Osarczuk v Associated Univs., Inc.

[*1] Osarczuk v Associated Univs., Inc. 2009 NY Slip Op 52695(U) [26 Misc 3d 1209(A)] Decided on December 23, 2009 Supreme Court, Suffolk County Farneti, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2009
Supreme Court, Suffolk County

Barbara Osarczuk, JOHN OSARCZUK, HELGA A. DEMPSEY, GARY OSARCZUK, DOROTHY OSARCZUK, CAROL ANGELORA, WILLIAM FERGUSON, DEBORAH FERGUSON, JAMES ANDREJKOVIC, JOAN WEISNER, MICHAEL MIESEMER, BARBARA MIESEMER, VINCENT SCAVONE, ROBERT O'GARA, JEAN O'GARA, PAULINE MODICA, NANCY BOND, FLORENCE CARRANO, RANDY SNELL, Individually, and as parent and guardian of LAUREN SNELL, an infant, DONNA J. VELARDO, and THOMAS CUNNINGHAM, Individually and on behalf of all others similarly situated, , Plaintiffs,

against

Associated Universities, Incorporated, commonly known as BROOKHAVEN NATIONAL LABORATORY, Defendant.



2836/1996



PLAINTIFFS' ATTORNEYS:

RICHARD J. LIPPES & ASSOCIATES

1109 DELAWARE AVENUE

BUFFALO, NEW YORK 14209 716-884-4800

GLYNN, MERCEP AND PURCELL, LLP

NORTH COUNTRY ROAD

P.O. BOX 712

STONY BROOK, NEW YORK 11790-0712

631-751-5757

LYNCH, TRAUB, KEEFE & ERRANTE

52 TRUMBELL STREET

P.O. BOX 1612

NEW HAVEN, CT 06506-1612

DEFENDANT'S ATTORNEYS:

NIXON PEABODY, LLP

50 JERICHO QUADRANGLE - SUITE 300

JERICHO, NEW YORK 11753-2728

516- 832-7500

Joseph Farneti, J.

ORDERED that this motion by plaintiffs for an Order, pursuant to CPLR 901 and 906, directing that this action proceed as a class action, is hereby GRANTED to the extent provided hereinafter. The Court has received opposition to the instant application from defendant ASSOCIATED UNIVERSITIES, INCORPORATED, commonly known as BROOKHAVEN NATIONAL LABORATORY ("BNL").

I.FACTUAL AND PROCEDURAL HISTORY:

This action was commenced on or about February 6, 1996 by summons and complaint. Plaintiffs, all presently or formerly living or working within a ten-mile radius of BNL, commenced this action to recover damages for personal injury and property damage alleged to be the result of various nuclear and non-nuclear materials of a hazardous and toxic nature emitted into the air, soil, and groundwater from BNL, a 5,265 acre facility that was operated by defendant ASSOCIATED UNIVERSITIES, INCORPORATED ("AUI") on behalf of the United Stated Department of Energy from 1947 to 1998. In 1998, "Brookhaven Science Associates" succeeded AUI as the operator of BNL. Plaintiffs seek compensatory and punitive damages for themselves and other members of their class to compensate for alleged personal injuries and property damage sustained. [*2]

BNL conducts many major programs, some of which address national needs, including high-energy and nuclear physics, physics and chemistry of materials, environmental energy research, neuroscience and medical imaging, and structural biology. BNL employs approximately 3,000 scientists, technicians, engineers, and support staff, and hosts over 4,000 guest researchers annually. BNL informs the Court that among other accolades, four BNL scientists have been awarded the Nobel Prize for advances in the field of physics.

Among the alleged contaminating substances are trichloroethane, tritium, strontium-90, uranium, argon-41, and cesium-137. Among the alleged injuries are cancer, nausea, headaches, immunological problems, loss of use and enjoyment of property and businesses, and psychological and emotional problems associated with fear of these health problems. Plaintiffs' complaint asserts causes of action sounding in negligence; abnormally dangerous activity; gross negligence; private nuisance; and medical monitoring.

In response to the complaint, BNL made a motion to dismiss. By Order dated September 4, 1996 (Berler, J.), the Court denied most of BNL's motion, with the exception of certain causes of action that were dismissed with leave to re-plead. On January 28, 1999, plaintiffs filed a supplemental and amended summons, and a second amended complaint, which remains the controlling pleading herein. The case then proceeded through Court-supervised class discovery, which was completed in phases.

