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FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1076 RECEIVED NYSCEF: 02/23/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
X
PAMELA GOLDSTEIN, ELLYN & TONY BERK, as
Administrators of the Estate of Winifred Berk, and
PAUL BENJAMIN, on behalf of themselves and all others NOTICE OF APPEAL
similarly situated,
Plaintiffs,
Index No.: 60767/2018
-against-
HOULIHAN/LAWRENCE INC.,
Defendant.
X
PLEASE TAKE NOTICE, that the Defendant, HOULIHAN/LAWRENCE INC., appeals
to the Appellate Division, Second Department from an order of the Supreme Court, Westchester
County (Jamieson, J.), dated January 21, 2022 and entered with the Clerk of the Court on
January 25, 2022 and that this appeal is from each and every part thereof by which Defendant is
aggrieved.
Dated: Uniondale, New York
February 23, 2022
Yours, etc.,
RIVKIN RADLER LLP
Appellate Counsel for Defendant-Appellant
HOULIHAN/LAWRENCE INC.
By: Ceectib
Evan H. Krinick, Esq.
Michelle A. Bholan, Esq.
J'Naia L. Boyd, Esq.
926 RXR Plaza
Uniondale, New York 11556-0926
(516) 357-3000
File No.: 012078.00001
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Alfred E. Donnellan, Esq.
Nelida Lara, Esq.
DELBELLO DONNELLAN WEINGARTEN
WISE & WIEDERKEHR LLP
Trial Attorneys for Defendant-Appellant
HOULIHAN/LAWRENCE INC.
One North Lexington Avenue
White Plains, New York 10601
Robert D. MacGill, Esq. (admittedpro hac vice)
Matthew Ciulla, Esq. (admitted pro hac vice)
MACGILL PC
Trial Attorneys for Defendant-Appellant
HOULIHAN/LAWRENCE INC.
156 E. Market Street
Suite 1200
Indianapolis, IN 46204
TO: Jeremy Vest, Esq.
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C.
Attorneys for Plaintiffs-Respondents
Chrysler Center
666 Third Avenue
New York, NY 10017
William S. Ohlemeyer, Esq.
BOIES SCHILLER FLEXNER LLP
Attorneys for Plaintiffs-Respondents
333 Main Street
Armonk, NY 10504
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Supreme Court of the State of New York
Appellate Division: Second Judicial Department
Informational Statement (Pursuant to 22 NYCRR 1250.3 [a])
For Court of OriginalInstance
PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the
Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of themselves and
all others similarly situated,
Date Notice of Appeal Filed
- against -
HOULlHAN/LAWRENCE INC.
For Appellate Division
..
Civil Action O CPLR article78 Proceeding E Appeal O Transferred Proceeding
O CPLR article75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR article 78
O O Executive Law § 298
O Habeas Corpus Proceeding
CPLR article 78
O Eminent Domain O CPLR 5704 Review
O Labor Law § 220 or § 220-b
Public Officers Law § 36
O Real Property Tax Law § 1278
O Administrative Review O Business Relationships M Commercial O Contracts
O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters
O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole
O Real Property O Statutory O Taxation O Torts
(other than foreclosure)
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AppeaI .
Paper Appealed From (Check one only): If an appeal has been taken from more than one order or
judgment by the filing of this notice of appeal, please
indicate the below information for each such order or
judgment appealed from on a separate sheet of paper.
M Amended Decree • Determination Order II Resettled Order
• Amended Judgement II Finding • Order & Judgment U Ruling
IN Amended Order IN Interlocutory Decree • Partial Decree Il Other (specify):
• Decision • Interlocutory Judgment • Resettled Decree
• Decree IN Judgment III Resettled Judgment
Court: SUPREME COURT County: WESTCHESTER COUNTY
Dated: JANUARY 21, 2022 Entered: JANUARY 25, 2022
Judge (name in full): LINDA S. JAMIESON Index No.: 60767/2018
Stage: = Interlocutory • Final IIIPost-Final Trial: II Yes D No If Yes: II Jury 0 Non-Jury
Prior Unperfected Appeal and Related Action or Proceeding Information
Are any appeals arising in the same action or proceeding currently pending in the court? El Yes Ill No
If Yes, please set forth the Appellate Division Case Number assigned to each such appeal.
Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other
jurisdiction, and if so, the status of the case:
Original Proceeding
Commenced by: • Order to Show Cause • Notice of Petition II Writ of Habeas Corpus Date Filed:
Statute authorizing commencement of proceeding in the Appellate Division:
Proceeding a to CPLR 7804(g)
Court: County:
Judge (name in full): Order of Transfer Date:
CPLR 5704 Review of Ex Parte Order:
Court: County:
Judge (name in full): Dated:
Description of Appeal, Proceeding or Application and Statement of Issues
Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief
requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred
pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the
nature of the ex parte order to be reviewed.
