In this action seeking to recover damages for alleged violations of Administrative Code of the City of New York §8-107, Plaintiffs appeal a Supreme Court order that denied the Plaintiffs' motion for class certification filed pursuant to CPLR Article 9. The Appellate Division affirmed the Supreme Court' denial of Plaintiffs' motion.
The Plaintiffs, New York City Police Captains of Asian descent, had not receive "discretionary promotions to the rank of Deputy Inspector" during the period September 27, 2018 through the present date. Plaintiffs alleged that the New York City Police Department [NYPD] denied them and the members of the putative class discretionary promotions beyond the rank of Captain due to their race in violation of the New York City Human Rights Law.
The Appellate Division explained that the proponent of a motion for class certification bears the burden of meeting the requirements of §901 of CPLR Article 9, which set out the five prerequisites for obtaining class certification:
1. Numerosity;
2. Commonality;
3. Typicality;
4. Adequacy of representation; and
5. Superiority.
Although the Appellate Division opined that these requirements "are to be liberally construed in keeping with the goals of CPLR Article 9", its decision, citing Yonkers Contr. Co. v Romano Enters. of N.Y., 304 AD2d 657, noted that "A class action certification must be founded upon an evidentiary basis", and observed that "Whether the facts presented on a motion for class certification satisfy the statutory criteria is within the sound discretion of the trial court"*.
Further, the Appellate Division's decision notes that it "is vested with the same discretionary power and may exercise that power, even when there has been no abuse of discretion as a matter of law by the nisi prius court" and, citing Pludeman v Northern Leasing Sys., Inc., 74 AD3d 420, opined that "Conclusory assertions are insufficient to satisfy the statutory criteria."
In the words of the Appellate Division "... even assuming, arguendo, that Plaintiffs demonstrated that "there are questions of law or fact common to the class which predominate over any questions affecting only individual members", Plaintiffs' conclusory assertions that the class action "seeks widespread, systematic reform" were insufficient to establish that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy".
The Appellate Division then observed that "the Supreme Court providently exercised its discretion in denying the [Plaintiffs'] motion pursuant to CPLR article 9 for class certification".
* Also sometimes referred to as the nisi prius court.
Click HERE to access the Appellate Division's decision posted on the Internet.