By Order dated May 18, 2005 (Werner. J.), the Court granted BNL's cross motion for summary judgment and dismissed plaintiffs' complaint, and also denied plaintiffs' motion for class certification as moot. The Order of May 18, 2005 was appealed, and by decision of the Appellate Division, Second Department, dated January 30, 2007, the Court modified the Order to the following extent: "(1) by deleting the provisions thereof granting that branch of [BNL]'s cross motion which was for summary judgment dismissing so much of the complaint as sought damages for and equitable relief as a remedy for personal injuries and property damage arising from exposure to non-nuclear hazardous and toxic materials and substituting therefor a provision denying that branch of [BNL]'s cross motion, and (2) by deleting the provision thereof denying the plaintiffs' motion for class action certification pursuant to CPLR article 9" (Osarczuk v Associated Univs., Inc., 36 AD3d 872, 873 [2007]). The Appellate Division directed that the matter be remitted to the Supreme Court, Suffolk County, for a determination of plaintiffs' motion for class action certification pursuant to CPLR article 9 in accordance therewith.

II.PLAINTIFFS' MOTION FOR CLASS ACTION CERTIFICATION:

Accordingly, plaintiffs have now filed the instant motion for class action certification based upon plaintiffs' claims of non-nuclear hazardous substances contaminating their homes, property, persons, and neighborhood. Plaintiffs allege that [*3]although the contamination was of a long duration, they only discovered the contamination in January of 1996, when Newsday published an article entitled, "Well-Water Alert." The article reported that Suffolk County health officials found levels of trichloroethane in water drawn from four private wells in the neighborhood adjacent to BNL's southern border, and suspected that carbon-tetrachloride was also present. By letter dated February 13, 1996, from the United States Department of Energy to 800 homeowners that lived south of the BNL property, the Department of Energy indicated that it was providing public water hookups to all residences "in a designated area south of BNL as a precautionary measure."

Plaintiffs contend that the instant action was originally commenced based upon the hazardous chemical contaminants in the drinking water wells south of the BNL border; however, plaintiffs allege that the plume of hazardous chemical contamination has now spread throughout the class area, and has moved as far as Flower Hill Drive to the south, and has also moved into Manorville in the east. Plaintiffs further allege that according to BNL's own projections, these plumes will ultimately reach Brookhaven Calabro Airport, and that the time to remediate these plumes will last well into the remainder of this century.

Plaintiffs inform the Court that BNL and other governmental entities and agencies have prepared a number of studies concerning the polluting events, which documented the pollution on the BNL site as well as the plumes moving off-site, and at least one such study concluded that BNL has mismanaged its environmental, health and safety responsibilities. Since the initial motion for class certification was made on August 6, 2003, plaintiffs indicate that BNL has provided plaintiffs with additional tests and reports, which found, among other things, that it would take 65 years for the contaminated groundwater to reach drinking water standards; that low levels of volatile organic compounds (VOCs), primarily trichloroethane, were detected in groundwater both on and off the BNL site; and that fish consumed from the Peconic River pose a non-cancerous health hazard of up to 2.5 times greater than previously calculated, and a cancerous health hazard of up to 10 times greater than previously calculated. Based upon the available information, data, and statistics, plaintiffs contend that the contamination has caused adverse health effects in members of the putative class that have been exposed to such contaminants, as well as adverse affects on the value of the properties to the areas south and east of BNL's boundaries. According to plaintiffs' expert, Gerard J. Veitch, a New York State Certified General Appraiser, property values have declined twenty-four (24%) percent during the time period from 1996 to mid-1998. Further, plaintiffs argue that they have lost the use of their free and potable private water wells and are now forced to connect to the public water supply and incur the costs attendant thereto, to wit: $800 to connect to the public water and approximately $400 per year for the public water.

Plaintiffs initially sought to certify six sub-classes of individuals who have been adversely affected by the contamination. These sub-classes are as follows: [*4]

Sub-Class Number 1: Persons who live and/or work within a ten-mile radius of BNL's facilities in the Town of Brookhaven, and who have been exposed to hazardous chemicals and whose health has been adversely affected.

