Pludeman v Northern Leasing Sys.
2012 NY Slip Op 31899(U)
July 13, 2012
Sup Ct, NY County
Docket Number: 101059/04
Judge: Martin Shulman
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SCANNED ON 711912012
SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY
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Index Number : 101059/2004
NORTHERN LEASING SYSTEMS
MOTION SEQ. NO.
Sequence Number : 024
The following papers, numbered 1 to
Answer ng Affidavlts - Exhibits
were read on this motion tolfor
- Affidavlta - Exhibits ...
Notice of Motion1
Upon the foregoing papers, it is orderad that this motion
Check if appropriate:
0 DO NOT POST
0 SUBMIT ORDER/ JUDG.
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n SETTLE ORDER/ JUDQ.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 1
KEVIN PLUDEMAN, CHRIS HANZSEK d/b/a
HANZSEK AUDIO, SARA JANE HUSH, OZARK
MOUNTAIN GRANITE & TILE CO. and DENNIS E.
LAUCHMAN, on behalf of themselves and all others
Index No: I01 059/04
Decision & Order
-againstNORTHERN LEASING SYSTEMS, INC., JAY COHEN,
STEVEN BERNARDONE, RICH HAHN, and
Hon. Martin Shulman, J.S.C.:
Motion sequences 24 and 25 are consolidated for disposition. The two (2)
remaining causes of action in this class action law suit allege fraud against defendants
Northern Leasing Systems, Inc. ("NLS"), Jay Cohen, Steve Bernardone, Rich Hahn and
Sara Krieger (collectively, "defendants"), and breach of contract solely as to NLS.
By decision and order dated April 24, 2009, this court inter alia granted plaintiffs'
prior motion granting class certification solely with respect to plaintiffs' breach of
contract claim against NLS.' Central to this court's determination to certify the class
here was the finding that individual inquiries were unnecessary. Pludeman v Northern
Leasing Sys., lnc., 2009 WL 1812532, at "7. And in affirming the class certification, the
Appellate Division, First Department similarly rejected NLS's claim that individual issues
predominated because plaintiffs must establish a valid excuse for not reading the lease
or perceiving that it was four pages rather than one, which excuse would purportedly be
I Pludeman vNorthern Leasing Sys., Inc., 24 Misc3d 1206(A), 2009 WL 1812532 (Sup Ct, NY Co,
2009). The Appellate Division, First Department modified the class certification decision to the extent of
expanding the class, and otherwlse affirmed. Pludeman v Northern Leasing Sys., Inc., 74 AD3d 420 (le'
Dept 201 O),
u n i q u e to e a c h class member. Plndcmm v Northern Leasing Sys., Inc., 74 AD3d at
Thereafter, this court granted the class plaintiffs partial summary judgment as to
liability on the breach of contract claim (the “SJ decision”).2 By decision dated
September 15, 201 1, the Appellate Division, First Department reversed the SJ decision
(“SJ AD d e c i ~ i o n ” ) . ~
In motion sequence 24, defendants move to decertify the class based upon the
SJ AD decision. Plaintiffs oppose the motion and simultaneously cross-move for
summary judgment, for the second time, on their breach of contract cause of action,
albeit on different grounds. In motion sequence 25, defendants move by order to show
cause (I‘OSC’l) for an order denying plaintiffs’ cross-motion on the grounds that plaintiffs
present no new evidence or other sufficient cause to justify a second summary
judgment m ~ t i o n . ~
In the SJ decision, this court construed plaintiffs’ form leases to be one-page
contracts as a matter of law and granted plaintiffs partial summary judgment on the
issue of liability as to the breach of contract cause of action based upon NLS’s
unauthorized collection of loss damage waiver (“LDW”) charges.’ In reversing, the SJ
Pludenian v Northern Leasing Sys., Inc., 27 Misc3d 1203(A), 910 NYS2d 408 (Sup Ct, NY Co,
’ f l u d e m m v Northern Leasing Sys., Inc., 87 AD3d 881 (I“ 201 1).
In essence, defendants seek to strike the cross-motion as improper in order to avoid opposing it
on the merits.
The form leases in question contain an LDW provision requiring lessees to insure leased
equipment against all risk of loss or damage and provide NLS with proof of insurance. Absent such proof,
lessees were deemed to have participated in the LDW program for a fee that NLS could change from time
AD decision found that questions of fact preclude summary judgment on plaintiffs’
breach of contract claims becauso:
a factfinder must determine (1) whether plaintiffs received only the first
page of the form lease or all four pages, and (2) whether, if plaintiffs
received all four pages, they could reasonably have believed that all terms
were contained on page 1. The latter question cannot be answered as a
matter of law in plaintiffs’ favor, given that page 1 of the form lease . . .
states that it is ‘Page Iof 4’ and contains a reference, above the lessee’s
signature, to paragraph 11, which appears on page 3 of the form.