This is an appeal from an order which denied Defendant's cross motion to strike the Thomas Cusack
Affidavit and which granted Plaintiffs' motion to certify this action as a class action and appointing Plaintiffs
to represent the class.
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Issues: Specify the issue(s) proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the
grounds for reversal or modification to be advanced and the specific relief sought on appeal.
1. Whether the court erred in denying Defendant's cross motion to strike the Thomas Cusack Affidavit
and to preclude Thomas Cusack from testifying as an expert at trial?
2. Whether the court erred in granting Plaintiffs' motion to certify the class action and finding that all the
CPLR Sections 901 and 902 factors to certify a class have been met?
3. Any and all other issues which may arise upon further review of the Record on Appeal.
Party Information
. t,
Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an
appeal, indicate the status of the party in the court of originalinstance and his,her, orits status in this court, if any.
If this for
is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this court.
Examples of party's original status include: plaintiff,defendant, petitioner, respondent, claimant, defendant third-party
plaintiff,third-party defendant, and intervenor. Examples of a party's Appellate Division status include: appellant,
respondent, appellant-respondent, respondent-appellant, petitioner, and intervenor.
No. Party Name Original Status Appellate Division Status
1 PAMELA GOLDSTEIN PLAINTIFF RESPONDENT
2 ELLYN BERK & TONY BERK, as Administrators of the Estate of Winifred Berk PLAINTIFF RESPONDENT
3 PAUL BENJAMIN PLAINTIFF RESPONDENT
4 HOULIHAN/LAWRENCE INC. DEFENDANT APPELLANT
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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Attorney Information
Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the
notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division,
only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or
himself, the box marked "Pro Se" must be checked and the appropriate information for that litigant must be supplied
in the spaces provided.
Attorney/Firm Name: Evan H. Krinick, Esq.; Michelle A. Bholan, Esq.; J'Naia L. Boyd, Esq./RIVKIN RADLER LLP
Address: 926 RXR Plaza
City: Uniondale State: NY Zip: 11556-0926 Telephone No: 516-357-3000
E-mail Address: evan.krinick@rivkin.com; michelle.bholan@rivkin.com; Naia.boyd@rivkin.com
Attorney Type: = Retained • Assigned MI Government • Pro Se • Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above: 4
Attorney/Firm Name: Jeremy C. Vest, Esq./MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.
Address: Chrysler Center 666 Third Avenue
City: New York State: NY Zip: 10017 Telephone No: (212) 935-3000
E-mail Address: JVest@mintz.com
Attorney Type: ri Retained NI Assigned • Government • Pro Se IN Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above: 1-3
Attorney/Firm Name: William S. Ohlemeyer, Esq./BOIES SCHILLER FLEXNER LLP
Address: 333 Main Street
City: Armonk State: NY Zip: 10504 Telephone No: 914 749 8200
E-mail Address: wohlemeyer@bsfIlp.com
Attorney Type: C Retained ❑ Assigned • Government • Pro Se IN Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above: 1-3
Attorney/Firm Name: DELBELLO DONNELLAN WEINGARTEN
Alfred E. Donnellan, Esq.; Nelida Lara, Esq. WISE & WIEDERKEHR LLP
Address: One North Lexington Avenue
City: White Plains State: NY Zip: 10601 Telephone No: (914) 681-0200
E-mail Address: aed@ddw-law.com; shochberg@ddw-law.com; NLG@ddw-law.com
Attorney Type: Retained l• Assigned • Government • Pro Se • Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above: 4
Attorney/Firm Name: Robert D. MacGill, Esq. (pro hac vice to be filed);Matthew Ciulla, Esq. (pro hac vice to be filed)/MACGILL PC
Address: 156 E. Market Street, Suite 1200
City: Indianapolis State: IN Zip: 46204 Telephone No: 317-721-1253
E-mail Address: robert.macgill@macgilllaw.com; matthew.ciulla@macgilllaw.com
Attorney Type: n] Retained • Assigned NI Government ti Pro Se Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above: 4
Attorney/Firm Name:
Address:
City: State: Zip: Telephone No:
E-mail Address:
Attorney Type: LI Retained • Assigned • Government • Pro Se • Pro Hac Vice
Party or Parties Represented (set forth party number(s) from table above:
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NYSCEF DOC. NO. 1073 To commence the statutory timeEtreeilielfalDtplptalCOF:01/24/2022
of right (CPLR § 5513 [a]), you are advised to serve a
copy of this order, with notice of entry, upon all parties.
Disp Dec x Seq. #s 5, 6 Type Class Cert, Strike
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PRESENT: HON. LINDA S. JAMIESON
X
PAMELA GOLDSTEIN, ELLYN & TONY BERK,
as Administrators of the Estate of Index No. 60767/2018
Winifred Berk, and PAUL BENJAMIN,
on behalf of themselves and all DECISION AND ORDER
others similarly situated,
Plaintiffs,
-against-
HOULIHAN LAWRENCE INC.,
Defendant.