Sub-Class Number 2: Residential homeowners whose properties lie within an area south of BNL's facilities, as indicated on a map submitted by plaintiffs as Exhibit "12," and whose property values have been adversely affected, or who have lost the use and enjoyment of their property within a ten-mile radius of the BNL facility.

Sub-Class Number 3: Persons who live and/or work or have lived and/or have worked within a ten-mile radius of BNL's facilities in the Town of Brookhaven, and who, due to the latent nature of injuries caused by their exposure to hazardous materials, require a medical trust fund to be established to monitor those injuries and detect them at the earliest possible dates so as to ameliorate the severity thereof.

Sub-Class Number 4: Commercial property owners who own property within the same designated area south of BNL's facilities and who have suffered economic losses including the diminution of value of their properties and/or business.

Sub-Class Number 5: Persons who have suffered economic loss, including but not limited to, the expense of securing alternative water supplies, including the cost to hookup to the public water supply and the yearly cost of that water, and other economic losses within a ten-mile radius around the BNL facility.

Sub-Class Number 6: Persons who have suffered or will suffer psychological and emotional damage from fears of suffering adverse health affects within a ten-mile radius around the BNL facility.

Plaintiffs claim that each of the named plaintiff representatives fall within one or more of the sub-classes delineated above. In support thereof, plaintiffs have submitted, among other things, the Bills of Particulars of the named plaintiff representatives. Based upon the foregoing, plaintiffs submit that they have satisfied all of the requirements of CPLR 901 and 902.

III.BNL'S OPPOSITION:

BNL alleges that plaintiffs have failed to sustain their burden of showing that the prerequisites for class certification have been met. BNL contends that plaintiffs have failed to make a sufficient showing, with evidence in admissible form, that the putative subclass members are identifiable, and are properly members of such subclasses as defined by plaintiffs. Further, BNL alleges that plaintiffs have failed to demonstrate that their proposed subclasses satisfy any of the five criteria of CPLR 901 for class certification. In support thereof, BNL has submitted, among other things, the affidavits of Leonard D. Hamilton, D.M., Ph.D. ("Hamilton") and James G. Taylor, M.A.I., [*5]S.R.A. ("Taylor"). BNL alleges that the Hamilton affidavit demonstrates that plaintiffs' claims are not appropriate for class treatment due to the numerous causative factors for the injuries allegedly sustained, and the varied allegations of exposure will require individualized inquiries for each class member to prove his or her claim. Similarly, BNL contends that the Taylor affidavit indicates that a property-by-property analysis will be necessary with respect to the proposed class members' property damage claims, because of the numerous individualized factors that must be analyzed in determining whether property damage occurred and the cause of such property damage.

BNL alleges that plaintiffs have made "virtually no substantive changes" to their brief of August 6, 2003, submitted in support of their original motion for class certification. As such, BNL argues that it is impossible to know to what extent plaintiffs' alleged exposure was caused by non-nuclear materials, in conformance with the holding of the Appellate Division herein. BNL further argues that plaintiffs have not provided any additional facts as to why plaintiffs' alleged exposure to non-nuclear hazardous materials is an appropriate subject for class certification, instead relying on the prior arguments proffered with respect to both nuclear and non-nuclear hazardous materials. Specifically, BNL points to plaintiffs' instant assertion that there were fourteen different "polluting events," yet at least seven of them involve nuclear substances. In addition, BNL alleges that plaintiffs failed to amend their complaint to account for the deaths of plaintiffs JEAN O'GARA and DOROTHY OSARCZUK, who died on January 26, 1997 and August 2, 2000, respectively.

BNL further alleges that plaintiffs have failed to make a sufficient factual showing that the proposed subclass members meet the criteria of the subclass as defined by plaintiffs, which criteria BNL claims are too vague to identify members with the requisite certainty. For example, BNL argues that there is no limitation on, or description of, residency requirements. As a result, the definition could encompass a person who lived or worked in the subclass area for a single day or month. BNL contends that duration of residency is relevant to duration of exposure, which would therefore relate to the issue of injuries sustained. Furthermore, BNL alleges the proposed subclass definitions improperly require one to reach an ultimate conclusion on the disputed factual and legal issues before the class members can be identified.

