BILL NUMBER:S5327

TITLE OF BILL:
An act
to amend the civil practice law and rules, in relation to
certification of class actions in cases involving governmental
operations

PURPOSE OF BILL:
Section 902 of the Civil Practice Law and Rules is amended to provide
that a court may not deny or withhold class certification solely
because the action involves governmental operations. This bill will
not require the court to certify a class. More importantly, this bill
will specify once the requirements of Article 9 are satisfied,
certification cannot be denied solely because the case 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.