        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1340
CA 15-00297
PRESENT: SCUDDER, P.J., SMITH, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


MARY DELUCA, INDIVIDUALLY, AND AS
CLASS REPRESENTATIVE, ET AL.,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

TONAWANDA COKE CORPORATION, ESTATE OF
J.D. CRANE, DECEASED,
MARK KAMHOLZ, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.
(APPEAL NO. 1.)


HODGSON RUSS LLP, BUFFALO (HUGH M. RUSS, III, OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

WILENTZ, GOLDMAN & SPITZER, P.A., NEW YORK CITY (ALFRED M. ANTHONY OF
COUNSEL), COLLINS & COLLINS ATTORNEYS, LLC, BUFFALO, GORDON & GORDON,
SPRINGFIELD, NEW JERSEY, AND HOBBIE, CORRIGAN & BERTUCIO, P.C.,
EATONTOWN, NEW JERSEY, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Paula L.
Feroleto, J.), entered January 7, 2015. The order, inter alia, denied
the motion of defendants-appellants to dismiss plaintiffs’ class
allegations.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Mary DeLuca (plaintiff) commenced this action,
individually and on behalf of purported classes of personal injury
plaintiffs seeking damages caused by defendants’ negligent release of
chemicals into the atmosphere. In appeal No. 1, Tonawanda Coke
Corporation, the Estate of J.D. Crane, deceased, and Mark Kamholz
(defendants) appeal from an order that, inter alia, denied their
motion to dismiss the class allegations and granted plaintiff’s cross
motion for an extension of time in which to seek class certification.
In appeal No. 2, defendants appeal from an order that, inter alia,
granted in part plaintiff’s motion for class certification and
certified two classes of plaintiffs, one seeking damages for alleged
loss in property values, and the other seeking damages for alleged
loss of quality of life.

     Contrary to defendants’ contention in appeal No. 1, we conclude
that Supreme Court did not abuse its discretion in granting
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                                                         CA 15-00297

plaintiff’s cross motion for an extension of time in which to seek
class certification. “While class certification is an issue that
should be determined promptly (see CPLR 902), a trial court has
discretion to extend the deadline upon good cause shown” (Rodriguez v
Metropolitan Cable Communications, 79 AD3d 841, 842; see CPLR 2004).
Here, plaintiff made a showing of good cause by submitting evidence
that further discovery was needed and that plaintiff had agreed to
defendants’ request to delay discovery until a criminal proceeding
against defendants was complete (see Chavarria v Crest Hollow Country
Club at Woodbury, Inc., 109 AD3d 634, 634; Rodriguez, 79 AD3d at 842;
see generally Galdamez v Biordi Constr. Corp., 50 AD3d 357, 358).
Furthermore, plaintiff established that she “had a good-faith belief
that a motion for class action certification made at the close of
discovery would be deemed timely” (Argento v Wal-Mart Stores, Inc., 66
AD3d 930, 933).

     In appeal No. 2, defendants contend that class certification was
not appropriate because common questions of law or fact do not
predominate over questions affecting only individual members. We
reject that contention. “[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” (Rife v Barnes Firm, P.C., 48 AD3d 1228, 1229, lv
dismissed in part and denied in part 10 NY3d 910). A plaintiff
seeking class certification has the “burden of establishing the
prerequisites of CPLR 901 (a) and thus establish[ing] . . .
entitlement to class certification” (Freeman v Great Lakes Energy
Partners, L.L.C., 12 AD3d 1170, 1171; see East2West Constr. Co., LLC v
First Republic Corp. of Am., 115 AD3d 1206, 1208; Rife, 48 AD3d at
1229).

      Contrary to defendants’ contention, plaintiff established that
there are common questions of law or fact whether defendants
negligently discharged chemicals into the atmosphere and whether such
negligent conduct caused decreases in property values or quality of
life in the affected area (see Olden v LaFarge Corp., 383 F3d 495,
508-509, cert denied 545 US 1152; Mejdrech v Met-Coil Sys. Corp., 319
F3d 910, 911-912; see generally Freeman, 12 AD3d at 1171). Although
the individual class members may have sustained differing amounts of
damages, it is well settled that “ ‘the amount of damages suffered by
each class member typically varies from individual to individual, but
that fact will not prevent the suit from going forward as a class
action if the important legal or factual issues involving liability
are common to the class’ ” (Borden v 400 E. 55th St. Assoc., L.P., 24
NY3d 382, 399; see generally City of New York v Maul, 14 NY3d 499,
514).
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                                                         CA 15-00297

     We also reject defendants’ contention that plaintiff failed to
meet the typicality requirement of CPLR 901 (a) (3). Plaintiff
established that the claims of the class representative arose “ ‘out
of the same course of conduct and are based on the same theories as
the other class members’ ” (Freeman, 12 AD3d at 1171). Contrary to
defendants’ contention, because “the typicality requirement relates to
the nature of the claims and the underlying transaction, not the
amount or measure of damages, [the fact that the class
representative’s] damages may differ from those of other members of
the class is not a proper basis to deny class certification” (Pruitt v
Rockefeller Ctr. Props., 167 AD2d 14, 22; see Borden, 24 NY3d at 399).

     Contrary to defendants’ further contention, the court provided
adequate descriptions of the certified classes (see CPLR 903; Globe
Surgical Supply v GEICO Ins. Co., 59 AD3d 129, 137), and determining
who is a member of each class would not require “individualized
examination of each person[ ]” (Mitchell v Barrios-Paoli, 253 AD2d
281, 291).




Entered:   December 31, 2015                   Frances E. Cafarell
                                               Clerk of the Court