Moreover, BNL alleges that the definitions of the medical monitoring purported subclasses lack specificity, in that they fail to recite that they are based upon activities related to BNL or that were caused by BNL; that plaintiffs failed to identify any logical reason for drawing the boundary lines where they did; that plaintiffs failed to show that the purported subclass members have been exposed to hazardous substances and as a result have suffered adverse health effects; that plaintiffs failed to show that the purported subclass members seeking to recover for damages for fear of suffering adverse health effects had a "rational basis" for such fear; and that plaintiffs failed to show that any particular parcel of property in the property damage subclasses had been actually exposed to non-nuclear contaminants. Instead, BNL claims that plaintiffs have merely drawn a circle on a map with a 10-mile radius, with BNL in the [*6]middle.

With respect to the commercial property damage subclass, BNL argues that there are no named plaintiffs that are "commercial property owners who own property within the same designated area south of BNL's facilities." BNL alleges that the only named plaintiff representative for this subclass, JAMES ANDREJKOVIC, testified at his deposition that he has never owned commercial property. In addition, BNL alleges that the deposition testimony of the named plaintiffs reveal that plaintiffs cannot identify any contamination or exposure that affected their property; that plaintiffs never had their property tested for the presence of contaminants; and that plaintiffs do not know if their property values have decreased.

As discussed, BNL alleges that plaintiffs have failed to satisfy any of the prerequisites for class certification contained in article 9 of the CPLR, and therefore their motion must be denied. Specifically, BNL claims that plaintiffs' motion is completely silent on the issue of whether the class is so numerous that joinder of all members is impracticable. Further, BNL argues that there are multiple individual issues and questions as to each proposed member's exposure, susceptibility, illnesses, and injuries that preclude certification of Subclasses 1, 3, and 6. With respect to the property damage subclasses, Subclasses 2 and 4, BNL similarly argues that these subclasses involve individual questions of law and fact, and that the proof needed to substantiate a "stigma" claim will be individualized to particular properties. Moreover, BNL contends that in the proposed subclass area, the properties themselves vary greatly in size, style, and type, as would the alleged degree of negative impact upon the use and enjoyment of the properties. Some claim inability to tend their garden, while others claim inability to use condominium facilities. As plaintiffs are alleging at least fourteen separate contaminating incidents spanning from the 1960s to the 1990s, BNL alleges that individualized inquiries must be made as to when a subclass member acquired a property, as well as to which contaminant that member and/or property was allegedly exposed.

Next, BNL alleges that it has asserted affirmative defenses, and that it will be a complex process to determine which defenses apply to which claims of which plaintiffs. In particular, BNL cites its statute of limitations defense, which BNL argues must be applied on an individual basis, as proposed members claim exposure during various time periods and of various lengths, some dating back to 1956.

Regarding the adequacy of the named representatives, BNL alleges that they do not fairly and adequately protect the interests of the class, as numerous individual factors will have to be considered in determining the cause of a particular injury or illness, such as genetic history, smoking, alcohol use, exposure to sun, diet, or hormones. Therefore, one representative's personal injury claim will not be representative of every member's personal injury claim, and one representative's need for medical monitoring claim will not be representative of every member's need for medical monitoring claim. Moreover, BNL alleges that none of the representatives have [*7]claimed any contamination on their properties, or taken any steps to determine whether their property values have decreased, and thus would be inadequate representatives on these claims. Further, BNL alleges that plaintiffs' application is silent as to whether the named plaintiffs have the financial ability to pursue this matter as a class action, which, if granted, could amount to thousands of potential class members. BNL argues that the inherent conflicts among the proposed members concerning various forms of relief sought render the named representatives inadequate.

Finally, BNL contends that plaintiffs have failed to demonstrate that a class action is superior to other available methods for the fair and efficient adjudication of this controversy. BNL alleges that the individualized claims will cause the class to "splinter into piecemeal litigation of individual claims," and that the discovery on these individual claims will take an enormous amount of time and resources. Further, BNL indicates that a trial of the claims of the proposed subclasses would be unmanageable.

