BILL NUMBER: S9518

SPONSOR: GONZALEZ
 
TITLE OF BILL:

An act to amend the civil practice law and rules, in relation to certif-
ication of class actions in cases involving governmental operations

 
PURPOSE:

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 wilt specify once the
requirements of article 9 are satisfied, certification cannot be denied
solely because the case involves governmental operations.

 
SUMMARY:

  Section  1. Amends section 902 of the civil practice law and rules, as
amended by chapter 474 of the laws of 1975.

              

  Section 2. Sets the effective date

 
JUSTIFICATION:

In New York State, courts have generally been  unwilling  to  certify  a
class action when governmental operations are involved, reasoning that a
class  action  is  not superior to other available methods to litigants.
The idea that the government is a  special  litigant  is  incorrect  and
unjust  -  all  New  Yorkers  should be able to stand equally before the
courts. Low- income and older New Yorkers are more likely to be a plain-
tiff in a class action suit due to a lack of resources to bring individ-
ual actions. Making it harder to bring justice when government  agencies
act  illegally  only further enables them to continue harmful practices.
This legislation seeks to prevent a court from  denying  or  withholding
class certification solely because a lawsuit involves governmental oper-
ations  and  allow all New Yorkers the opportunity to seek justice while
streamlining the litigation process in the courts.

Legal Services for New York City,  a  not-for-profit  organization  that
provides  legal  service  for low-income people, supports this bill. 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 judgment in favor of the plaintiff may protect (SUBSEQUENT)
or (FUTURE) litigants under the doctrine of (STARE DECISIS) 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 poli-
cy  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  A  LSO  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  Dept
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
low-income, elderly, or differently-abled, in which it would be increas-
ingly difficult to pursue actions. Class action is the  best  method  to
protect  these  potential  class members. Finally, even if a person were
able to obtain 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 unnec-
essary 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  assump-
tion  that  governmental  agencies  follow the rules of law laid down by
court decisions, potential class members continually confront the reali-
ty that successes in non-class actions are applied only to the  individ-
ually 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.

 
RACIAL JUSTICE IMPACT:

Government  agencies  that  act  illegally most severely harm low-income
communities of color. Further, individuals with less resources are  more
Likely  to  enter into a class action lawsuit because they are unable to
take individual action.

We have witnessed class action lawsuits go forward to address  discrimi-
nation and low standards of care that impact the most vulnerable such as
in  the  cases of Merton Simpson v. Department of Civil Service, City of
New York v. Maul, Fleming v. Barnwell Nursing Home & Health  Facilities,
and Brad H v. City of New York.

This  bill will ensure that a large amount of New York's population wilt
be able to stand equally before the courts as a collective in  instances
of injustice involving governmental operations.

 
GENDER JUSTICE IMPACT:

TBD.

 
PRIOR LEGISLATIVE HISTORY:

1995-96: A4933; passed Assembly.

1997-98: A3289; passed Assembly.

1999-2000: A3299; passed Assembly.

2001-02: A7700; passed Assembly.
2003-04: A5942; passed Assembly.

2005-06: A6929; passed Assembly.

2007-08: A4131; passed Assembly.

2009-10: A5019; passed Assembly.

2011-12: A2334; passed Assembly.

2013-14: A6871; advanced to third reading.

2015-16: A2191; advanced to third reading.

2017-18: A3181; referred to Codes.

2019-20: A2446; referred to Codes.

2021-22: A6501; passed Assembly.

 
FISCAL IMPLICATIONS:

None.

 
EFFECTIVE DATE:
This act shall take effect immediately.