Moreover, the record contains evidence that the form lease each plalntlff
signed was printed on one sheet of paper, 11 inches wide by 17 inches
long, folded in half to create a four-page booklet . . .
Pludeman v Northern Leasing Sys., Inc., 87 AD3d at 882.
DEFENDANTS’ MOTION TO DECERTIFY THE CLASS
Based upon the foregoing finding, defendants argue that:
at least two of CPLR 5901(a)’s prerequisites for class certification,’ viz.,
commonality and typicality (CPLR §901[a] and ),
are now lacking and
liability in this case does not
the class should be decertified because: “(I)
turn on any one common issue; and (2) individual issues - e.g. the
circumstances surrounding the execution of each lease - will have to be
addressed with respect to each of the hundreds of thousands of class
issues as to what pages each class member received and what each
reasonably believed necessarily require inquiry into each lessee’s
interactions with independent vendors and thus cannot be determined on
a class-wide basis; and
deposition testimony and documentary evidence allegedly contradict the
named plaintiffs’ claims that they did not understand that their leases
included the LDW charge found on page 3 thereof. Defendants thus
argue that decertification is warranted because their defenses to the
CPLR §901(a)’s prerequisites for class certification are: (I) class must be so numerous that
joinder of all members is impracticable; (2) common questions of law or fact must predominate; (3) the
claims of the representative plaintiff must be typical of all members of the class; (4) the representative
party must fairly and adequately protect the interests of the class; and (5) a class action must be the most
fair and efficient means of resolving the controversy.
’ Defendants’ Memorandum of Law in Support at p. 13.
named plaintiffs’ claims are not typical of the d e f e n s e s applicable to the
class.’ See CPLR 5901(a)(3).
In opposition, plaintiffs argue that:
the motion to decertify the class is moot for the reasons set forth in
support of their cross-motion for summary judgment (discussed infra);
specifically, “[elven if the Lease is considered to be a four page
document, the LDW charges were unauthorized, and class consideration
individual issues do not predominate and plaintiffs’ interactions with nonparty vendors at the time they signed their leases are irrelevant because
the issue to be determined is “what a reasonable person in the position of
the parties would have thought [was] meant (citations omitted and
emphasis in original)”;1°
defendants misinterpret the SJ AD decision as holding that the form
leases cannot be construed as one page contracts as a matter of law; by
contrast, plaintiffs contend that the SJ AD decision merely held that this
issue “had to be resolved as a matter of fact; it could not be resolved as a
matter of law” and thus, individualized inquiries still remain irrelevant;”
certification is proper because this litigation involves the interpretation of
an essentially uniform contractual provision; and
bars axtrinsic evidence regarding plaintiffs’
the form leases’ merger c l a u ~ e
interactions with independent non-party vendors.
In reply, defendants argue, in relevant part, that:
issues of fact: exist as to what constitutes each plaintiffs lease (;.e.,
whether it is one page or four pages) and the only way for a factfinder to
For example, NLS argues that certain named plaintiffs authorized the LDW charges.
Speciflcally, plaintiff Lauchman signed a Delivery i Acceptance Certlflcate confirming his obligation to pay
taxes and insurance in additlon to the basic monthly lease payments and plaintiff Hush was orally advised
of the LDW charge before NLS accepted her lease.
Plaintiffs’ Memorandum of Law in Support of Cross-Motion and in Opposition to Motion for
Decertification, at p. 22.
Id. at p. 23.
Id. at p. 3.
determine if each plaintiff received all lease pages is to examine the facts
surrounding each lease signing;
the Appellate Division rejected plaintiffs’ merger clause argument and the
SJ AD decision’s holding necessarily requires examination of evidence
other than the leases themselves; and
plaintiffs improperly attempt to frame the court’s inquiry as being a
reasonable person standard, yet this approach presupposes that there is
agreement as to what terms are part of each plaintiff’s lease.
Highlighting this court’s threshold determination that as to plaintiffs’ breach of
contract cIaim,l2 there was at least one issue common/typical to the class that
predominates over any individualized issues, the First Department reasoned that
liability in this case “could turn on a single issue”, to wit, “whether it is possible to
construe the first page of the lease as a complete contract because of the merger
clause, signature lines, and t h e space for the detailing of fees.” ld. (emphasis added).
In affirming certification of the class, the Appellate Division went on to state that
individualized proof is not needed because resolution of the foregoing issue “is capable
of being determined solely upon examination of the first page of the lease.” Id.
Taking its cue from the Appellate Division which framed the predominant issue
common to and/or typical of the class, this court’s SJ decision rejected any need for
extrinsic evidence after examining the first page of the lease and concluded that the
form leases in question were comprised of only the first page. However, the SJ AD
decision rejected this finding.