As discussed, BNL has submitted an affidavit of Hamilton in opposition hereto, a doctor of medicine licensed to practice in New York as well as in the United Kingdom. Hamilton informs the Court that he has devoted his medical career to the fields of hematology, the structure of DNA, epidemiology, and the risk of radiation to humans. Hamilton worked as the Head of the Biomedical and Environmental Assessment Group at BNL from 1973 to 1994, and is currently a professor of medicine at the State University of New York at Stony Brook and an adjunct professor of biometry and epidemiology at the Medical University of South Carolina. Hamilton avers that after a review of the complaint, the bills of particulars, the deposition testimony, and the medical records, it is his profession opinion that plaintiffs' claimed injuries and conditions do not present common questions of fact, nor are the named plaintiffs' claims typical of the claims of the subclasses the plaintiffs seek to represent.

Hamilton alleges that plaintiffs claim that they suffer from cancer, nausea, headaches, and immunological problems, as well as psychological and emotional problems due to fear of contracting health problems. As such, Hamilton opines that these diverse injuries, along with the members' diverse medical and personal histories, do not raise common questions of fact. To the contrary, Hamilton contends that individual questions would far outnumber any common questions. For example, with respect to cancer alone, Hamilton indicates that there are over 200 different types of cancer, which can develop in over 60 different organs in the body, with a multiplicity of risk factors for each type of cancer. Thus, for each proposed member, Hamilton alleges it will be necessary to analyze the individual risk factors for that type of cancer, as well as the duration and intensity of the alleged exposure to the various risks, to determine the cause of the cancer (if possible), and to determine whether the cancer could only have been caused by the alleged exposure to contaminants emanating from BNL. Hamilton indicates that the remaining personal injuries claimed, in excess of twenty conditions, each have broad ranges of illnesses and conditions and can also be caused by a myriad of factors. Hamilton alleges that even class members with the same condition would have individualized issues based upon the class member's [*8]unique medical and personal history. For the same reasons, Hamilton alleges that the named plaintiff representatives cannot be found to be typical of the class members they seek to represent. Finally, Hamilton opines that the proposed medical monitoring subclass, Subclass 3, does not lend itself to common questions of fact as each member would have individualized monitoring needs.

Also as discussed, BNL has submitted an affidavit of Taylor in opposition hereto, and in particular in opposition to Subclasses 2 and 4, the residential and commercial property damage subclasses. Taylor is a licensed real estate appraiser, having over thirty-two years of experience in the field of real estate consulting, valuation and assessment, including having analyzed the effects of groundwater contamination on the value of real property. With respect to Subclasses 2 and 4, Taylor's professional opinion is that plaintiffs' claims regarding the diminution of property values are not common or typical, and do not present common questions of fact, as: (1) the value of residential real estate depends on a large number of factors that are unique to each property and each of the numerous neighborhoods; (2) the effect of the alleged contamination from BNL can only be determined on a property-by-property basis; (3) each of the named plaintiffs own unique property that was uniquely affected by the contamination, which would not be representative of all diminution of property values in the proposed class area; (4) none of the representatives own commercial property; and (5) damages will have to be determined on a case-by-case basis. Moreover, Taylor alleges that plaintiffs have failed to submit expert support for their proposed subclasses, or any methodology to determine damages on a class-wide or subclass basis.

Taylor alleges that the effects of environmental contamination on an individual property depend primarily on four sets of factors, to wit: (1) property-specific characteristics; (2) neighborhood or location-specific characteristics; (3) the level and duration of the environmental exposure; and (4) other intervening factors. Taylor indicates that these factors are highly variable and the effects are not uniform, so therefore the impact of contamination on property values is similarly variable. Some properties have overhead power lines and are adjacent to railroad tracks; some are single-level dwellings, some are double-story dwellings; and some are condominiums. Taylor alleges that each proposed subclass area includes properties with a wide range of property characteristics relating to, among other things, the size of the lot, the size, age and condition of the structure, the landscaping, the noise, and the vegetation. Taylor opines that the named plaintiffs' properties cannot be representative of the proposed subclass members' properties, as the properties are not relatively homogenous with respect to property characteristics, location, type, and level and duration of the alleged contamination. Furthermore, Taylor alleges that given the diversity of the neighborhoods and the properties themselves, it is not possible to reliably estimate the impact of the alleged contamination on property values on a class-wide basis, except for evaluating each property individually.

