Category: [App Div 1st Dept]

CPLR R. 3212 generally

CPLR R. 3212 Motion for summary judgment

Pellegrini v Brock, 2009 NY Slip Op 06721 (App. Div., 1st, 2009)

"On a motion for summary judgment, the court should accept as true the evidence submitted by the opposing party" (O'Sullivan v Presbyterian Hosp. in City of N.Y. at Columbia Presbyt. Med. Ctr.,
217 AD2d 98, 101 [1995]). Here, defendant-respondent submitted evidence
in admissible form which raised a triable issue of fact as to whether
the money at issue was a gift or a loan, including, inter alia, an
affidavit from a non-party who said that plaintiff Roberta Pellegrini
had told her that plaintiffs had given defendants money to buy a house.

The bold is mine.

CPLR R. 5015(a)(4), CPLR § 317, Service is hard to rebut

CPLR R. 5015 Relief from judgment or order
(a) On motion
(1) excusable default…
(2) newly-discovered evidence…
(3) fraud, misrepresentation, or other misconduct of an adverse party
(4) lack of jurisdiction to render the judgment or order
(5) reversal, modification or vacatur of a prior judgment or order upon which it is based

CPLR § 308 Personal service upon a natural person
(2)  by delivering the summons within the state to a person of suitable age and discretion...
(4) where service under paragraphs one and two cannot be made with due diligence, by affixing the summons to the door

CPLR § 317 Defense by person to whom summons not personally delivered

Ogunbemi v New York City Hous. Auth., 2009 NY Slip Op 06637 (App. Div., 1st, 2009)

Plaintiffs failed to demonstrate a reasonable excuse for their default (St. Rose v McMorrow, 43 AD3d 1146
[2007]). Their proffered excuse of inability to obtain the expert
engineer's affidavit in a timely manner because he was out of town for
an extended period is unpersuasive because plaintiffs concede they
received the affidavit six days before the motion's return date.
Plaintiffs' excuse that they were unable to obtain their medical
expert's signed affirmation due to the doctor's busy schedule is
similarly unavailing, even assuming that the delay in obtaining the
affirmation was not the result of their own lack of diligence, because
the affirmation was not necessary to oppose the motion in light of the
engineer's affidavit. Finally, the excuse that they misplaced certain
photographs documenting the scene of the accident and the injuries to
the child is unconvincing, not only because it was raised at the
eleventh hour, three months after the motion was filed, but also
because plaintiffs admitted they may have misplaced the photos
themselves, proffered no reason for why the photos were even necessary
to oppose summary judgment given the child's mother's testimony
regarding the layout of the accident scene, and conceded that they had
numerous other photos that would have sufficed if indeed they were
necessary. Nor did plaintiffs meet their burden of demonstrating a
meritorious opposition to the summary judgment motion.

Sturino v Nino Tripicchio & Son Landscaping, 2009 NY Slip Op 06829 (App. Div., 2nd, 2009)

The Supreme Court providently exercised its discretion in denying
that branch of the defendants' motion which was, in effect, pursuant to
CPLR 5015(a)(4) to vacate a clerk's judgment entered upon their default
in appearing or answering the complaint. The process server's
affidavits of service constituted prima facie evidence of proper
service pursuant to CPLR 308(4) (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d 983; Olesniewicz v Khan,
8 AD3d 354, 355). The affidavit of the defendant Nino Tripicchio,
submitted on his behalf as well as on behalf of the defendant Nino
Tripicchio & Son Landscaping (hereinafter together the Nino
Tripicchio defendants), consisted of an unsubstantiated denial of
service of the summons and complaint and was insufficient to rebut the
presumption of proper service (see Mortgage Elec. Registration Sys., Inc. v Schotter, 50 AD3d at 983; 96 Pierrepont v Mauro,
304 AD2d 631). The defendant Giovanni Tripicchio made no attempt to
rebut the presumption of proper service, as he failed to submit an
affidavit (see Olesniewicz v Kahn, 8 AD3d at 355).

