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FILED: WESTCHESTER COUNTY CLERK 02/01/2022 11:07 AM INDEX NO. 60767/2018
NYSCEF DOC. NO. 1074 RECEIVED NYSCEF: 02/01/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
PAMELA GOLDSTEIN,
ELLYN & TONY BERK, as Administrators
of the Estate of Winifred Berk, and
PAUL BENJAMIN, on behalf of Index No. 60767/2018
themselves and all others similarly
situated, Hon. Linda S. Jamieson
Plaintiffs, NOTICE OF ENTRY
v.
HOULIHAN/LAWRENCE INC.,
Defendant.
PLEASE TAKE NOTICE that the within is a true copy of a Decision and
Order by the Hon. Linda S. Jamieson, J.S.C., dated January 21, 2022 and entered in
the office of the Clerk of Westchester County on January 25, 2022 in the within
action.
Dated: New York, New York
February 1, 2022
By: /s/ Jeremy Vest
Jeremy Vest, Esq.
MINTZ, LEVIN, COHN, FERRIS,
GLOVSKY AND POPEO, P.C.
Chrysler Center
666 Third Avenue
New York, NY 10017
William S. Ohlemeyer, Esq.
BOIES SCHILLER FLEXNER LLP
333 Main Street
Armonk, NY 10504
Attorneys for Plaintiffs
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To:
Alfred E. Donnellan
Nelida Lara
DELBELLO DONNELLAN WEINGARTEN
WISE & WIEDERKEHR LLP
One North Lexington Avenue
White Plains, New York 10601
Robert D. MacGill (Pro Hac Vice)
Matthew Ciulla (Pro Hac Vice)
MACGILL PC
Circle Tower Building
55 Monument Circle
Suite 1200C
Indianapolis, IN 46204
Attorneys for Defendant Houlihan Lawrence, Inc.
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To commence the statutory timeRECEIVED NYSCEF:
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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.
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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
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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 ¶¶ 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
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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),1 “a 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,
1
CPLR § 901(a) provides: “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; 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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Turning first to an analysis of the five CPLR § 901(a)
factors, the first such factor is numerosity, i.e., whether “the
class is so numerous that joinder of all members, whether
otherwise required or permitted, is impracticable.” See CPLR §
901(a)(1). Where, as here, the record reflects that defendant
brokered approximately 10,000 dual-agent residential real estate
transactions during the relevant time frame of January 1, 2011 to
July 14, 2018, such that up to 20,000 buyers and sellers were
parties to such transactions, plaintiffs have established that
the numerosity requirement readily has been met. See Vest Aff.,
Ex. 90; see also Chernett v Spruce 1209, LLC, 2021 NY App. Div.
LEXIS 7386, *5 (1st Dept Dec. 28, 2021) (holding that the
numerosity requirement was satisfied in a putative class action
involving 127 potential class members); Agolli v Zoria Hous.,
LLC, 188 AD3d 514, 514 (1st Dept 2020) (stating that “40 was the
presumed threshold of numerosity for class certification.”).
The second CPLR § 901(a) factor is commonality, i.e.,
whether “there are questions of law or fact common to the class
which predominate over any questions affecting only individual
members.” See CPLR § 901(a)(2). The Court of Appeals of New
York has explained that “commonality cannot be determined by any
mechanical test and that the fact that questions peculiar to each
individual may remain after resolution of the common questions is
not fatal to the class action.” City of New York v Maul, 14 NY3d
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at 514. “Rather, it is predominance, not identity or unanimity,
that is the linchpin of commonality.” City of New York v Maul,
14 NY3d at 514 (emphasis added). See also Matter of Long Is.
Power Auth. Hurricane Sandy Litig., 2021 NY App. Div. LEXIS 7437
at *3; Friar v Vanguard Holding Corp., 78 AD2d 83, 97 (2d Dept
1980) (stating that “the decision as to whether there are common
predominating questions of fact or law so as to support a class
action should not be determined by any mechanical test, but
rather, whether the use of a class action would achieve economies
of time, effort, and expense, and promote uniformity of decision
as to persons similarly situated.”).
Here, although the Court credits defendant’s argument that
there is not absolute unanimity among the proposed class (for
example, certain proposed class members will invariably be
purchasers of real estate, while others will be sellers thereof,
and that there will certainly be differences among the class
members as to damages sustained), plaintiffs have established
that there is predominance such that “there are questions of law
or fact common to the class which predominate over any questions
affecting only individual members.” See CPLR § 901(a)(2); see
also Burdick v Tonoga, Inc., 179 AD3d 53, 58 (3d Dept 2019)
(holding that “Defendant’s argument that individual class members
will have different damages, though likely true, does not alter
this conclusion. Even if, after determining the answers to these
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common questions, it becomes clear that questions peculiar to
each individual may remain or that there are varied damages
suffered among class members, class certification is still
permissible.”); Ferrari v National Football League, 153 AD3d
1589, 1591 (4th Dept 2017) (stating that “where the same types of
subterfuge were allegedly employed [by defendant] to pay [class
action plaintiffs] lower wages, commonality of the claims will be
found to predominate, even though the putative class members have
different levels of damages.”).