Based upon the foregoing, BNL seeks a denial of plaintiffs' motion in its entirety.

IV.PLAINTIFFS' REPLY:

In reply, plaintiffs concede that BNL's arguments have merit with respect to the personal injury subclasses (Subclasses 1 and 6) and medical monitoring subclasses (Subclass 3), as courts have generally refused to certify mass tort personal injury class actions due to the individualized analysis for each class member. The Court notes that plaintiffs have also not contested BNL's argument that plaintiffs have not named a commercial property owner as a plaintiff representative herein, thereby precluding certification of the diminution of value of commercial properties and/or businesses subclass (Subclass 4). However, plaintiffs maintain that the diminution in value of residential properties subclass (Subclass 2) and the economic loss subclass (Subclass 5) are appropriate for class certification. Plaintiffs allege that the geographic area for the diminution in value properties has been precisely drawn, and that homeowners within this area can be easily identified and properties can be easily valued from property transfer taxes assessed and paid at the time of sale. Plaintiffs further allege that despite the varying characteristics in the properties, the issue is whether the properties have suffered a loss in value in a common manner from the exposure to the contamination, which according to plaintiffs' expert was in the amount of twenty-four (24%) percent.

Further, plaintiffs allege that they need not show that an actual trespass has occurred with respect to each property, as a cause of action for nuisance does not require a physical invasion onto a plaintiff's land, but only interference with the owner's right to use or enjoy the land. Plaintiffs contend that a nuisance has occurred, if for no other reason than 800 homeowners have lost the use of free and potable well water. Notably, plaintiffs cite to the Order of September 4, 1996 (Berler, J.) deciding BNL's motion to dismiss, wherein Justice Berler held that "there will likely be members of the class whose properties have not been invaded by the toxic fumes migrating from the BNL facility. Nevertheless, they have actionable claims sounding in private nuisance and a physical invasion is not required." In addition, plaintiffs argue that a trespass need not occur to recover stigma damages.

Regarding the economic loss subclass (Subclass 5), plaintiffs allege that this subclass should be certified, as it is undisputed that 800 homeowners have lost the use of free and potable well water, and were required to hookup to the Suffolk County Water Authority and will incur those costs for at least another 65 years. Plaintiffs contend that each potential subclass member's claim would be identical to all other class members, without any individual questions of law or fact.

Accordingly, in reply, plaintiffs seek certification solely with respect to the property value diminution subclass and the economic loss subclass. In addition, plaintiffs seek certification of the liability issues, arguing that the issue of liability can be tried once on behalf of all members of the proposed classes.

[*9]V.CLASS ACTION CERTIFICATION LAW:

CPLR 901, entitled "[p]rerequisites to a class action," provides in pertinent part: a. One or more members of a class may sue or be sued as representative parties on behalf of all if:1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;2. there are questions of law or fact common to the class which predominate over any questions affecting only individual members;3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;4. the representative parties will fairly and adequately protect the interests of the class; and5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy

(CPLR 901).

In addition, CPLR 902, entitled "[o]rder allowing class action," provides in pertinent part: "Within sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action, the plaintiff shall move for an order to determine whether it is to be so maintained. An order under this section may be conditional . . . The action may be maintained as a class action only if the court finds that the prerequisites under section 901 have been satisfied. Among the matters which the court shall consider in determining whether the action may proceed as a class action are: 1. the interest of members of the class in individually controlling the prosecution or defense of separate actions; 2. the impracticability or inefficiency of prosecuting or defending separate actions; [*10] 3. the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; 4. the desirability or undesirability of concentrating the litigation of the claim in the particular forum; 5. the difficulties likely to be encountered in the management of a class action

(CPLR 902).

