Wojciechowski v. Republic Steel Corp.
| Decision Date | 25 January 1979 |
| Citation | 67 A.D.2d 830,413 N.Y.S.2d 70 |
| Parties | Stephen and Patricia WOJCIECHOWSKI et al., Individually and on behalf of all others similarly situated, Appellants, v. REPUBLIC STEEL CORPORATION, Heckett Company, Division of Harsco Corporation, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Paul Shatkin, Buffalo, for appellants.
Siegel, McGee, Kelleher, Hirschorn & Munley, Buffalo, by Michael McGee, Buffalo, for respondent, Republic Steel Corp.
Brown, Maloney, Gallup, Roach & Busteed, Buffalo, by Michael McGee, Buffalo, for respondent, Heckett Co., Div. of Harsco Corp.
Before MOULE, J. P., and DILLON, HANCOCK, SCHNEPP and WITMER, JJ.
The order dismissing plaintiffs' complaint insofar as it purports to allege a class action under Article 9 of the CPLR should be affirmed. The complaint contains allegations of damage in specific amounts to residential properties owned by certain of the named plaintiffs occurring on January 28, 1977 when defendants allegedly caused precipitator dust to become airborne thereby causing discoloration and depreciation in value of the residences. Paragraph 32 of the complaint alleges: "Plaintiffs bring this cause of action against the defendants on behalf of all residential property owners situated in the South District whose real estate has been damaged, discolored and depreciated, and whose damages have not been paid by the defendants herein resulting from the negligence, carelessness and unlawfulness of the defendants occurring on or about January 28, 1977." The record establishes conclusively that the two central issues pertaining to each residential property (i. e., whether any discoloration was caused by defendants' actions on January 28, 1977 and, if so, the extent of the damages resulting therefrom) are questions which require individual investigation and proof and which must be decided separately with respect to each individual claim (see Rosenfeld v. Robins Co., 63 A.D.2d 11, 407 N.Y.S.2d 196; Kanon v. Brookdale Hosp. Med. Center, 87 Misc.2d 816, 386 N.Y.S.2d 274; and see Vincent v. Hughes Air West, Inc., 557 F.2d 759 (9th Cir. 1977); Advisory Committee's Note, Proposed Rules of Civil Procedure, Rule 23 (39 F.R.D. 69, 103)).
Furthermore, it appears from plaintiffs' complaint that the class has not been and cannot be described with certainty. Concededly the location of a property within the South District of Buffalo is not determinative and membership in the class necessarily...
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