The Supreme Court providently exercised its discretion in
determining that the Nino Tripicchio defendants were not entitled to
relief pursuant to CPLR 317. They failed to demonstrate that they did
not personally receive notice of the summons and complaint in time to
defend the action (see Cavalry Portfolio Servs., LLC v Reisman, 55 AD3d 524, 525; Caruso v Valentin, 54 AD3d 987).

The bold is mine.

Sufficiently particular but individual issues predominate: CPLR R. 3016; CPLR § 901

CPLR R. 3016 Particularity in specific actions

CPLR § 901 Prerequisites to a class action

Dobroshi v Bank of Am., N.A., 2009 NY Slip Op 06382 (App. Div., 1st, 2009)

…

Contrary to defendant's claim, the second cause of action pleads fraud with sufficient particularity to satisfy CPLR 3016(b) (see Lanzi v Brooks,
43 NY2d 778, 780 [1977]). It informs defendant that plaintiff complains
of the significant increase in settlement costs between the Good Faith
Estimate of Settlement Services (GFE) and the HUD-1 statement, and of
the fact that she was informed about this increase only one day before
the closing. 

Plaintiff's allegation that defendant deliberately underestimated
settlement costs to induce her to obtain a loan from it, rather than
from a competing lender states a claim for fraud (see Wright v Selle, 27 AD3d 1065, 1067-1068 [2006]). The GFE was not a mere statement of future intent (see Watts v Jackson Hewitt Tax Serv., Inc., 579 F Supp 2d 334, 352 [ED NY 2008]), and the issue of material misrepresentation is not subject to summary disposition (see e.g. Brunetti v Musallam, 11 AD3d 280, 281 [2004]).

…

The motion court should have stricken the class action allegations.
First, individual issues will predominate because all claims under
General Business Law § 349 will require [*3]analysis of whether the ultimate closing costs were so unreasonable as to amount to a deceptive practice (cf. Weil v Long Island Savings Bank, FSB,
200 FRD 164, 174 [ED NY 2001] [distinguishing a case where each
plaintiff would have to provide evidence of the services performed
compared to a case where the plaintiffs claim that the alleged scheme
was illegal per se]). Moreover, plaintiff contends that defendant's bad
faith in making estimates is actionable. However, to determine if
defendant acted in bad faith, it will be necessary to individually
examine each of the tens of thousands of transactions at issue.
Finally, plaintiff's proposed class would number in the thousands and
would have individually tailored written disclosures, different types
and amounts of fees and different reasons for the increase in closing
costs. These circumstances negate the possibility that common questions
would predominate (see Rose v SLM Fin. Corp., 254 FRD 269, 272-73 [WD NC 2008]).

The bold is mine.

Experts

Bygrave v New York City Hous. Auth., 2009 NY Slip Op 06361 (App. Div., 1st, 2009)

This decision is too long to pull a cut and paste job.  Long story short, defendant moved for summary judgment based on the affidavit of its expert.  The expert referred to a few reports, but not all of them were attached; however this did not bother the Court.  The Court rejected the testimony of the expert because it was not based upon "an individualized assessment of plaintiff's particular condition."  Click on the case to read more.  It's a lead paint case.

Before you go, take note:

Because defendant failed to meet its initial burden of establishing
entitlement to judgment in its favor as a matter of law, the motion
court should have denied the motion for summary [*5]judgment without even considering the sufficiency of plaintiff's opposition papers (see Winegrad, 64 NY2d at 853).

Expert testimony, even if unrebutted will not always carry the day.  Although, to be clear, the Court did find that had defendant met its burden, plaintiff opposition was sufficient to raise an issue of fact.

Lately the First Department has had a dissent in almost every decision.  This one was no exception.

