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You are here: Home1 / Civil Procedure2 / Class Certification Should Have Been Granted; Plaintiffs Waived Statutory...
Civil Procedure, Landlord-Tenant

Class Certification Should Have Been Granted; Plaintiffs Waived Statutory Treble Damages

The First Department reversed the dismissal of a putative class action by tenants against a landlord alleging the landlord deregulated the apartments while receiving tax incentive benefits from the city.  Because the tenants waived the statutory treble damages provision, the First Department determined that the case no longer involved “penalties” and was therefore not precluded by CPLR 901.  In a full-fledged opinion by Justice Andrias, the First Department wrote:

Pursuant to CPLR 901(b), “[u]nless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained in a class action.” However, even where a statute creates or imposes a penalty, the restriction of CPLR 901(b) is inapplicable where the class representative seeks to recover only actual damages and waives the penalty on behalf of the class, and individual class members are allowed to opt out of the class to pursue their punitive damages. … . * * * Rent Stabilization Code (9 NYCRR) § 2520.13, which states that “[a]n agreement by the tenant to waive the benefit of any provision of the RSL or this Code is void,” does not require a different result. “[P]laintiffs are seeking to waive their entitlement to treble damages unilaterally, not through agreement. Thus, allowing the class action to proceed would not frustrate the RSC’s purpose of [avoiding] situations whereby the landlord attempts to circumvent the [RSC’s] benefits” … . Downing v First Lenox Terrace Assoc, 2013 NY Slip Op 02853, 1st Dept, 4-25-13

 

April 25, 2013
Tags: First Department
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PLAINTIFF’S FALLING INTO A HOLE ON THE PREMISES AFTER HIS TRUCK WAS LOADED WAS NOT THE RESULT OF “USE” OF THE TRUCK WITHIN THE MEANING OF THE INSURANCE POLICIES (FIRST DEPT).
THE ARBITRATION AWARD IS VALID EVEN IF BASED ON AN ERROR OF LAW OR FACT; THE FAILURE TO PROVIDE A LETTER OF ENGAGEMENT DID NOT PRECLUDE THE ATTORNEY’S ACTION FOR BREACH OF CONTRACT; CPLR 5225 DOES NOT REQUIRE A SPECIAL PROCEEDING TO ENFORCE THE JUDGMENT (FIRST DEPT).
THE CONTRACTOR THAT HIRED THE SUBCONTRACTOR FOR WHICH THE INJURED PLAINTIFF WORKED WAS THE CONDOMINIUM DEFENDANTS’ STATUTORY AGENT AND THEREFORE CAN BE HELD LIABLE IN THIS LABOR LAW 240(1) ACTION (FIRST DEPT).
DEFENSE COUNSEL REPRESENTED BOTH DEFENDANT AND A WITNESS AGAINST DEFENDANT, CONFLICT OF INTEREST REQUIRED A NEW TRIAL, EVIDENCE ELICITED CAN NOT BE USED AT SECOND TRIAL (FIRST DEPT).
MISREPRESENTATION CAUSE OF ACTION AGAINST BEAR STEARNS RE COLLATERALIZED DEBT OBLIGATIONS AND RESIDENTIAL MORTGAGE-BACKED SECURITIES SHOULD NOT HAVE BEEN DISMISSED WITH PREJUDICE.
In a Hybrid Action, the Causes of Action Seeking Money Damages Were Distinct from the Causes of Action Seeking Annulment of Town a Resolution/Four-Month Statute of Limitations Did Not Apply to Causes of Action Seeking Money Damages
QUESTION OF FACT WHETHER PLAINTIFF WAS COMPARATIVELY NEGLIGENT IN THIS LABOR LAW 241(6) ACTION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).

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Class Certification in Landlord-Tenant Action Upheld Class Certification Properly Granted; Rent Overcharge and Attorney’s-Fees...
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