Accordingly, the Court finds that defendant’s uniform
training, script and practices, alleged to have been part of an
orchestrated “strategy” to increase in-house sales by
representing both buyers and sellers in thousands of real estate
transactions – including by offering undisclosed in-house bonuses
to defendant’s real estate brokers so as to incentivize dual-
agency sales – meets the commonality requirement. See Corsello v
Verizon N.Y., Inc., 18 NY3d 777, 791 (2012) (holding that where
the defendant pursued a specific “strategy” affecting the
plaintiffs, the commonality requirement had been met because “it
would be reasonable to infer that the case will be dominated by
class-wide issues - whether [defendant’s] practice is lawful, and
if not what the remedy should be”); City of New York v Maul, 14
NY3d at 514 (stating that “although this litigation may be close
to the outer boundary of the concept of commonality,” because
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“each of the plaintiffs and proposed class members possesses his
or her own unique factual circumstances and special needs,”
holding that the commonality requirement had nonetheless been met
“given the liberal construction intended by the Legislature” and
because of the existence of “common allegations that transcend
and predominate over any individual matters”).
Further with respect to commonality, the Court does not
credit defendant’s strained argument that “[t]he fact that the
proposed class would contain the buyer and seller of the same
house in the same transaction creates irreconcilable intra-class
conflicts.” (see Def. Br.). Its citation to Cooper v Sleepy's,
LLC, 120 AD3d 742, 743-744 (2d Dept 2014) for this contention is
inapposite, as that case involved a proposed class representative
who sought recovery of a commission directly from another
proposed class member. In that case, the Court denied class
certification because there were several such conflicts among the
proposed class members. See Cooper, 120 AD3d at 744. By
contrast, in this action, the evidence submitted by the parties
does not demonstrate any notable conflict between or among
proposed class members, and defendant’s reference to hypothetical
“irreconcilable intra-class conflicts” is purely speculative. It
does not warrant the denial of class certification.
Nor does the Court credit defendant’s argument that class
certification is unwarranted because this Court in its Decision
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and Order dated April 8, 2019 (the “2019 Decision”) stated that
“[w]hile the alleged commonality between these plaintiffs may be
alleged non-disclosure, the ultimate resolution of the claims can
only be determined by individual analysis of each transaction.”
(see NYSCEF Doc. No. 370 at p. 13). Notably, the 2019 Decision
was issued years ago in the context of a CPLR § 3211 motion to
dismiss the pleadings for failure to state a cause of action.
The Court’s analysis was strictly limited to the four corners of
the parties’ pleadings. At that very early stage of the
litigation, the Court did not have the benefit of having reviewed
the voluminous record that is presently before the Court or the
parties’ legal arguments concerning class certification. The
Court does not credit defendant’s assertion that class
certification must now be denied because of a passing statement
in the 2019 Decision. See Borawski v Abulafia, 140 AD3d 817, 818
(2d Dept 2016) (stating that a court’s determination on a CPLR
3211 motion does not bind it by the law of the case doctrine in
connection with its determination of subsequent motions).
The third CPLR § 901(a) factor, typicality, is met where
“the claims or defenses of the representative parties are typical
of the claims or defenses of the class.” See CPLR § 901(a)(3).
“The commonality and typicality requirements tend to merge into
one another.” Onadia v City of New York, 56 Misc. 3d 309, 320
(Sup. Ct. Bronx Cty. 2017). “Typical claims are those that arise
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from the same facts and circumstances as the claims of the class
members.” Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129,
143 (2d Dept 2008); see Ackerman v Price Waterhouse, 252 AD2d
179, 201 (1st Dept 1998) (holding that the typicality requirement
had been met where the plaintiff’s claims “arose out of the same
course of conduct and are based on the same theories as the other
class members, [thus] they are plainly typical of the entire
class.”).
Plaintiffs have established that they have met the
typicality requirement such that the claims of the representative
parties are typical of the claims of the putative class. A
review of the affidavits furnished by Goldstein, Ellyn, Tony, and
Benjamin unambiguously demonstrates that such representatives
each state that they purchased or sold residential real estate in
Westchester, Putnam, and Dutchess counties between January 1,
2011 and July 14, 2018, and that defendant represented both the
buyer and the seller in every such transaction. See Goldstein
Aff. at ¶¶ 6-10; Ellyn Aff. at ¶¶ 12-18; Tony Aff. at ¶¶ 8-14;
Benjamin Aff. at ¶¶ 6-10. The affidavits further reflect that
each of the representatives avers that they did not give timely
and/or valid informed written consent to defendant’s dual agency,
and that they did not receive adequate disclosure concerning
defendant’s representation of both buyer and seller, or of the
in-house bonus incentive that was being offered and paid for dual
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agency transactions. See Goldstein Aff. at ¶¶ 7-10; Ellyn Aff.
at ¶¶ 15-18; Tony Aff. at ¶¶ 11-14; Benjamin Aff. at ¶¶ 7-10.
