YONKERS CONTRACTING COMPANY, INC. v. Romano Enterprises of New York, Inc.
| Decision Date | 14 April 2003 |
| Citation | 757 N.Y.S.2d 339,304 A.D.2d 657 |
| Parties | YONKERS CONTRACTING COMPANY, INC., Respondent,<BR>v.<BR>ROMANO ENTERPRISES OF NEW YORK, INC., et al., Appellants, et al., Defendants. (And Another Title.) |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is reversed insofar as appealed from, with costs, and those branches of the plaintiff's motion which were to certify the action as a class action pursuant to CPLR article 9 and Lien Law § 77 (1) and to determine the method of notice are denied.
The plaintiff, Yonkers Contracting Company, Inc. (hereinafter Yonkers), was a prime contractor under a public improvement contract with the New York City Department of Transportation. On or about December 1, 1999, it entered into a subcontract with the defendant Romano Enterprises, Inc. (hereinafter Romano Enterprises). Romano Enterprises agreed to supervise the painting work and provide labor, materials, and equipment. Thereafter, in February 2001, Romano Enterprises terminated the subcontract.
Yonkers commenced an action against Romano Enterprises, Albert Romano, and the Estate of Ralph J. Romano (hereinafter collectively Romano Enterprises), and Ralph P. Romano. Yonkers alleged that Romano Enterprises breached the subcontract and diverted trust funds in violation of Lien Law article 3-A. Romano Enterprises interposed an answer with counterclaims alleging breach of contract and the foreclosure of a mechanics' lien. Romano Enterprises alleged that Yonkers failed to pay invoices which it submitted on behalf of itself and its subsubcontractors and materialmen. In its reply to the counterclaims, Yonkers alleged that Romano Enterprises exaggerated the amount of the mechanic's lien. Yonkers subsequently moved, among other things, to certify the action as a class action pursuant to CPLR article 9 and Lien Law § 77 (1). Romano Enterprises opposed class certification on the ground that Yonkers had a conflict of interest with the trust beneficiaries. The Supreme Court, inter alia, granted those branches of the plaintiff's motion which were to certify the action as a class action pursuant to CPLR article 9 and Lien Law § 77 (1) and to determine the method of notice. We reverse.
A party seeking class action certification in the context of an action pursuant to Lien Law article 3-A must establish that: (1) there are questions of law or fact common to the class which predominate over any questions affecting only individual members, (2) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (3) the representative parties will fairly and adequately protect the interests of the class (see CPLR 901 [a] [2], [3], [4]; Lien Law § 77 [1]; Matter of Colt Indus. Shareholder Litig., 77...
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