I’ Parenthetically, the Appellate Division had resuscitated plaintiffs’ breach of contract claims
prevlously dismlssed because a prior Supreme Court Justice viewed same as factuallyllegally insufficient
as pleaded. See Pludeman v Northern Leasing Sys., Inc., 40 AD3d 366, 368 ( I “ Dept 2007), aff‘d 70
NY3d 485 (2008).
In holding that a factfinder must now determine how many lease pages each
plaintiff received and whether those plaintiffs who received all four pages reasonably
could have believed that all its terms were contained on the first page, the First
Department has jettisoned the predominant issue and expanded the scope of the
factfinder’s inquiry to now require individualized proof in determining plaintiffs’ breach of
contract cause of action. The result of the SJ AD decision is that determining liability on
this cause of action is no longer merely a matter of contractual interpretation.
It will now be necessary to determine what each plaintiff‘s lease is comprised of
and whether it was reasonable for any plaintiff to believe the document consisted of
only one page. Again, this necessarily entails individual inquiries into the circumstances
of each plaintiff’s lease execution. Clearly, this fact specific inquiry cannot be
determined from a review of the lease’s language. And as a result of the SJ AD
decision, individual issues now predominate over common questions of fact or law. As
such, the motion to decertify the class must be granted (CPLR §901[a][l] and ).
PLAINTIFF$’ CROSS-MOTION FOR SUMMARY JUDGMENT
Plaintiffs cross-move for summary judgment on their breach of contract cause of
action on the following grounds which allegedly came to light for the first time during
discovery: I ) the coverage NLS’s purported LDW program offered was illusory; 2)
defendants never revealed the terms of the LDW program to lessees or guarantors and
as such they were unable to make claims for coverage they did not know existed; 3)
defendants charged a uniform $4.95 per month without regard to the equipment leased
or the age of the lease; 4) only lease guarantors could make claims; 5) guarantors had
to pay a $200 fee to make a claim; 6) defendants have very few documents regarding
the LDW program; 7) t h e only basis for the $4.95 monthly charge is defendants’
unsubstantiated “belief’ as to what competitors charge; 8) the LDW lease provision
requires NLS to request that lessees submit evidence of insurance coverage prior to
imposing the LDW fee, which NLS never did; and 9) failure to disclose the LDW fee
breached the implied covenant of good faith and fair dealing. As a result of the
foregoing, plaintiffs contend that the LDW charges were unconscionable and/or
unreasonable as a matter of law in that the program was “nothing more than a ruse to
collect money” which “provided no benefit whatsoever to lessee^."'^ In addition to
moving for summary judgment, plaintiffs further claim that these allegations present a
common issue for the class which render defendants’ decertification motion moot.
Defendants’ OSC argues that the cross-motion for summary judgment is an
improper second summary judgment motion based on facts and legal theories that
were available at the time of plaintiffs’ first motion. See National Enters. Corp. v
Deched Price & Rhoads, 246 AD2d 481, 482 ( I ” Dept 1998)(multiple summary
judgment motions are impermissible in the absence of newly discovered evidence or
other sufficient cause). Specifically, defendants note that plaintiffs’ claim of
unconscionability was asserted in the First Amended Complaint (the “complaint”) filed in
2004 and conclude that plaintiffs made a strategic decision not to raise these
arguments at the time they first moved for summary judgment on the breach of contract
cause of action. Defendants urge this court to deny the cross-motion outright without
reaching its merits.
I’ Plaintiffs’ Memorandum of Law in Support of Cross-Motion and in Opposltion to Motion for
Decertification, at p. 2 .
Plaintiffs dispute that the facts and theories relied upon in their second summary
judgment [cross] motion were available at the time of their first motion. Rather, plaintiffs
contend that their cross-motion is proper since it is based upon evidence uncovered
during discovery and subsequent to their summary judgment motion filed in May 2009
and this court’s March 25, 2010 SJ decision, Specifically, plaintiffs rely upon
defendants’ responses to plaintiffs’ interrogatories and document demands dated
4, 2010 and documents defendants produced on May 5, 2010 which are Bates
stamped as D000008-D000015 and D000076-D000081. Cross-motion at Exhs. 1-3.
Plaintiffs further argue that sufficient cause exists to consider their cross-motion
because: I ) the supporting facts cannot be disputed as they are based upon
defendants’ own discovery responses, thus defendants’ liability “can be disposed of
summarily without the expenditure of the court’s and the parties’ time and resources at
trial . , .” (citing H i e v City of New York, 33 Misc3d 958, 935 NYS2d 252 (Sup Ct,
Queens Co, 201 I); 2) the SJ AD decision was an intervening change in the law;’4 and
3) this court has broad powers under CPLR 907 to control the course of proceedings
and protect the class’ interests by preventing undue repetition and streamlining the
Defendants’ OSC is based upon their claim that plaintiffs could have raised the
foregoing arguments at the time they brought their prior summary judgment motion.