X
The following papers numbered 1 to 11 were read on these
motions:
Paper Number
Notice of Motion, Affidavits and Exhibits 1
Memorandum of Law 2
Affidavit and Exhibits in Opposition 3
Memorandum of Law in Opposition 4
Affidavit and Exhibits in Reply 5
Memorandum of Law in Reply 6
Notice of Cross-Motion, Affidavit and Exhibits 7
Memorandum of Law 8
Affirmation and Exhibits in Opposition 9
Memorandum of Law in Opposition 10
Memorandum of Law in Reply 11
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There are two motions before the Court in this putative
class action lawsuit arising out of allegations that defendant
Houlihan Lawrence Inc. acted as an undisclosed, non-consensual
dual agent in representing both buyers and sellers in
approximately 10,000 residential real estate sales transactions.
The first motion, filed by plaintiffs Pamela Goldstein
("Goldstein"), Ellyn Berk ("Ellyn") and Tony Berk ("Tony"), as
administrators of the Estate of Winifred Berk, and by plaintiff
Paul Benjamin ("Benjamin") (collectively, "plaintiffs"), seeks an
order pursuant to CPLR §§ 901 and 902: (1) certifying a class of
home buyers and sellers of residential real estate in
Westchester, Putnam, and Dutchess counties from January 1, 2011
to July 14, 2018 wherein defendant represented both buyer and
seller in the same transaction; (2) appointing plaintiffs as
class representatives; and (3) appointing Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C. ("Mintz") and Boies Schiller
Flexner LLP ("BSF") as co-counsel for the class. The second
motion, filed by defendant, is a cross-motion seeking to strike
the affidavit of Thomas Cusack ("Cusack") sworn to November 1,
2021 (the "Cusack Affidavit") submitted by plaintiffs in support
of their motion for class certification, and to preclude Cusack's
anticipated expert testimony.
As an initial matter, with respect to defendant's cross-
motion to strike the Cusack Affidavit and to preclude Cusack's
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expert testimony, the propriety of expert testimony, including
the "admissibility and scope" thereof, "is a determination within
the discretion of the trial court." Goudreau v Corvi, 197 AD3d
463, 465 (2d Dept 2021); Robins v City of Long Beach, 192 AD3d
709, 710 (2d Dept 2021). Similarly, it is well settled that the
Court may exercise its discretion in determining whether to
strike a non-party and/or expert affidavit furnished by parties
to a litigation. See East Ramapo Cent. Sch. Dist. v New York
Schs. Ins. Reciprocal, 2021 NY App. Div. LEXIS 6400, **10-11 (2d
Dept Nov. 17, 2021); Wells Fargo Bank N.A. v Ho-Shing, 168 AD3d
126, 135 (1st Dept 2019).
Having reviewed all of the parties' submissions, the Court
denies defendant's cross-motion to strike the Cusack Affidavit
and to preclude Cusack's expert testimony at a future trial of
this action. With respect to the Cusack Affidavit, the Court
does not credit defendant's arguments that it should be stricken
as "unreliable and untenable" and that it purportedly "offers
impermissible legal conclusions and narratives of record
evidence" (see Def. Br.). Regardless of whether Cusack
specifically, or another individual generally, is ultimately
qualified as an expert witness to testify at trial, the record
presents no valid basis for striking Cusack's affidavit, which
avers to, inter alia, whether the training and direction that
defendant gave its agents conformed to what is normally expected
3
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of a real estate broker. See Alvarez v First Nat'l Supermarkets,
Inc., 11 AD3d 572, 573 (2d Dept 2004). Indeed, the Cusack
Affidavit makes clear that based upon his decades-long experience
in representing clients as a licensed real estate agent and in
supervising real estate agents for brokerage firms, Cusack is
intimately familiar with the relevant industry standards and
practices that relate to the dual agency issue that is central to
this putative class action lawsuit; and defendant's submissions
do not credibly dispute same (see Cusack Aff. at 15 1, 3-5 and
Curriculum Vitae). Accordingly, although the Court declines to
determine, at this premature stage, whether Cusack ultimately
will be admitted as an expert witness at trial to testify
concerning the issue of dual agency or other related subject
matter, the Cusack Affidavit reflects that he is "qualified to
render an opinion as to the appropriate standard of care by
virtue of his experience and expertise," and defendant's
characterization thereof as "unreliable and untenable" is
unsubstantiated and does not warrant the striking of the Cusack
Affidavit on this record. See Cerrone v N. Shore-Long Is. Jewish
Health Sys., 197 AD3d 449, 452 (2d Dept 2021); Mehtvin v Ravi,
180 AD3d 661, 663-664 (2d Dept 2020).
Furthermore, defendant's assertion that the Cusack Affidavit
sets forth "impermissible legal conclusions and narratives of
record evidence" is also without merit, as Cusack properly cites
4
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to exhibits that summarize and/or support his conclusions, in
accordance with Rule 13(c) of the Rules of the Commercial
Division of the Supreme Court (see 22 NYCRR § 202.70(g) (13[c])).