Interpleader

CPLR § 1006 Interpleader

Navarone Prods., N.V. v HSBC Gibbs Gulf Ins. Consultants Ltd., 2009 NY Slip Op 06367 (App. Div., 1st, 2009)

Order, Supreme Court, New York County (Herman Cahn, J.), entered
June 24, 2008, that, after a nonjury trial, found Navarone Productions,
N.V. entitled to certain film distribution revenues, and order, same
court and Justice, entered December 31, 2008, that, to the extent
appealed from, as limited by the briefs, directed Sony Pictures to pay
Navarone 60% of the revenues it is holding and all future revenues from
the film, unanimously affirmed, with costs.

This interpleader action required the trial court to determine
who was entitled to receive monies that Sony holds, and will receive in
the future, representing proceeds on the distribution of a 1970's movie
entitled Force Ten from Navarone. In determining that plaintiff
Navarone Productions, N.V. was entitled to all monies and to future
distributions, the trial court based its findings on a fair
interpretation of the evidence (see Thoreson v Penthouse Intl., 80 NY2d 490, [*2]495
[1992]), especially in light of appellant's scheme with the
interpleaded defendants to defraud Sony into wrongfully paying them by
failing to notify Sony that appellant had already received full payment
under a settlement agreement (see generally Pecorella v Greater Buffalo Press, Inc.,
107 AD2d 1064, 1065 [1985]). We find that the court did not err in its
evidentiary rulings and that the rulings, regardless of their validity,
would not have altered the outcome of the case (see e.g. Vertical Computer Sys., Inc. v Ross Sys., Inc., 59 AD3d 205 [2009]).

The bold is mine.

CPLR § 901(a) Class certified; 10 is not enough, unless there is no union

CPLR § 901 Prerequisites to a class action

Kudinov v Kel-Tech Constr. Inc., 2009 NY Slip Op 06292 (App. Div., 1st, 2009)

The party seeking class certification bears the burden of establishing the criteria prescribed in CPLR 901(a) (CLC/CFI Liquidating Trust v Bloomingdale's, Inc., 50 AD3d 446, 447 [2008]). This burden must be met by providing an evidentiary basis for class certification (Matros Automated Elec. Const. Corp. v Libman, 37 AD3d 313 [2007]; Nachbaur v American Tr. Ins. Co., 300 AD2d 74, 75 [2002], lv dismissed 99 NY2d 576 [2003], cert den sub nom Moore v American Tr. Ins. Co., 538 US 987 [2003]).

Whether a particular lawsuit qualifies as a class action rests
within the sound discretion of the trial court. In exercising this
discretion, a court must be mindful of our holding that the class
certification statute should be liberally construed (Englade v HarperCollins Publs., 289 AD2d 159 [2001]).
[*2]

Here, the evidence is
sufficient to establish numerosity, without determining the precise
number, given the number of projects, the certified payroll records and
the testimony and affidavits regarding the number of workers
potentially affected by the allegations (see, Globe Surgical Supply v Gieco Ins. Co., 59 AD3d 129 [2008]; Pesantez v Boyle Envtl. Servs.,
251 AD2d 11 [1998]). While it is true that the exact number of the
putative class has not been determined, and that some members of the
putative class have submitted affidavits affirmatively stating that
they were not aggrieved by the allegations against defendants, the
number of workers alleged to have been underpaid was high enough to
justify the court's exercise of its discretion in certifying the class.
This is particularly true in light of the fact that many workers were
not members of any union, and were of different trades than that of the
main plaintiff.

Moreover, the commonality of claims predominates, given the
same types of subterfuges allegedly employed to pay lower wages. The
fact that different trades are paid on a different wage scale and thus
have different levels of damages does not defeat certification (see Englade, at
160). The ability to resolve such inquiries by referring to payroll and
other documentary evidence distinguishes this case from those in which
individualized inquiries defeat commonality (see e.g. Batas v Prudential Ins. Co., 37 AD3d 320, 322 [2007]; Gaidon v Guardian Life Ins. Co. Of Am., 2 AD3d 130 [2003]).