CPLR 902 provides that a court may permit a class action to be maintained only if it finds that all five of the prerequisites of CPLR 901 have been satisfied (CPLR 902; Askey v Occidental Chemical Corp., 102 AD2d 130 [1984]), and a plaintiff has the burden of showing that the criteria of CPLR 901 and 902 have been met (see Ackerman v Price Waterhouse, 252 AD2d 179 [1998]; Canavan v Chase Manhattan Bank, 234 AD2d 493 [1996]). Whether a lawsuit qualifies as a class action matter is a determination made upon a review of the statutory criteria as applied to the facts presented; it ordinarily rests within the sound discretion of the trial court (Small v Lorillard Tobacco Co., 94 NY2d 43 [1999]). The Appellate Division, Second Department, has stressed the commonality, predominance, and superiority criteria of CPLR 901 in their class action decisions (see e.g. Karlin v IVF Am., 239 AD2d 562 [1997]; Komonczi v Fields, 232 AD2d 374 [1996]), and has held that the criteria to be considered in granting class action certification are to be liberally construed (Argento v Wal-Mart Stores, Inc.,AD3d, 2009 NY Slip Op 7778 [2d Dept 2009]; Friar v Vanguard Holding Corp., 78 AD2d 83 [1980]). In determining the propriety of a class action, the question is not whether the plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of CPLR 901 and 902 have been met (see Kindel v Kaufman & Board Homes, Inc., 67 AD2d 938 [1979]; see also Eisen v Carlisle & Jacquelin, 417 US 156 [1974]).

Moreover, in recent years courts have certified classes in mass tort or environmental cases that involve mass property damage or exposure of a population or property to toxic or harmful substances (see Amchem Products, Inc. v Windsor, 521 US 591 [1997]; Fox v. Cheminova, Inc., 213 FRD 113 [EDNY 2003]; Cook v Rockwell International Corporation, 181 FRD 473 [D Col 1998]; In Re Agent Orange Product Liability Litigation, 100 FRD 718 [EDNY 1982]; In Re Three Mile Island Litigation, 87 FRD 433 [MD Pa 1980]).

VI.FINDINGS OF FACT AND CONCLUSIONS OF LAW: [*11]

The Court finds that plaintiffs have sustained their burden of demonstrating that the statutory prerequisites for class action certification under CPLR 901 (a) have been met with respect to the residential property damage subclass and the economic loss subclass (see Emilio v Robison Oil Corp., 63 AD3d 667 [2009]; Beller v William Penn Life Ins. Co. of NY, 37 AD3d 747 [2007]; Wilder v May Dept. Stores Co., 23 AD3d 646 [2005]; see also Dupler v Costco Wholesale Corp., 249 FRD 29 [EDNY 2008]), and that the additional factors of CPLR 902 weigh in favor of certification with respect to these classes (see e.g. Fleming v Barnwell Nursing Home & Health Facilities, Inc., 309 AD2d 1132 [2003]).

Based upon the fact that the number of homeowners who were forced to hook up to public water amount to 800, as well as plaintiffs' allegation that the property value diminution subclass may amount to over one thousand property owners, the Court finds that there are numerous class members herein. Further, CPLR 901 (a) (2) does not require that all questions of law or fact be common; it only requires that the common questions predominate over individual questions. Courts generally focus on the liability issue in deciding whether the predominance requirement is met, and if the liability issue is common to the class, common questions are held to predominate over individual questions (see Dura-Bilt Corp. v. Chase Manhattan Corp., 89 FRD 87 [SDNY 1981]). Here, the proposed members share common questions of fact or law with regard to, among other things, the loss of free, private water wells, costs attendant to hooking up to public water, and the diminution of value of their properties as a result of the contamination or threat of contamination from the alleged negligent acts and/or omissions of BNL.

Moreover, the Court finds that the claims of the named plaintiffs are typical of those of the proposed subclasses, as now sought by plaintiffs, and are not in conflict with the interests of the other class members (see Emilio v Robison Oil Corp., 63 AD3d 667, supra; Dupler v Costco Wholesale Corp., 249 FRD 29, supra). Plaintiffs have also demonstrated that they can fairly and adequately protect the interests of the class, as they have, among other things, retained experienced counsel in the area of mass tort class action litigation. Further, plaintiffs have shown that the class action procedure is superior to other potential methods for the fair and efficient adjudication of the controversy, given the vast majority of individuals who have incurred damages but have not commenced any litigation against BNL, and the quantum of scientific and expert proof that will be required to determine the extent and manner in which contaminants escaped from the BNL facility (see CPLR 901 [a] [5]; CPLR 902; Emilio v Robison Oil Corp., 63 AD3d 667, supra; Dupler v Costco Wholesale Corp., 249 FRD 29, supra).