The Court also denies defendant's cross-motion as premature
to the extent that it requests that Cusack be "precluded from
testifying in the future" at the trial of this action (see Def.
Br.). Defendant does not cite any New York authority requiring
or even suggesting that a court should issue a determination
regarding expert disclosure at trial where, as here, class
certification has not yet occurred. Furthermore, no Order issued
by this Court, from the Court's Proposed Preliminary Conference
Order that was filed on July 31, 2018 to its Class Certification
Discovery Schedule Order dated June 16, 2021, has contemplated
that expert disclosure would occur at this stage of the
litigation, or that the Court would make rulings at this juncture
regarding the preclusion of possible and/or anticipated expert
witnesses at trial. Accordingly, with respect to Cusack's
anticipated expert testimony at a future trial of this action,
"[t]he decision regarding the admissibility of evidence should
await the trial, when the determination may be made in context."
See Grant v Richard, 222 AD2d 1014, 1014 (4th Dept 1995); see
also Speed v Avis Rent-A-Car, 172 AD2d 267, 268 (1st Dept 1991)
(holding that the trial court was "premature" in ruling upon the
admissibility of evidence at a future trial, which determination
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is "more properly made at trial when its relevance, or lack of
relevance, may be determined in context.").
With respect to plaintiffs' motion for class certification,
"[t]he determination of whether a lawsuit qualifies as a class
action under the statutory criteria ordinarily rests within the
sound discretion of the trial court." City of New York v Maul,
14 NY3d 499, 509 (2010); see Lewis v Hallen Constr. Co., Inc.,
193 AD3d 511, 512 (1st Dept 2021). First, pursuant to CPLR §
901(a),I party seeking class certification has the burden to
satisfy the requirements of numerosity, commonality, typicality,
adequacy of representation, and superiority." Matter of Long Is.
Power Auth. Hurricane Sandy Litig. v Long Is. Power Auth., 2021
NY App. Div. LEXIS 7437, *2 (2d Dept Dec. 29, 2021). "These
requirements are to be liberally construed in keeping with the
goals of CPLR article 9." Matter of Long Is. Power Auth.
Hurricane Sandy Litig., 2021 NY App. Div. LEXIS 7437 at *2,
CPLR § 901(a) provides: "One or more members 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; and
5. a class action is superior to other available methods for the fair and
efficient adjudication of the controversy."
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citing Andryeyeva v New York Health Care, Inc., 33 NY3d 152, 183
(2019).
Moreover, "if the court finds that the prerequisites under
section 901 have been satisfied," it should then consider five
factors as set forth in CPLR § 9022 in determining whether to
grant class certification. See Kurovskaya v Project O.H.R., 194
AD3d 612, 613 (1st Dept 2021) (affirming class certification
where, after reviewing the CPLR § 901(a) factors, the trial court
then properly determined that "the CPLR 902 factors weigh in
favor of class certification"); accord Lavrenyuk v Life Care
Servs., Inc., 198 AD3d 569, 569 (1st Dept 2021) (holding that the
trial court "did not improvidently exercise its discretion in
determining that plaintiff met her burden of demonstrating the
prerequisites for class action certification under CPLR 901 and
902").
2
CPLR § 902 provides in relevant part: "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;
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."
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Preview
FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1076 RECEIVED NYSCEF: 02/23/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER X PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of themselves and all others NOTICE OF APPEAL similarly situated, Plaintiffs, Index No.: 60767/2018 -against- HOULIHAN/LAWRENCE INC., Defendant. X PLEASE TAKE NOTICE, that the Defendant, HOULIHAN/LAWRENCE INC., appeals to the Appellate Division, Second Department from an order of the Supreme Court, Westchester County (Jamieson, J.), dated January 21, 2022 and entered with the Clerk of the Court on January 25, 2022 and that this appeal is from each and every part thereof by which Defendant is aggrieved. Dated: Uniondale, New York February 23, 2022 Yours, etc., RIVKIN RADLER LLP Appellate Counsel for Defendant-Appellant HOULIHAN/LAWRENCE INC. By: Ceectib Evan H. Krinick, Esq. Michelle A. Bholan, Esq. J'Naia L. Boyd, Esq. 926 RXR Plaza Uniondale, New York 11556-0926 (516) 357-3000 File No.: 012078.00001 1 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1076 RECEIVED NYSCEF: 02/23/2022 Alfred E. Donnellan, Esq. Nelida Lara, Esq. DELBELLO DONNELLAN WEINGARTEN WISE & WIEDERKEHR LLP Trial Attorneys for