While it is appropriate in determining whether an action should
proceed as a class action to consider whether a claim has merit, this
"inquiry is limited" (see Bloom v Cunard Line, 76 AD2d 237, 240 [1980]), and such threshold determination is not intended to be a substitute for summary judgment or trial.

NARDELLI, J. (dissenting in part)

…

Three projects at issue on this appeal were bonded by Fidelity and
Deposit Company of Maryland. The class representative certified by the
court on those projects was Alexander Kudinov, a union carpenter. He
testified that aside from himself, five or six carpenters worked at
P.S. 104, one worked at P.S. 114, and four or five worked at P.S. 198.
Of this maximum total of 13 carpenters, 3 of them submitted affidavits
stating, "I have always been paid the wages due, and all of my benefits
have been paid to my union." Thus, at best, there are 10 carpenters in
the aggregate on these three projects who have wage grievances. I
respectfully submit that 10 does not meet the numerosity requirement
required by the statute. Furthermore, when the projects are viewed on
an individual basis, at best there are five other similarly situated
carpenters on some of the projects, and as few as one other on the P.S.
114 project. I see no reason why resort to class action status is
required to resolve any of the grievances that Kudinov or other
carpenters may have regarding their wages on these particular projects.

…

Under such circumstances, where the number of people in the class is
not identified, where members of the putative class have sworn that
they do not have any grievances, and where the nature of the claims
requires evidence on an individual basis, it is difficult to discern
how a class action is a superior, or even an appropriate, vehicle for
resolution of the claims.

The bold is mine. 

Looks like the controlling factor here is that there are no union workers.

Best Evidence Rule Objection was Properly Overruled

Madison-68 Corp. v Malpass, 2009 NY Slip Op 06154 (App. Div., 1st, 2009)

Plaintiff's objection, made under the best evidence rule, to the
admission of the lease rider was properly overruled because it had
offered into evidence a copy of the same document. The J.H.O. at times
cut off questioning, but did so in an evenhanded manner to expedite the
trial, never amounting to prejudicial error (see Lewis v Port Auth. of N.Y. & N.J., 8 AD3d 205,
206 [2004]). Nor was the judgment against the weight of the evidence,
since the case essentially turned on the parties' competing oral
testimony. The issue of the prevailing party notwithstanding, it was
error for the J.H.O. to determine that defendants were entitled to an
award of attorneys' fees. In Oxford Towers Co., LLC v Wagner (58 AD3d 422 [2009]), this Court held that an identical lease provision was not covered by Real Property Law § 234.

The bold is mine.

Due Process and Brain Surgery

Matter of Detres v New York City Hous. Auth., 2009 NY Slip Op 06152 (App. Div., 1st, 2009)

An evidentiary hearing before the court to supplement the record should
not have been directed, and instead the matter should have been
remitted to the Housing Authority for further proceedings (see Matter of Ansonia Assoc. v State Div. of Hous. & Community Renewal, 147 AD2d 420, 421 [1989]; Matter of Board of Educ. of Pleasantville Union Free School Dist. v Ambach,
132 AD2d 257, 261 [1987]). Further consideration by the agency is
warranted because petitioner underwent major brain surgery some five
months before the administrative hearing and exhibited some confusion
at the hearing. As a result of the Hearing Officer's failure to
question petitioner, who represented herself pro se, about her medical
issues and their ramifications, petitioner was not afforded a full
opportunity to be heard, particularly with respect to when her [*2]tenancy commenced (see Matter of Hall v Municipal Hous. Auth. for City of Yonkers, 57 AD2d 894, 894-895 [1977], appeal dismissed 42 NY2d 973 [1977], lv denied
42 NY2d 805 [1977] [due process affords public housing tenants the
right of opportunity to be heard]. Pursuant to Supreme Court's
directive, petitioner submitted evidence that she had co-resided in the
apartment with her mother for more than the requisite year and that
respondent implicitly approved of the co-residency (see Matter of McFarlane v New York City Hous. Auth., 9 AD3d 289, 291 [2004]).