The Court further finds that the property damage and economic loss subclasses, originally proposed as Subclasses 2 and 5, will not require individualized proof to the extent of the personal injury subclasses, and will not face the difficulty of the personal injury subclasses in proving a causal relationship between the acts and/or [*12]omissions of BNL and the alleged injuries sustained (see Catalano v Heraeus Kulzer, Inc., 305 AD2d 356 [2003]; Geiger v American Tobacco Co., 277 AD2d 420 [2000]; Rosenfeld v A. H. Robins Co., 63 AD2d 11 [1978]). Most individualized inquiries would relate to the issue of damages, which would not defeat class certification (see Broder v MBNA Corp., 281 AD2d 369 [2001]; Goodwin Realties Assoc. v CATV Enterprises, 275 AD2d 269 [2000]). In addition, plaintiffs have demonstrated that these claims are typical and common to each other, as opposed to the personal injury claims asserted, and that the class action would achieve economies in time, effort and expense, and promote uniformity of decision as to persons similarly situated (Friar v Vanguard Holding Corp., 78 AD2d 83, supra). Moreover, the Court notes that courts have certified classes in mass tort cases where property damage is involved (see e.g. Godwin Realty Assocs. v CATV Enters., 275 AD2d 269, supra; Murray v. Allied-Signal, Inc., 177 AD2d 984 [1991]).

In view of the foregoing, this motion is GRANTED to the extent that the class action will consist of the following two subclasses, pursuant to CPLR 906 (2), as proposed and amended by plaintiffs and now amended further by the Court, which definitions may be refined upon additional information revealed during the discovery process and upon application to the Court:[FN1]

(1) Residential homeowners whose properties lie within an area south of BNL's facilities as indicated in Exhibit "12," in North Shirley, more particularly described as the area bounded on the north by the Long Island Expressway, on the west by William Floyd Parkway, on the south by Moriches-Middle Road, and on the east by Weeks Avenue, and whose property values may have been adversely affected, or who may have lost the use and enjoyment of their property within a ten-mile radius of the BNL facility, as a result of exposure to non-nuclear hazardous and toxic materials emanating from the BNL facility; and

(2) Persons who may have suffered economic loss, including but not limited to, the expense of securing alternative water supplies, including the cost to hookup to the public water supply and the yearly cost of that water, and other economic losses within a ten-mile radius around the BNL facility, in North Shirley, more particularly described as the area bounded on the north by the Long Island Expressway, on the west by William Floyd Parkway, on the south by Moriches-Middle Road, and on the east by Weeks Avenue, as a result of exposure to non-nuclear hazardous and toxic materials emanating from the BNL facility.

In addition, the Court certifies the liability issues herein, such that liability may be tried [*13]once on behalf of all members of the proposed classes.

Plaintiffs shall submit a proposed notice of class action for approval by the Court (see CPLR 904). Said notice is to: (1) provide a sufficiently detailed description of the instant action and the nature of the underlying claims; (2) advise each member that the Court will exclude him or her from the class if so requested within twenty (20) days; and (3) state that the judgment, whether favorable or not, will include all members who do not request exclusion; and (4) state that the Court has made no determination of the merits of this action.

Plaintiffs shall further furnish the Court with a proposed form to be served with the notice of action, requesting exclusion from the class, specific information regarding the effects of such exclusion, and the address to which the form shall be sent within thirty (30) days of service of a copy of this Order with notice of entry. With regard to the manner of giving notice of the action, the Court directs that the notice be sent by certified mail, return receipt requested.

Based on the foregoing, this action is certified as a class action upon the condition that plaintiffs comply with the above directives regarding the

submission of the notice for approval by the Court and the service of said notice upon the proposed class members as required to effectuate certification (see Loretto v Group W. Cable, 135 AD2d 444 [1987]).

The foregoing constitutes the decision and Order of the Court.

Dated: December 23, 2009

Hon. Joseph Farneti

Acting Justice Supreme Court Footnotes

Footnote 1: The definitions of the two subclasses are based upon the definitions of Subclasses 2 and 5 as originally proposed by plaintiffs. For the convenience of the parties, the language in the subclass definitions that has been deleted by the Court is indicated in strikeout font, and the language that has been added by the Court is indicated in underline font.