Defendant-Appellant HOULIHAN/LAWRENCE INC. One North Lexington Avenue White Plains, New York 10601 Robert D. MacGill, Esq. (admittedpro hac vice) Matthew Ciulla, Esq. (admitted pro hac vice) MACGILL PC Trial Attorneys for Defendant-Appellant HOULIHAN/LAWRENCE INC. 156 E. Market Street Suite 1200 Indianapolis, IN 46204 TO: Jeremy Vest, Esq. MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. Attorneys for Plaintiffs-Respondents Chrysler Center 666 Third Avenue New York, NY 10017 William S. Ohlemeyer, Esq. BOIES SCHILLER FLEXNER LLP Attorneys for Plaintiffs-Respondents 333 Main Street Armonk, NY 10504 2 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1076 RECEIVED NYSCEF: 02/23/2022 Supreme Court of the State of New York Appellate Division: Second Judicial Department Informational Statement (Pursuant to 22 NYCRR 1250.3 [a]) For Court of OriginalInstance PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of themselves and all others similarly situated, Date Notice of Appeal Filed - against - HOULlHAN/LAWRENCE INC. For Appellate Division .. Civil Action O CPLR article78 Proceeding E Appeal O Transferred Proceeding O CPLR article75 Arbitration O Special Proceeding Other O Original Proceedings O CPLR article 78 O O Executive Law § 298 O Habeas Corpus Proceeding CPLR article 78 O Eminent Domain O CPLR 5704 Review O Labor Law § 220 or § 220-b Public Officers Law § 36 O Real Property Tax Law § 1278 O Administrative Review O Business Relationships M Commercial O Contracts O Declaratory Judgment O Domestic Relations O Election Law O Estate Matters O Family Court O Mortgage Foreclosure O Miscellaneous O Prisoner Discipline & Parole O Real Property O Statutory O Taxation O Torts (other than foreclosure) 3 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1076 RECEIVED NYSCEF: 02/23/2022 AppeaI . Paper Appealed From (Check one only): If an appeal has been taken from more than one order or judgment by the filing of this notice of appeal, please indicate the below information for each such order or judgment appealed from on a separate sheet of paper. M Amended Decree • Determination Order II Resettled Order • Amended Judgement II Finding • Order & Judgment U Ruling IN Amended Order IN Interlocutory Decree • Partial Decree Il Other (specify): • Decision • Interlocutory Judgment • Resettled Decree • Decree IN Judgment III Resettled Judgment Court: SUPREME COURT County: WESTCHESTER COUNTY Dated: JANUARY 21, 2022 Entered: JANUARY 25, 2022 Judge (name in full): LINDA S. JAMIESON Index No.: 60767/2018 Stage: = Interlocutory • Final IIIPost-Final Trial: II Yes D No If Yes: II Jury 0 Non-Jury Prior Unperfected Appeal and Related Action or Proceeding Information Are any appeals arising in the same action or proceeding currently pending in the court? El Yes Ill No If Yes, please set forth the Appellate Division Case Number assigned to each such appeal. Where appropriate, indicate whether there is any related action or proceeding now in any court of this or any other jurisdiction, and if so, the status of the case: Original Proceeding Commenced by: • Order to Show Cause • Notice of Petition II Writ of Habeas Corpus Date Filed: Statute authorizing commencement of proceeding in the Appellate Division: Proceeding a to CPLR 7804(g) Court: County: Judge (name in full): Order of Transfer Date: CPLR 5704 Review of Ex Parte Order: Court: County: Judge (name in full): Dated: Description of Appeal, Proceeding or Application and Statement of Issues Description: If an appeal, briefly describe the paper appealed from. If the appeal is from an order, specify the relief requested and whether the motion was granted or denied. If an original proceeding commenced in this court or transferred pursuant to CPLR 7804(g), briefly describe the object of proceeding. If an application under CPLR 5704, briefly describe the nature of the ex parte order to be reviewed. This is an appeal from an order which denied Defendant's cross motion to strike the Thomas Cusack Affidavit and which granted Plaintiffs' motion to certify this action as a class action and appointing Plaintiffs to represent the class. 4 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1076 RECEIVED NYSCEF: 02/23/2022 Issues: Specify the issue(s) proposed to be raised on the appeal, proceeding, or application for CPLR 5704 review, the grounds for reversal or modification to be advanced and the specific relief sought on appeal. 1. Whether the court erred in denying Defendant's cross motion to strike the Thomas Cusack Affidavit and to preclude Thomas Cusack from testifying as an expert at trial? 