The bold is mine.

Appellate Procedure: I don’t know why, but I kind of like this decision

CPLR § 5701 Appeals to appellate division from supreme and county courts
(a) Appeals as of right
(2) from an order not specified in subdivision (b), where the motion it decided was made upon notice…

Reyes v Sequeira, 2009 NY Slip Op 05986 (App. Div., 1st, 2009)

Supreme Court requested appraisals for both parcels from Skyline Appraisals Inc. and [*3]East
Coast Appraisals, and the appraisals were performed. While neither
party objected to the appraisals performed by Skyline, defendant sent a
letter to Supreme Court objecting to the appraisal performed by East
Coast. Defendant was concerned that the East Coast appraisal was
inaccurate and greatly undervalued the parcels. Defendant requested a
conference between the parties and the court to "resolve" issues
relating to the East Coast appraisal; no motion was made by either
party for any relief.

…

Without the prompting of a motion, Supreme Court determined the value of the parcels.

…

The court did not discuss the terms of the stipulation of settlement
that required the court to determine the value of the properties by
averaging two appraisals, and did not explain how its decision
to average the three appraisals was consonant with the terms of
stipulation of settlement. Nor did the court explain why it believed
that one of the valuation methods was to discard the lowest and highest
appraisals, a method that would entail no averaging. This appeal by
defendant ensued.

Prior to oral argument on this appeal, defendant moved to vacate the
stipulations of settlement — both defendant and the court that heard
and decided that motion treated the court's August 7, 2007
on-the-record statements as a stipulation; plaintiff, however, asserts
that the court gave directives to which the parties did not stipulate.
After oral argument of the appeal, Supreme Court granted the motion to
vacate. The court concluded that no binding stipulations existed, and
stated that the parties were free to conduct disclosure and file a note
of issue when the matter was ready for trial. Thus, although the order
appears not to have expressly vacated the order on appeal determining
the value of the properties, it implicitly does so (see generally Banker v Banker, 56 AD3d 1105, 1107 [2008]; Savino v "ABC Corp.," 44 AD3d 1026, 1027 [2007]; Matter of Jefferson County Dept. of Social Servs. v Mark L.O., 12 AD3d 1037, 1037-1038 [2004], lv denied
4 NY3d 794 [2005]). Moreover, of course, the order on appeal depends
entirely on the existence and validity of the stipulations.

Regardless of whether Supreme Court correctly vacated the stipulations that are the [*5]subject
of this appeal, the stipulations have been vacated and this appeal is
moot because the rights of the parties cannot be affected by a
determination of this appeal (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Matter of Feustel v Rosenblum,
6 NY3d 885 [2006] ["Appeal taken as of right from the Appellate
Division judgment . . . and motion for leave to appeal from said
judgment . . . dismissed as moot upon the ground that the judgment of
the Appellate Division has been vacated by a subsequent order of that
Court"]; Matter of Rodriguez v Johnson, 45 AD3d 279 [2007], lv denied 10 NY3d 705 [2008] ["Petitioner's appeal is moot because Supreme Court vacated the judgment on appeal"]; Fidata Trust Co. Mass. v Leahy Bus. Archives, 187 AD2d 270, 271 [1992] ["The order on appeal was subsequently vacated and thus rendered moot"]; see also Perez v Morse Diesel Intl., 10 AD3d 497
[2004]; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book
7B, CPLR C5517:1, at 208 [1995] ["If the disposition of [a] motion [to
reargue, renew or vacate an order] does substantially affect the
original order . . . it may have some impact on the appeal. If it
alters the order in such a way as to remove the grievance that accounts
for the appeal, it should abate the appeal"]). Because the appeal has
been rendered moot we cannot and do not pass on the issues presented (see Hearst Corp.,
50 NY2d at 713-714 ["It is a fundamental principle of our jurisprudence
that the power of a court to declare the law only arises out of, and is
limited to, determining the rights of persons which are actually
controverted in a particular case pending before the tribunal. This
principle, which forbids courts to pass on academic,
hypothetical, moot, or otherwise abstract questions, is founded
both in constitutional separation-of-powers doctrine, and in
methodological strictures which inhere in the decisional process of a
common-law judiciary"]).