Plaintiffs’ opposition to the OSC does not explain the basis of this argument. It appears that
plaintiffs rely upon dicta in the First Department’s SJ AD decision stating “if the LDW fee provision is found
to be part of the agreement, NLS is entitled to set the fee, provided the fee is reasonable,”
Although defendants cite paragraph 156 of the complaint for its allegation that
defendants’ conduct was unconscionable, that clalm Is made in connection with
plaintiffs’ fraud cause of action rather than the breach of contract cause of action and
the complaint contains none of the factual allegations plaintiffs now raise regarding the
alleged illusory nature of NLS’s LDW program. Given the timing of the parties’
discovery exchange this court cannot conclude that plaintiffs were in a position to
include their new claims at the time they brought their first summary judgment motion.
Accordingly, the OSC must be denied.
However, although unopposed, plaintiffs’ cross-motion for summary judgment
must also be denied. As stated in Weinstock v Handler, 254 AD2d 165, 166 (lot
1999) “the general rule is that a party may not obtain summary judgment on an
unpleaded cause of action (citation omitted) . . .” Summary judgment may only be
awarded on an unpleaded cause of action where “the proof supports such cause and if
the opposing party has not been misled to its prejudice (citation omitted).” ld.
Here, plaintiffs’ breach of contract cause of action as alleged in the complaint
contends that NLS breached plaintiffs’ leases by collecting an unauthorized $4.95 LDW
charge not expressly reflected on their perceived one-page contracts. In support
thereof, the complaint further alleges that: the lease terms were concealed from
plaintiffs; only the first page of the lease is enforceable; and defendants improperly
charged and collected sums in excess of those listed on the first page.
With their present allegations, plaintiffs attempt to present an entirely new theory
for what is essentially a second, unpleaded breach of contract cause of action. Central
to this new claim is the assumption that plaintiffs’ leases include an LDW provision,
though plaintiffs make clear that they do not concede this point. Such an assumption
at complete odds with the breach of contract cause of action as presently pleaded. At
this time, there is no basis for this court to consider summary judgment on the
unpleaded breach of contract claim. See, e.g., Kramer v Dsnalis, 49 AD3d 263, 264
Dept 2008) (reversing award o summary judgment on an unpleaded cause of
action to enforce an agreement where the complaint made no reference thereto and the
complaint sought contradictory relief, viz., to have all agreements declared void).
In addition to seeking to plead a contradictory theory for recovery, issue has not
been joined on this claim and defendants have had no opportunity to interpose a
defense. Indeed, it does not appear that defendants have had any notice that plaintiffs
intended to pursue a breach of contract cause of action predicated upon NLS’s LDW
program, as opposed to the LDW charges, being a “scam”. As in Primestone, LLC v
Lichtensfein, 201 1 WL 1258164, 201 I NY Slip Op 30743(U) (Sup Ct, NY Co.), “the
claim that [plaintiffs are] seeking summary judgment on is new and, until [plaintiffs]
brought this motion, never an issue in this case.” The discovery plaintiffs obtained from
defendants and which forms the basis for their new claim has been in plaintiffs’
counsel’s possession since June 201 0, approximately a year and a half before plaintiffs
made this cross-motion. This court cannot help but conclude that this claim is “coming
from out of nowhere” in an attempt to prevent class decertification. The more
appropriate course of action is for plaintiffs to move to amend the complaint, if they so
In any event, even if it were appropriate for this court to consider plaintiffs’
unpleaded claim, plaintiffs do not establish a right to summary judgment thereon. The
discovery plaintiffs rely on does not conclusively prove that the LDW program is illusory.
Rather, plaintiffs inferentially conclude from the paucity of documentation produced that
the LDW program is a sham.
Finally, plaintiffs' unpleaded claim cannot serve as a basis to deny defendants'
motion for class decertification. As set forth above, the class as certified cannot be
saved in light of the SJ AD decision. Accordingly, for all of the foregoing reasons, it is
ORDERED that defendants' motion to decertify the class (motion sequence 24)
is granted; and it is further
ORDERED that plaintiffs' cross-motion for summary judgment (motion sequence
24) is denied; and it is further
ORDERED that defendants' OSC (motion sequence 25) is denied.
Counsel for the parties are directed to appear for a status conference on July 31,
2012, at 9:30 a.m. at 60 Centre Street, Room 325, New York, New York.
The foregoing constitutes this court's Decision and Order. Courtesy copies of
this Decision and Order have been provided to counsel for the parties.
Dated: New York, New York
July 13, 2012
HON. MARTIN SHULMAN, J.S.C.
- I I-