2. Whether the court erred in granting Plaintiffs' motion to certify the class action and finding that all the CPLR Sections 901 and 902 factors to certify a class have been met? 3. Any and all other issues which may arise upon further review of the Record on Appeal. Party Information . t, Instructions: Fill in the name of each party to the action or proceeding, one name per line. If this form is to be filed for an appeal, indicate the status of the party in the court of originalinstance and his,her, orits status in this court, if any. If this for is to be filed for a proceeding commenced in this court, fill in only the party's name and his, her, or its status in this court. Examples of party's original status include: plaintiff,defendant, petitioner, respondent, claimant, defendant third-party plaintiff,third-party defendant, and intervenor. Examples of a party's Appellate Division status include: appellant, respondent, appellant-respondent, respondent-appellant, petitioner, and intervenor. No. Party Name Original Status Appellate Division Status 1 PAMELA GOLDSTEIN PLAINTIFF RESPONDENT 2 ELLYN BERK & TONY BERK, as Administrators of the Estate of Winifred Berk PLAINTIFF RESPONDENT 3 PAUL BENJAMIN PLAINTIFF RESPONDENT 4 HOULIHAN/LAWRENCE INC. DEFENDANT APPELLANT 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 5 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1076 RECEIVED NYSCEF: 02/23/2022 Attorney Information Instructions: Fill in the names of the attorneys or firms for the respective parties. If this form is to be filed with the notice of petition or order to show cause by which a special proceeding is to be commenced in the Appellate Division, only the name of the attorney for the petitioner need be provided. In the event that a litigant represents herself or himself, the box marked "Pro Se" must be checked and the appropriate information for that litigant must be supplied in the spaces provided. Attorney/Firm Name: Evan H. Krinick, Esq.; Michelle A. Bholan, Esq.; J'Naia L. Boyd, Esq./RIVKIN RADLER LLP Address: 926 RXR Plaza City: Uniondale State: NY Zip: 11556-0926 Telephone No: 516-357-3000 E-mail Address: evan.krinick@rivkin.com; michelle.bholan@rivkin.com; Naia.boyd@rivkin.com Attorney Type: = Retained • Assigned MI Government • Pro Se • Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: 4 Attorney/Firm Name: Jeremy C. Vest, Esq./MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. Address: Chrysler Center 666 Third Avenue City: New York State: NY Zip: 10017 Telephone No: (212) 935-3000 E-mail Address: JVest@mintz.com Attorney Type: ri Retained NI Assigned • Government • Pro Se IN Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: 1-3 Attorney/Firm Name: William S. Ohlemeyer, Esq./BOIES SCHILLER FLEXNER LLP Address: 333 Main Street City: Armonk State: NY Zip: 10504 Telephone No: 914 749 8200 E-mail Address: wohlemeyer@bsfIlp.com Attorney Type: C Retained ❑ Assigned • Government • Pro Se IN Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: 1-3 Attorney/Firm Name: DELBELLO DONNELLAN WEINGARTEN Alfred E. Donnellan, Esq.; Nelida Lara, Esq. WISE & WIEDERKEHR LLP Address: One North Lexington Avenue City: White Plains State: NY Zip: 10601 Telephone No: (914) 681-0200 E-mail Address: aed@ddw-law.com; shochberg@ddw-law.com; NLG@ddw-law.com Attorney Type: Retained l• Assigned • Government • Pro Se • Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: 4 Attorney/Firm Name: Robert D. MacGill, Esq. (pro hac vice to be filed);Matthew Ciulla, Esq. (pro hac vice to be filed)/MACGILL PC Address: 156 E. Market Street, Suite 1200 City: Indianapolis State: IN Zip: 46204 Telephone No: 317-721-1253 E-mail Address: robert.macgill@macgilllaw.com; matthew.ciulla@macgilllaw.com Attorney Type: n] Retained • Assigned NI Government ti Pro Se Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: 4 Attorney/Firm Name: Address: City: State: Zip: Telephone No: E-mail Address: Attorney Type: LI Retained • Assigned • Government • Pro Se • Pro Hac Vice Party or Parties Represented (set forth party number(s) from table above: 6 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 WILED: NYSCEF DOC.WESTCHESTER NO. 1076 COUNTY CLERK 01/25/2022 08:43 A14 INDEX RECEIVED NO. NYSCEF: 60767/2018 02/23/2022 NYSCEF DOC. NO. 1073 To commence the statutory timeEtreeilielfalDtplptalCOF:01/24/2022 of right (CPLR § 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. Disp Dec x Seq. #s 5, 6 Type Class Cert, Strike SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. LINDA S. JAMIESON X PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the Estate of Index No. 60767/2018 Winifred Berk, and PAUL BENJAMIN, on behalf of themselves and all DECISION AND ORDER others similarly situated, Plaintiffs, -against- HOULIHAN LAWRENCE INC., Defendant. X The following papers numbered 1 to 11 were read on these motions: Paper Number Notice of Motion, Affidavits and Exhibits 1 Memorandum of Law 2 Affidavit and Exhibits in Opposition 3 Memorandum of Law in Opposition 4 Affidavit and Exhibits in Reply 5 Memorandum of Law in Reply 6 Notice of Cross-Motion, Affidavit and Exhibits 7 Memorandum of Law 8 