The dissent asserts that "by ruling that the intervening order
implicitly' vacates the order on appeal, [we] thereby pass[] on a
substantive issue" and "render[] an advisory opinion construing both
the status of the order appealed from and [the] effect of an order not
even before us." As is obvious from our decision, we pass on no
substantive issues relating to the rights of the parties. Equally as
obvious, we are not "rendering an advisory opinion construing both the
status of the order appealed from and [the] effect of an order not even
before us." Rather, we simply conclude that the order on appeal is moot
(and, as discussed below, nonappealable) and therefore the appeal must
be dismissed. Of course, we first conclude that the order vacating the
stipulations implicitly vacates the order on appeal. But that
conclusion merely reflects the exercise of our jurisdiction to
determine our jurisdiction (see United States v Mine Workers, 330 US 258, 291 [1947]).

The dissent states that by moving to vacate the stipulations, defendants "unilaterally prevent[ed] this Court
from deciding whether the motion court erred in vacating what
appears to be a valid agreement between the parties." In the first
place, however, defendants took no "unilateral" action. Defendants made
a motion on notice to vacate the stipulations, a motion Supreme Court
granted. Second, this Court is not precluded from determining whether
the stipulations are valid. To the contrary, we may determine that
precise issue should plaintiff perfect his appeal from the order
vacating the stipulations.

…

The appeal should be dismissed for another reason — it is from a sua sponte order from which no appeal lies (see Sholes v Meagher, 100 NY2d 333 [2003]; Person v Einhorn, 44 AD3d 363 [2007]; Unanue v Rennert, 39 AD3d 289 [2007]; Diaz v New York Mercantile Exch., 1 AD3d 242 [2003]). In Sholes
the Court of Appeals addressed the issue of the appealability of sua
sponte orders. There, an attorney was sanctioned by Supreme Court for
engaging in frivolous conduct in the course of a personal injury case.
From the bench the trial court gave the parties a briefing schedule,
requiring the attorney to submit an affidavit explaining why she should
not be sanctioned for her conduct and directing her adversary to submit
an affidavit detailing his costs and expenditures at trial. After both
sides submitted papers, the trial court ordered the attorney to pay her
adversary approximately $14,000. The attorney appealed to the Second
Department, which dismissed the appeal because the order imposing
sanctions did not decide a motion made on notice (295 AD2d 593 [2002]).

The Court of Appeals granted leave and concluded that the
Second Department had correctly dismissed the appeal. The Court of
Appeals stated that, "[w]ith limited exceptions, an appeal may be taken
to the Appellate Division as of right from an order deciding a motion
made upon notice when — among other possibilities — the order affects a
substantial right. There is, however, no right of appeal from an ex
parte order, including an order entered sua sponte" (100 NY2d at 335
[internal citations omitted]). The Court also stated "[t]hat an order
made sua sponte is not an order deciding a motion on notice is apparent
from various CPLR provisions, including the definition of motion (see
CPLR 2211) and the provision for dismissal for failure to prosecute,
which distinguishes between a court initiative' and a party's motion' (see CPLR 3216)" (id.
at 335 n 2). While the trial court had created a procedure to ensure
that the parties had an opportunity to be heard before the court acted,
the Court stressed that
"the submissions ordered sua sponte by the trial court were not
made pursuant to a motion on notice as contemplated by CPLR 5701(a)(2).
While the procedure in this particular case may well have produced a
record sufficient for appellate review, there is no guarantee that the
same would be true in the next case. Moreover, the amount of notice
will vary from case to case, and its sufficiency may often be open to
debate. Adherence to the procedure specified by CPLR 5701(a) uniformly
provides for certainty, while at the same time affording the parties a
right of [*7]review by the Appellate Division. We are therefore unwilling to overwrite that statute" (id. at 336).

