Matter of Arroyo v State of New York

[*1] Matter of Arroyo v State of New York 2006 NY Slip Op 51606(U) [12 Misc 3d 1197(A)] Decided on June 29, 2006 Ct Cl Midey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2006
Ct Cl

In the Matter of the Claim of Phyllis Arroyo and John Arroyo, Individually and as Parents and Natural Guardians ("P/N/G") of Alex Arroyo, et al., On Behalf of Themselves and All Other Persons Similarly Situated, Claimants,

against

The State of New York, Defendant.



Timothy Springer and Jacqueline Springer, Individually and on behalf of their infant children, Adam Springer, Kelly Springer and Rachel Springer, Claimants, -v-

against

The State of New York, Defendant.



111362



For Claimants:

DREYER BOYAJIAN, LLP

BY: Donald W. Boyajian, Esq.,

Of Counsel. (Claim No. 111362)

UNDERBERG & KESSLER, LLP

BY: Paul V. Nunes, Esq.,

Of Counsel. (Claim No. 111361)

MARLER CLARK, LLP, PS

BY: Bruce T. Clark, Esq.,

Of Counsel.

For Defendant: HON. ELIOT SPITZER

Attorney General

BY: Ed J. Thompson, Esq.,

Assistant Attorney General

Of Counsel.

Nicholas V. Midey, J.

In these two motions, claimants seek an order certifying each action as a class action pursuant to Article 9 of the CPLR. In addition, in Motion No. M-71063 claimants seek an order consolidating their claim (Claim No. 111362) with Claim No. 111361 pursuant to CPLR § 602(a). Upon request of all parties, oral argument of these motions was scheduled and heard jointly, at which time counsel for the claimants in Claim No. 111361 joined in the request for consolidation of these two claims. Therefore, since identical relief is sought in each motion, these motions will be considered together.

In addition to the oral argument, the Court has also read and reviewed the following papers in connection with these motions: Notice of Motion (M-71063) 1

Attorney Affidavit, with Exhibits A-E (M-71063)2 Memorandum of Law in Support of Consolidation and Class Certification, with Exhibit (M-71063) 3

Notice of Motion (M-71115)4

Attorney Affidavit, with Claim attached (M-71115)5

Memorandum of Law in Support of Motion seeking Class Certification (M-71115)6

Affirmation in Opposition (M-71063/M-71115)7

Memorandum of Law in Opposition (M-71063/M-71115)8

Reply Affidavit, with Exhibits A-I (M-71063)9

Reply Memorandum of Law (M-71063)10

Claimants' Reply Memorandum of Law (M-71115)11

Correspondence dated March 30, 2006 (M-71063/M-71115)12

These two claims are based upon events which occurred during the summer of 2005 at Seneca Lake State Park in Geneva, New York. The State of New York is the owner and operator [*2]of this park, and during 2005 it operated and promoted a "Spraypark" as one of the park's main attractions. This Spraypark, which first opened in 2002, consists of over 100 water jets that spontaneously spray water over a hardtop surface.

In August, 2005, the Spraypark was closed by the State Department of Health, after a finding that the Spraypark water was contaminated with cryptosporidium, a highly contagious waterborne parasite. Exposure to this parasite may cause cryptosporidiosis, with symptoms of abdominal cramping, diarrhea, nausea, vomiting, dehydration, fatigue, fever, and loss of appetite.

Following the actions taken by the Department of Health, the two above captioned claims were served upon the Attorney General and filed with the Clerk of the Court of Claims, each alleging that numerous claimants had been exposed to the cryptosporidium parasite and that they suffered the effects of cryptosporidiosis. Each claim indicated that class action certification would be sought pursuant to CPLR Article 9.[FN1]

Each claim is based upon allegations of negligence, essentially alleging that the State failed to adequately maintain or monitor the sanitary conditions of the Spraypark water, and as a result allowed the water to become contaminated with the cryptosporidium parasite [FN2].

As mentioned above, claimants now seek to consolidate these two actions and, after consolidation, also request that their consolidated claim be certified as a class action.