Affirmation and Exhibits in Opposition 9 Memorandum of Law in Opposition 10 Memorandum of Law in Reply 11 1 of 20 7 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 FILED: 01/25/2022 08:43 AMj INDEX NO. 60767/2018 NYSCEF DOC.WESTCHESTER NO. 1076 COUNTY CLERK RECEIVED NYSCEF: 02/23/2022 NYSCEF DOC. NO. 1073 RECEIVED NYSCEF: 01/24/2022 There are two motions before the Court in this putative class action lawsuit arising out of allegations that defendant Houlihan Lawrence Inc. acted as an undisclosed, non-consensual dual agent in representing both buyers and sellers in approximately 10,000 residential real estate sales transactions. The first motion, filed by plaintiffs Pamela Goldstein ("Goldstein"), Ellyn Berk ("Ellyn") and Tony Berk ("Tony"), as administrators of the Estate of Winifred Berk, and by plaintiff Paul Benjamin ("Benjamin") (collectively, "plaintiffs"), seeks an order pursuant to CPLR §§ 901 and 902: (1) certifying a class of home buyers and sellers of residential real estate in Westchester, Putnam, and Dutchess counties from January 1, 2011 to July 14, 2018 wherein defendant represented both buyer and seller in the same transaction; (2) appointing plaintiffs as class representatives; and (3) appointing Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. ("Mintz") and Boies Schiller Flexner LLP ("BSF") as co-counsel for the class. The second motion, filed by defendant, is a cross-motion seeking to strike the affidavit of Thomas Cusack ("Cusack") sworn to November 1, 2021 (the "Cusack Affidavit") submitted by plaintiffs in support of their motion for class certification, and to preclude Cusack's anticipated expert testimony. As an initial matter, with respect to defendant's cross- motion to strike the Cusack Affidavit and to preclude Cusack's 2 2 of 20 8 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 INDEXNYSCEF: NO. 60767/2018 NYSCEF FILED: DOC.WESTCHESTER NO. 1076 COUNTY CLERK 01/25/2022 08:43 2N RECEIVED 02/23/2022 NYSCEF DOC. NO. 1073 RECEIVED NYSCEF: 01/24/2022 expert testimony, the propriety of expert testimony, including the "admissibility and scope" thereof, "is a determination within the discretion of the trial court." Goudreau v Corvi, 197 AD3d 463, 465 (2d Dept 2021); Robins v City of Long Beach, 192 AD3d 709, 710 (2d Dept 2021). Similarly, it is well settled that the Court may exercise its discretion in determining whether to strike a non-party and/or expert affidavit furnished by parties to a litigation. See East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 2021 NY App. Div. LEXIS 6400, **10-11 (2d Dept Nov. 17, 2021); Wells Fargo Bank N.A. v Ho-Shing, 168 AD3d 126, 135 (1st Dept 2019). Having reviewed all of the parties' submissions, the Court denies defendant's cross-motion to strike the Cusack Affidavit and to preclude Cusack's expert testimony at a future trial of this action. With respect to the Cusack Affidavit, the Court does not credit defendant's arguments that it should be stricken as "unreliable and untenable" and that it purportedly "offers impermissible legal conclusions and narratives of record evidence" (see Def. Br.). Regardless of whether Cusack specifically, or another individual generally, is ultimately qualified as an expert witness to testify at trial, the record presents no valid basis for striking Cusack's affidavit, which avers to, inter alia, whether the training and direction that defendant gave its agents conformed to what is normally expected 3 3 of 20 9 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 FILED: INDEX NO. 60767/2018 NYSCEF DOC.WESTCHESTER NO. 1076 COUNTY CLERK 01/25/2022 08:43 RECEIVED NYSCEF: 02/23/2022 NYSCEF DOC. NO. 1073 RECEIVED NYSCEF: 01/24/2022 of a real estate broker. See Alvarez v First Nat'l Supermarkets, Inc., 11 AD3d 572, 573 (2d Dept 2004). Indeed, the Cusack Affidavit makes clear that based upon his decades-long experience in representing clients as a licensed real estate agent and in supervising real estate agents for brokerage firms, Cusack is intimately familiar with the relevant industry standards and practices that relate to the dual agency issue that is central to this putative class action lawsuit; and defendant's submissions do not credibly dispute same (see Cusack Aff. at 15 1, 3-5 and Curriculum Vitae). Accordingly, although the Court declines to determine, at this premature stage, whether Cusack ultimately will be admitted as an expert witness at trial to testify concerning the issue of dual agency or other related subject matter, the Cusack Affidavit reflects that he is "qualified to render an opinion as to the appropriate standard of care by virtue of his experience and expertise," and defendant's characterization thereof as "unreliable and untenable" is unsubstantiated and does not warrant the striking of the Cusack Affidavit on this record. See Cerrone v N. Shore-Long Is. Jewish