Summary
In Yonkers Contracting Co., the court denied class certification under a Lien Law § 77 claim because the plaintiff did not satisfy its burden to demonstrate that it would adequately protect the interests of the class (Yonkers Contracting Co., 304 AD2d at 659).
Summary of this case from JARA v. STRONG STEEL DOOR, INC.Opinion
2002-03761
Argued February 20, 2003.
April 14, 2003.
In an action to recover damages for breach of contract and pursuant to Lien Law Article 3-A, the defendants Romano Enterprises of New York, Inc., Albert Romano, and the Estate of Ralph J. Romano appeal from so much of an order of the Supreme Court, Westchester County (Rudolph, J.), dated March 21, 2002, as 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.
Treacy, Schaffel, Moore Mueller, New York, N.Y. (John C. Abili of counsel), for appellants.
Welby Brady Greenblatt, LLP, White Plains, N.Y. (Michael E. Greenblatt and Luigi D'Agostino of counsel), for respondent.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, LEO F. McGINITY, BARRY A. COZIER, JJ.
DECISION ORDER
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. Roman (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 sub-subcontractors 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; Matter of Colt Indus. Shareholder Litig., 77 N.Y.2d 185, 194; Atlas Bldg. Sys. v. Rende, 236 A.D.2d 494, 496).
Yonkers failed to satisfy this burden and therefore class certification was improvidently granted. A class action certification must be founded upon an evidentiary basis. The conclusory allegations of Yonkers' counsel were insufficient to establish that all of the requirements for class certification were met (see Weitzenberg v. Nassau County Dept. of Recreation Parks, 249 A.D.2d 538, 539; Canavan v. Chase Manhattan Bank, 234 A.D.2d 493, 494; Chimenti v. American Express Co., 97 A.D.2d 351, 352). In particular, Yonkers failed to establish its ability to diligently protect the interests of the trust beneficiaries in light of its claims against Romano Enterprises (see City of Rochester v. Chiarella, 65 N.Y.2d 92, 100-101; Ackerman v. Price Waterhouse, 252 A.D.2d 179, 202).
ALTMAN, J.P., KRAUSMAN, McGINITY and COZIER, JJ., concur.