Pursuant to CPLR § 602, claims may be consolidated when the actions involve a common question of law or fact. In this particular matter, each claim is based upon the contamination of the water at the Spraypark, a confirmed fact, and the claimants in each claim seek damages based upon their direct or indirect exposure to the cryptosporidium parasite contained in this water. As a result, this Court anticipates that liability of the State, if any, will be predicated upon identical principles of law. Under these circumstances, the Court finds that it is certainly appropriate for these two claims to be consolidated pursuant to CPLR § 602, a determination which was not strenuously opposed by the State.

Based on this conclusion, the Court will next address claimants' request that this consolidated action be certified as a class action under CPLR Article 9, a request that is vigorously contested by the State.

Although rare, the provisions of CPLR Article 9 have been held applicable to claims pending in this Court (see Bertoldi v State of New York, 164 Misc 2d 581), and class action lawsuits have been recognized in the Court of Claims (Brown v State of New York, 250 AD2d 314; St. Paul Fire and Marine Ins. Co. v State of New York, 99 Misc 2d 140).

The more complicated issue, however, is to determine which potential claimants may be eligible for inclusion in the class. Specifically, it is necessary to reconcile the strict jurisdictional [*3]pleading requirements of Court of Claims Act § 11 with the provisions of CPLR Article 9 pertaining to class actions.

In Bertoldi (supra), former Judge Weisberg concluded that the provisions of CPLR Article 9 superseded the pleading requirements of the Court of Claims Act. However, in Brown (supra), former Judge Hanifin concluded that any party included in a class action in the Court of Claims must also satisfy the jurisdictional pleading requirements of Court of Claims Act § 11(a) (Brown v State of New York, Ct Cl, August 21, 1997 [Claim No. 86979, Motion No. M-55344] [unreported decision]).

Since Judge Hanifin's decision in Brown, two of my esteemed and learned colleagues have addressed the issue of class eligibility, and both have agreed with Judge Hanifin that a person must be a named claimant in a filed claim in order to be included as a member of a certified class in the Court of Claims (Partridge v State of New York, Claim No. 90710, Motion Nos. M-58210, CM-58893, dated May 31, 2000, Patti, J., [UID No.2000-013-002];[FN3] Woolley v State of New York, Claim No. 103781, Motion Nos. M-63263, M-63409, dated July 2, 2001, Collins, J., [UID No.2001-015-160])[FN4].

This Court agrees with the logic of Judge Hanifin, reinforced by the decisions of Judge Patti and Judge Collins. Since the State conditioned its waiver of immunity upon compliance with Court of Claims Act Article 2, cases, including numerous appellate cases, have uniformly held that such compliance must be strictly construed. As Judge Hanifin stated in Brown, "if the legislature intended the filing and service requirements of the Court of Claims Act to apply to all actions except class actions, it presumably would have said so." (Brown v State of New York, supra). This Court therefore finds that to be included in any class action lawsuit, a claimant must first satisfy the filing and service requirements of the Court of Claims Act.

As set forth in the motion papers, at least 663 individuals have been named as claimants, or have served a notice of intention to file a claim, in the Springer and Arroyo claims.[FN5] Based on the foregoing, it is this Court's determination that the potential class, at this point in time, must be limited to these claimants.

As noted by this Court in a related Decision and Order (Springer v State of New York, Ct Cl, November 17, 2005, Midey, J., Claim No. 111361, Motion Nos. M-70742, CM-70755, [UID #2005-009-053]), however, this potential class, if certified, may be expanded under certain [*4]conditions. In that Decision and Order, this Court noted that the vast majority of potential claimants in this claim will in all likelihood be infants. Pursuant to Court of Claims Act § 10(5), the claim of an infant is tolled until the disability is removed, and it may then be presented within two years thereafter. Additionally, any potential adult claimant who has not yet joined in either the Springer or Arroyo claims may apply for late claim relief under Court of Claims Act § 10(6). Such late claim relief may be granted in the discretion of the Court, and as this Court stated in its prior Decision and Order, the State would have a difficult time in successfully arguing against such relief under these circumstances. Therefore, even though potential eligibility for inclusion in the proposed class has been limited herein, the Court anticipates that there may be additions to the class at a later date.

