Cherry v. Resource America, Inc.

15 A.D.3d 1013, 788 N.Y.S.2d 911, 2005 N.Y. App. Div. LEXIS 1059

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2005
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Chautauqua County (Frederick J. Marshall, J.; Joseph Gerace, J., decision), entered March 18, 2004. The order granted plaintiffs’ motion for class certification.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We conclude that Supreme Court properly granted plaintiffs’ motion for class certification pursuant to CPLR article 9, for the reasons set forth in our decision in Freeman v Great Lakes Energy Partners (12 AD3d 1170 [2004]). Here, as in Freeman, plaintiffs met their burden of establishing the prerequisites of CPLR 901 (a) and thus established their entitlement to class certification {see generally Casey v Prudential Sec., 268 AD2d 833, 834 [2000]). Plaintiffs submitted evidence that they are 3 of approximately 471 landowners who are similarly situated, one of the four named plaintiffs having died following commencement of the action. Thus, plaintiffs thereby established that “the class is so numerous that joinder of all members ... is impracticable” (CPLR 901 [a] [1]). In addition, we note that the commonality requirement set forth in CPLR 901 (a) (2) “requires predominance, not identity or unanimity, among class members” (Friar v Vanguard Holding Corp., 78 AD2d 83, 98 [1980]), and here the common questions of law and fact concern defendants’ alleged common use of a methodology to manipulate the figure upon which plaintiffs’ royalties were based. Present — Pigott, Jr., PJ., Kehoe, Martoche, Smith and Pine, JJ.