Gerard v Clermont York Assoc. LLC

Gerard v Clermont York Assoc. LLC 2016 NY Slip Op 06550 Decided on October 6, 2016 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 6, 2016
Renwick, J.P., Richter, Manzanet-Daniels, Feinman, Kapnick, JJ.
1838 101150/10

[*1]Paula Gerard, et al., Plaintiffs-Respondents,

v

Clermont York Associates LLC, Defendant-Appellant.

Horing Welikson & Rosen, P.C., Williston Park (Niles C. Welikson of counsel), for appellant.

Emery Celli Brinckerhoff & Abady LLP, New York (Matthew D. Brinckerhoff of counsel), for respondents.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered August 9, 2012, which granted plaintiffs' motion for class certification, unanimously affirmed, without costs.

Plaintiffs in this action for rent overcharges are tenants at a rental apartment building owned by defendant. Plaintiffs seek to certify a class of current, former, and future tenants whose formerly rent-stabilized apartments were deregulated even though the building owner was receiving J-51 tax abatement benefits.

The motion court providently exercised its discretion in deeming the motion for class certification, which was filed 17 days after the stipulated deadline, timely filed. A court may in its discretion deem a late-filed class certification motion timely upon a showing of good cause (see Galdamez v Biordi Constr. Corp., 50 AD3d 357 [1st Dept 2008]; Rodriguez v Metropolitan Cable Communications, 79 AD3d 841, 842 [2d Dept 2010]; CPLR 2004; compare Cruz v Town Sports Intl., 116 AD3d 539 [1st Dept 2014]). Here, plaintiffs explained that the motion was filed late due to counsel's involvement with urgent matters in other cases. Furthermore, the impact of the very brief delay was minimal, and defendant cannot claim that time was of the essence, given its history of both seeking and granting extensions; its admission that, had an extension been timely requested, it would have been granted; and the fact that there were no other pending deadlines. Defendant's assertion that it suffered prejudice because it would otherwise have engaged specialized class action counsel to oppose the motion is unavailing. It is not clear what value specialized counsel could have added in light of the admitted merit of plaintiffs' motion, as evidenced by defendant's withdrawal of all other grounds for its appeal in response to the Court of Appeals' intervening decision in Borden v 400 E. 55th St. Assoc., L.P. (24 NY3d 382 [2014]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 6, 2016

CLERK