The Court must now therefore consider whether a class should be certified under the facts and circumstances as presented herein.

CPLR § 901(a) sets forth the prerequisites for bringing a claim as a class action:

One or more members of a class may sue or be sued as representative parties on behalf of all if:

the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;

there are questions of law or fact common to the class which predominate over any questions affecting only individual members;

the claims or defenses of the representative parties are typical of the claim or defenses of the class;

the representative parties will fairly and adequately protect the interests of the class; and

a class action is superior to other available methods for the fair and efficient adjudication of the controversy.

In evaluating whether these criteria have been met and whether certification is warranted, and pursuant to CPLR § 902, the Court must take into account, among other relevant factors:

The interest of members of the class in individually controlling the prosecution or defense of separate actions;

The impracticability or inefficiency of prosecuting or defending separate actions; [*5]

The extent and nature of any litigation concerning the controversy already commenced by or against members of the class;

The desirability or undesirability of concentrating the litigation of the claim in the particular forum;

The difficulties likely to be encountered in the management of a class action.

Although each of the five criteria set forth in CPLR § 901(a) must be satisfied, these requirements should be construed liberally and in favor of certification (Lauer v New York Telephone Co., 231 AD2d 126, 130). Qualification for class action status is a determination vested in the sound discretion of the Court (Matter of Froehlich v Toia, 71 AD2d 824; Small v Lorillard Tobacco Co., 94 NY2d 43, 52).

Numerosity

There is no mechanical test to determine whether a putative class is so numerous that it makes joinder impracticable (Friar v Vanguard Holding Corp., 78 AD2d 83). In this particular case, however, and as previously stated, more than 600 individuals have been listed as potential claimants in the Springer and Arroyo claims which, in this Court's opinion, easily satisfies the numerosity requirement.

Commonality

As previously discussed herein with respect to the issue of consolidation, common questions of fact and law predominate. Even though the defendant contends that individual claimants may have suffered different amounts of damage, a variation in damage amounts among members of the class is insufficient to defeat certification (Weinberg v Hertz Corp., 116 AD2d 1; Godwin Realty Assocs. v CATV Enters., 275 AD2d 269).

Typicality

To satisfy this requirement, a class representative must satisfy the Court that he or she possesses the same interests as other members of the putative class. In this case, the claims of the proposed class representatives (Springer and Arroyo) allege that they suffered a cryptosporidium infection as a result of exposure to that parasite after attending that Spraypark. The Court finds that these claims are typical of the proposed class, since they arise from the same event or course of conduct which forms the basis of the claims of other class members, and liability is based upon the same allegations of negligence against the State.

Adequacy of Representation

In this particular matter, the Court finds that the proposed class representatives, Phyllis and John Arroyo, and Timothy and Jacqueline Springer, in their respective individual capacities as well as on behalf of their infant child or children, would provide fair and adequate representation to the other members of the class. [*6]

Furthermore, it has been proposed in this motion that three law firms will act as co-counsel in this claim. The Court has reviewed the qualifications of each firm [FN6], and finds that they are competent counsel, all with substantial experience in either food-borne or waterborne illness claims,

and all with extensive experience in class action litigation. The Court finds that these three law firms, with their expertise, will diligently represent the interests of the class.

Superiority

The Court is aware that many of the individual claims may be reasonably modest, and the ability to proceed as a class action will be the most cost effective procedure for many of the individual claimants. Furthermore, it would be an incredible waste of manpower for the Attorney General to defend each of the over 600 potential claims on an individual basis, and similarly it would certainly be a waste of judicial resources to handle each of these claims individually. Therefore, after consideration of the factors set forth in CPLR § 902, the Court finds that certification of these claims as a class action is the superior method to resolve the claims set forth herein.

Accordingly, for all of the reasons set forth above, claimants' motions for class certification pursuant to CPLR Article 9 are granted.

