David), executed an addendum to the lease agreement in which he agreed to cosign the lease with Jenya. After the
lease term concluded, defendants advised Jenya that only part of her security deposit would be returned as a result of various deductions that had been made by defendants. Plaintiffs commenced a class action against defendants seeking damages and declaratory and injunctive relief on behalf of themselves and all other persons who, within four years prior to the date of the filing of the amended complaint, rented residential property from defendants, provided defendants with a security deposit, and were not returned the entire security deposit upon termination of the lease. Plaintiffs alleged, inter alia, that defendants failed to return their security deposit within the time set forth in the lease, and commingled security deposit moneys with other funds inasmuch as defendants used the same checking account to return part of Jenya's security deposit and to reimburse Jenya for "overpaid rent." Supreme Court granted defendants' pre-answer motion to dismiss the amended complaint. We modify the order by denying the motion in part and reinstating the amended complaint as asserted by plaintiff Jenya Rubman, individually, and on behalf of all others similarly situated.
We agree with plaintiffs that the court erred in granting the motion with respect to the class action allegations. We conclude that, "accept[ing] the facts as alleged in the [amended] complaint as true, [and] accord[ing] plaintiffs the benefit of every possible inference" ( Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ), the amended complaint contains sufficient allegations to withstand that part of defendants' motion seeking dismissal of the class action allegations pursuant to CPLR 3211(a)(7). "[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" ( DeLuca v. Tonawanda Coke Corp., 134 A.D.3d 1534, 1535, 22 N.Y.S.3d 768 [4th Dept. 2015] [internal quotation marks omitted]; see Rife v. Barnes Firm, P.C. , 48 A.D.3d 1228, 1229, 852 N.Y.S.2d 551 [4th...
To continue reading
Request your trial-
People v. Lively
...not be excluded as the source of the DNA found on the victim's nail and that the chance of randomly selecting an unrelated individual 82 N.Y.S.3d 675as the source of the DNA was less than one in 114,000. Here, as in People v. Glass , 150 A.D.3d 1408, 55 N.Y.S.3d 469 (3d Dept. 2017), lv deni......
-
Garcia v. Best Prof'l Home Care Agency, Inc.
... ... Big City Props., LLC, 34 N.Y.3d ... 116, 123-128 [2019]; Quinn v. Parkoff Operating ... Corp., 178 A.D.3d 450, 450 [1st Dept 2019]; Rubman ... v. Osuchowski, 163 A.D.3d 1471, 1472-1473 [4th Dept ... 2018]; Ackerman v. New York Hosp. Med. Ctr. of ... Queens, 127 A.D.3d 794, 796 [2d ... ...
-
Brighton Grassroots, LLC v. Town of Brighton
...Code chapter 113, because there is no private right of action to enforce that provision (see generally Rubman v. Osuchowski, 163 A.D.3d 1471, 1474, 82 N.Y.S.3d 675 [4th Dept. 2018] ). Even assuming, arguendo, that petitioner's 12th and 13th causes of action challenging the validity of the T......
-
Shipman v. Swift
...that the security deposit funds were commingled in violation of section 7—103(1) is permitted ..." Rubman v. Osuchowski , 163 A.D.3d 1471, 1473-1474, 82 N.Y.S.3d 675 (4th Dept. 2018) (citations and internal quotations and brackets omitted). "It is (then) the landlord's burden to prove that ......