As is evident from the briefs, the record and the attorneys'
statements at oral argument, the order determining the value of the
parcels was not the product of a motion made on notice. Rather, that
order was issued sua sponte and therefore is not appealable as of right
(id.; Person, supra; Unanue, supra; Diaz, supra).

The bold is mine.

Maybe it's the dissent.  Maybe it's the procedural wonk in me.  Maybe I'm just weird.  But I like this decision.

CPLR § 901: App. Div. can make de novo review of class certification decision

CPLR § 901 Prerequisites to a class action

Yeger v E*Trade Sec. LLC, 2009 NY Slip Op 06077 (App. Div., 1st, 2009)

In April 2008, Justice Cahn granted class certification and found the Yegers to be proper class representatives.
Noting that the "minuscule" nature of the damages sought did not
bar the claim, the court found the requisite class action element of
commonality based on the allegations that "the same practices were
done" to all members of the class. Aware that plaintiffs had accepted a
refund, the court stated there were "other deductions from the account
for [m]aintenance [f]ees which plaintiffs contend were deducted early
and which were not returned or accepted." After motion practice about
the proper term of the class period, the parties eventually stipulated,
without prejudice to this appeal, to a class period "commencing with
the third quarter of 2003 and ending with the fourth quarter of 2003"
as to all customers charged an AMF "in violation of their customer
agreement."

The Appellate Division may exercise de novo review of a class
certification decision, "even when there has been no abuse of
discretion as a matter of law by the nisi prius court" (Small v Lorillard Tobacco Co., 94 NY2d 43, 53 [1999]). To determine whether a lawsuit [*3]qualifies
as a class action, a court applies the five criteria of CPLR 901(a)
(numerosity, commonality, typicality, adequacy of representation and
superiority) to the
facts (see Hazelhurst v Brita Prods Co., 295 AD2d 240, 242 [2002])[FN1].
"[T]hat wrongs were committed pursuant to a common plan or pattern does
not permit invocation of the class action mechanism where the wrongs
done were individual in nature or subject to individual defenses" (Mitchell v Barrios-Paoli, 253 AD2d 281, 291 [1999]).

Whether E*Trade's conduct in assessing AMFs a day early caused
an individual class member to suffer actual damages depends upon facts
so individualized that it is impossible to prove them on a class-wide
basis. The motion court concluded that class certification was
appropriate because there was a common question as to whether E*Trade
collected the AMF too early, ie, before the date permitted in E*Trade's
contracts. However, this is only half the question. A breach of
contract claim only exists if E*Trade's common conduct actually damaged
a customer. Therefore, to recover, each class member would have to show
that he or she would have avoided the fee had E*Trade collected it at
the proper time. There were several actions that customers could have
taken to avoid the assessment (such as depositing additional funds or
executing additional securities trades), as well as other conditions
not under their control that could have prevented it, such as when
E*Trade, as a courtesy, refunded those customers who paid the AMF. It
is this aspect of proof that would be subject to a host of factors
peculiar to the individual. This aspect of proof is critical. To allow
the Yegers, or any class member, to recover the fee merely because
E*Trade collected it early—without proof that each member of the class
would have taken steps to avoid the fee had collection occurred at its
proper time—would result in a windfall to those plaintiffs who would
not have taken corrective action. In certain cases, it could also
result in writing the AMF out of the agreement entirely, a fee the
parties had agreed to freely. Accordingly, individualized issues,
rather than common ones, predominate (CPLR 901[a][2]).

In addition, plaintiffs are not proper class representatives
because their rejection of E*Trade's offer to refund the fee renders
their claim atypical (CPLR 901[a][3]). We have considered the
plaintiffs' remaining contentions and find them unavailing.

The bold is mine.