Gibbs v Kings Harbor Health Servs. LLC

Gibbs v Kings Harbor Health Servs. LLC 2018 NY Slip Op 03443 Decided on May 10, 2018 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 May 10, 2018
Richter, J.P., Manzanet-Daniels, Webber, Oing, Moulton, JJ.
6520

[*1]Mary Gibbs, etc., et al., Plaintiffs-Appellants,

v

Kings Harbor Health Services LLC, doing business as Kings Harbor Multicare Center, Defendant-Respondent.

Finkelstein, Blankinship, Frei-Pearson & Garber, LLP, White Plains (D. Greg Blankinship of counsel), for appellants.

Mauro Lilling NaParty LLP, Woodbury (Seth M. Weinberg of counsel), for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 15, 2016, which denied, with prejudice, the motion pursuant to CPLR 901 and 902 by plaintiffs Levonia McCray, as son and administrator of the estate of Belton Ganett, and Mary Gibbs, as daughter and guardian ad litem of Henry Gibbs, an incapacitated adult incapable of adequately prosecuting his rights, to certify this action as a class action, appoint McCray and Gibbs as class representatives, and appoint Finkelstein, Blankinship, Frei-Pearson and Garber, LLP as class counsel, unanimously modified, on the law, to allow pre-class certification discovery and to permit plaintiffs to renew their motion after completion of such discovery, and otherwise affirmed, without costs.

At this juncture, as plaintiffs have failed to satisfy CPLR 901(a)(2), requiring them to show that "there are questions of law or fact common to the class which predominate over any questions affecting only individual members," further pre-class certification discovery is necessary.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 10, 2018

CLERK