Rubman v. Osuchowski

Decision Date25 July 2018
Docket NumberCA 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.
CourtNew 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

82 N.Y.S.3d 677

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...

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