Health Sys., 197 AD3d 449, 452 (2d Dept 2021); Mehtvin v Ravi, 180 AD3d 661, 663-664 (2d Dept 2020). Furthermore, defendant's assertion that the Cusack Affidavit sets forth "impermissible legal conclusions and narratives of record evidence" is also without merit, as Cusack properly cites 4 4 of 20 10 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 NYSCEF (FILED: DOC.WESTCHESTER NO. 1076 COUNTY CLERK INDEX RECEIVED NO. NYSCEF: 60767/2018 02/23/2022 01/25/2022 08:43 ANA NYSCEF DOC. NO. 1073 RECEIVED NYSCEF: 01/24/2022 to exhibits that summarize and/or support his conclusions, in accordance with Rule 13(c) of the Rules of the Commercial Division of the Supreme Court (see 22 NYCRR § 202.70(g) (13[c])). The Court also denies defendant's cross-motion as premature to the extent that it requests that Cusack be "precluded from testifying in the future" at the trial of this action (see Def. Br.). Defendant does not cite any New York authority requiring or even suggesting that a court should issue a determination regarding expert disclosure at trial where, as here, class certification has not yet occurred. Furthermore, no Order issued by this Court, from the Court's Proposed Preliminary Conference Order that was filed on July 31, 2018 to its Class Certification Discovery Schedule Order dated June 16, 2021, has contemplated that expert disclosure would occur at this stage of the litigation, or that the Court would make rulings at this juncture regarding the preclusion of possible and/or anticipated expert witnesses at trial. Accordingly, with respect to Cusack's anticipated expert testimony at a future trial of this action, "[t]he decision regarding the admissibility of evidence should await the trial, when the determination may be made in context." See Grant v Richard, 222 AD2d 1014, 1014 (4th Dept 1995); see also Speed v Avis Rent-A-Car, 172 AD2d 267, 268 (1st Dept 1991) (holding that the trial court was "premature" in ruling upon the admissibility of evidence at a future trial, which determination 5 5 of 20 11 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 INDEXNYSCEF: NO. 60767/2018 NYSCEF FILED: DOC.WESTCHESTER NO. 1076 COUNTY CLERK 01/25/2022 08:43 A4 RECEIVED 02/23/2022 NYSCEF DOC. NO. 1073 RECEIVED NYSCEF; 01/24/2022 is "more properly made at trial when its relevance, or lack of relevance, may be determined in context."). With respect to plaintiffs' motion for class certification, "[t]he determination of whether a lawsuit qualifies as a class action under the statutory criteria ordinarily rests within the sound discretion of the trial court." City of New York v Maul, 14 NY3d 499, 509 (2010); see Lewis v Hallen Constr. Co., Inc., 193 AD3d 511, 512 (1st Dept 2021). First, pursuant to CPLR § 901(a),I party seeking class certification has the burden to satisfy the requirements of numerosity, commonality, typicality, adequacy of representation, and superiority." Matter of Long Is. Power Auth. Hurricane Sandy Litig. v Long Is. Power Auth., 2021 NY App. Div. LEXIS 7437, *2 (2d Dept Dec. 29, 2021). "These requirements are to be liberally construed in keeping with the goals of CPLR article 9." Matter of Long Is. Power Auth. Hurricane Sandy Litig., 2021 NY App. Div. LEXIS 7437 at *2, CPLR § 901(a) provides: "One or more members 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; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy." 6 6 of 20 12 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 FILED: NYSCEF DOC.WESTCHESTER NO. 1076 COUNTY CLERK 01/25/2022 08:43 AN INDEX RECEIVED NO. NYSCEF: 60767/2018 02/23/2022 NYSCEF DOC. NO. 1073 RECEIVED NYSCEF: 01/24/2022 citing Andryeyeva v New York Health Care, Inc., 33 NY3d 152, 183 (2019). Moreover, "if the court finds that the prerequisites under section 901 have been satisfied," it should then consider five factors as set forth in CPLR § 9022 in determining whether to grant class certification. See Kurovskaya v Project O.H.R., 194 AD3d 612, 613 (1st Dept 2021) (affirming class certification where, after reviewing the CPLR § 901(a) factors, the trial court then properly determined that "the CPLR 902 factors weigh in favor of class certification"); accord Lavrenyuk v Life Care Servs., Inc., 198 AD3d 569, 569 (1st Dept 2021) (holding that the trial court "did not improvidently exercise its discretion in determining that plaintiff met her burden of demonstrating the prerequisites for class action certification under CPLR 901 and 902"). 2 CPLR § 902 provides in relevant part: "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; 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." 7 7 of 20 13 of 27 FILED: WESTCHESTER COUNTY CLERK 02/23/2022 04:17 PM INDEX NO. 60767/2018 [FILED: NYSCEF DOC.WESTCHESTER NO. 1076 COUNTY CLERK 01 25 2022 08:43 All RECEIVEDINDEXNYSCEF: NO. 60767/2018 02/23/2022 NYSCEF DOC. NO. 1073 RECEIVED NYSCEF: 01/24/2022 Turn