Prohibits a court from denying class certification solely because the action involves governmental operations

Summary of provisions

The bill amends Civil Practice Law and Rules, Section 902(5) to prevent the withholding of "class certification" by a court merely because an action may involve governmental operations.

Justification

Legal Services for New York City, a not-for-profit organization that provides legal service for low-income people, supports this bill. Courts generally have been unwilling to certify a class when governmental operations are involved. The courts reason that a class action is not superior to other available methods (and thus fails to satisfy the requirement of § 901 (a) (5)) because the doctrine of STARE DECISIS provides adequate protection to putative class members. JONES V. BERMAN. 37 N.Y. 2d 42,57 (1975). A judgement in favor of the plaintiff may protect SUBSEQUENT or FUTURE litigants under the doctrine of ST ARE DECISIS.ct. However, it will have no effect whatsoever on persons who already have been and will be adversely affected by an agency's policies from the date the action was filed until a final determination. SEE TINDELL V. KOCH. 154 A.D. 2nd 689,565 N.Y.S. 2nd 789, 792 (1st Dep't 1991). STARE DECISIS applies only after the final determination has been reached in an action that has not been certified as a class action. Potential class members already adversely affected by the agency's policy while the lawsuit is still pending would obtain no relief at all, unless they commenced individual actions before a final determination in order to preserve their rights to the relief sought in a similar proceeding.

SEE ALSO LAMBOY V. GROSS. 129 Misc. 2nd 564, 493 N.Y.S. 2nd 709, AFF'D 126 A.D. 2nd 265, 513 N.Y.S. 2nd 393 (1st Dep't 1987). Thus, class certification is Superior to this doctrine of STARE DECISIS to insure relief to members of a proposed class who have already been or will be affected by a governmental agency's policy before a final decision is issued in a lawsuit.

Moreover, it is often the case that persons who are similarly situated to the plaintiff in a lawsuit already filed are individuals who are poor, elderly, or disabled, who would be hard pressed because of their physical and financial condition to commence individual

actions. Class action is the best method to protect these potential class members. Finally, even if poor, elderly, or disabled persons succeed in obtaining free legal representation for their individual claims, the multiplicity of lawsuits seeking the identical relief can give rise to inconsistent rulings by various state courts. This results, in unnecessary expenditure of energy and judicial resources, forcing the legal service bar, the Attorney General's office and the courts repeatedly to litigate and decide the same issues of law.

Despite the court's assumption that governmental agencies follow the rules of law laid down by court decisions, potential class members continually confront the reality that successes in non-class actions are applied only to the individually named plaintiffs rather than to all those similarly situated.

In sum, § 902 of the CPLR should be amended to specify that once the requirements of the class action provisions of Article 9 are satisfied, certification cannot be denied on the grounds that because the case involves a governmental agency, the court's decision will be applied to all individuals similarly situated.

Legislative history

2009-10: S.5394 - Referred to Codes.

Fiscal implications

None.

Effective date

This bill will take effect immediately Upon enactment.