The Court notes that in their application, claimants had proposed that the class, if certified, be defined to include subclasses of claimants, based upon the extent of damages allegedly suffered by a particular claimant, and claimants also suggested that such subclasses be further divided into subclasses of adults and infants. Claimants have indicated, however, that upon certification, they anticipate that a class definition may be mutually agreed upon by the parties, including categories of subclasses.

Additionally, and subsequent to oral argument, claimants submitted a proposed "Notice of Class Action" (see Attachment to Item 12), with such notice including notification to potential members (infants and potential applicants for late claim relief under Court of Claims Act § 10[6]) who have not yet appeared in this action.

Since counsel for the claimants anticipate that the parties may be able to reach agreement on these issues (class definition, subclasses, and notice to potential class members), this Court will not specifically address these matters herein, but will provide the parties an opportunity to resolve such issues by stipulation. This Court, therefore, intends to conference this claim in the immediate future to address these matters and any other pre-trial issues, as well as to implement a time frame for the completion of discovery.

Accordingly, based upon the foregoing, it is

ORDERED, that claimants' motion to consolidate Claim No. 111361 and Claim No. 111362 pursuant to CPLR § 602 is hereby GRANTED, and the consolidated claim shall hereafter be captioned "TIMOTHY SPRINGER and JACQUELINE SPRINGER, Individually and on behalf of [*7]their Infant Children, ADAM SPRINGER, KELLY SPRINGER and RACHEL SPRINGER, and PHYLLIS ARROYO and JOHN ARROYO, Individually and on behalf of their Children, ALEX ARROYO, CHEYENNE ARROYO, and MCKENZIE ARROYO, and all other persons similarly situated (claimants) v THE STATE OF NEW YORK (defendant), and this consolidated claim shall be designated as Claim No. 111361; and it is further

ORDERED, that the Chief Clerk of the Court is hereby directed to transfer the file contents of Claim No. 111362 to Claim No. 111361; and it is further

ORDERED, that claimants' motions for certification of this consolidated claim are hereby GRANTED, with the class consisting of those individuals who have either been named as claimants or who have served a notice of intention to file a claim in connection with either the Arroyo claim (Claim No. 111362) or the Springer claim (Claim No. 111361); and it is further

ORDERED, that a conference will be conducted by the Court as soon as reasonably practicable to address the issues of class definition, including possible subclasses, the proper form of the "Notice of Class Action", and other discovery matters.

Syracuse, New York

June 29, 2006

NICHOLAS V. MIDEY JR.

Judge of the Court of Claims Footnotes

Footnote 1: The Court is aware of one other claim based upon the cryptosporidium outbreak at the Spraypark, to wit: Dey v State of New York & Ano., Claim No. 111576. This claim has also been assigned to this Court pursuant to the Individual Assignment System for the Court of Claims (§ 206.3 of the Uniform Rules for the Court of Claims). There is no indication in the Dey claim that class action certification is desired.

Footnote 2: The Arroyo claim (Claim No. 111362) also contains causes of action based upon strict liability and breach of warranty (express and implied).

Footnote 3: Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://www.nyscourtofclaims.state.ny.us/decisions.

Footnote 4: Although recognizing the availability of class action relief in the Court of Claims, and after considering the issue of class eligibility, Judge Collins determined that a class action was not appropriate in Woolley.

Footnote 5: Pursuant to Court of Claims Act § 10(3), in claims based upon allegations of negligence or unintentional torts, a notice of intention, if served upon the Attorney General within 90 days of accrual, extends a claimant's right to serve and file a claim to two years from the date of accrual. Therefore, any potential member of the proposed class who has served a notice of intention has established, at this point in time, compliance with the strict jurisdictional requirements of § 11 and may be included in the class, if certified.

Footnote 6: In a prior Decision and Order, and after reviewing their qualifications, this Court had previously approved the application of William Marler, Esq., and Bruce T. Clark, Esq., to appear pro hac vice with Underberg & Kessler, LLP, in connection with the Springer claim (Claim No. 111361) (see Decision and Order to Motion No. M-71017, dated January 12, 2006 (UID #2006-009-001]).