Accordingly, inasmuch as the named plaintiffs’ claims “derive
from the same course of conduct that gives rise to the claims of
the other class members and is based upon the same legal theory,”
the typicality requirement of CPLR § 901(a)(3) has been met. See
Hurrell-Harring v State of New York, 81 AD3d 69, 73 (3d Dept
2011); see also Roberts v Ocean Prime, LLC, 148 AD3d 525, 526
(1st Dept 2017) (holding that the “claims of the putative class
representatives are typical of the class’s claims since . . .
their injuries, if any, derive from the same course of conduct by
defendants.”).
Plaintiffs have also established the fourth CPLR § 901(a)
factor, in demonstrating that “the representative parties will
fairly and adequately protect the interests of the class.” See
CPLR § 901(a)(4). In considering this factor, “a court should
consider any potential conflicts of interest, the parties’
familiarity with the lawsuit and financial resources, and the
quality of class counsel.” Ferrari, 153 AD3d at 1592, citing
Cooper, 120 AD3d at 743-744. Here, plaintiffs have each asserted
in their affidavits that they understand their responsibilities
as prospective class representatives, have no conflicts of
interest with any of the putative class members and are committed
to prosecuting the case in the best interest of the proposed
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class members. See Goldstein Aff. at ¶¶ 11-17; Ellyn Aff. at ¶¶
19-25; Tony Aff. at ¶¶ 15-21; Benjamin Aff. at ¶¶ 11-17.
Moreover, plaintiffs have amply established that proposed class
counsel has the background and experience that is necessary to
provide high quality representation to the class. They have also
demonstrated that counsel has the financial resources to
prosecute this action and will continue to pay for all costs
associated with the litigation. See Vest Aff. at ¶¶ 9-15;
Ohlemeyer Aff. at ¶¶ 10-15. Accordingly, plaintiffs have
demonstrated the fourth factor of adequacy of representation as
required by CPLR § 901(a)(4). See Stecko v RLI Ins. Co., 121
AD3d 542, 543 (1st Dept 2014) (holding that “[t]he record
supports a finding that plaintiffs and their counsel can
adequately represent the class.”); Dabrowski v Abax Inc., 84 AD3d
633, 634-635 (1st Dept 2011) (stating that “[p]laintiffs’ counsel
has demonstrated its expertise and zealous representation of the
plaintiffs here, as well as in prior class action cases” such
that adequacy of representation has been established).
Fifth and finally, plaintiffs have demonstrated that “a
class action is superior to other available methods for the fair
and efficient adjudication of the controversy” as required by
CPLR § 901(a)(5). Given that plaintiffs have established that
defendant brokered approximately 10,000 dual-agent residential
real estate transactions during the relevant time frame of
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January 1, 2011 to July 14, 2018 (see Vest Aff., Ex. 90), for
which each transaction invariably includes both a buyer and
seller as possible class members, it would be highly impractical,
burdensome and costly for up to 20,000 distinct plaintiffs to
individually prosecute actions against defendant. Moreover, even
if a small percentage of the 20,000 potential class members
brought individual lawsuits, it would waste judicial resources
and there would be a possibility of inconsistent determinations.
See Roberts, 148 AD3d at 526 (stating that “[c]lass action
treatment will conserve judicial resources, reduce litigation
expenses, and avoid inconsistent outcomes”); Hurrell-Harring, 81
AD3d at 75 (noting that “denial of class certification gives rise
to the possibility of multiple lawsuits involving claims
duplicative of those asserted in this action and inconsistent
rulings by various courts in this state.”). Furthermore, given
the possibility (or perhaps even the likelihood) that damages
purportedly suffered by an individual class member may be dwarfed
by the costs associated with prosecuting a single lawsuit, the
“costs of prosecuting individual actions would result in the
class members having no realistic day in court.” See Ferrari,
153 AD3d at 1593, citing Stecko, 121 AD3d at 543. Therefore,
based upon the record before the Court, it finds that a class
action is “superior to other available methods for the fair and
efficient adjudication of the controversy.” See CPLR §
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901(a)(5); see also Williams v Air Serv Corp., 121 AD3d 441, 442
(1st Dept 2014); Freeman v Great Lakes Energy Partners, L.L.C.,
12 AD3d 1170, 1171 (4th Dept 2004).
Plaintiffs having demonstrated that the prerequisites under
CPLR § 901(a) have been satisfied, the Court will now consider
five factors as set forth in CPLR § 902 in determining whether to
grant class certification.
Preview
FILED: WESTCHESTER COUNTY CLERK 02/01/2022 11:07 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1074 RECEIVED NYSCEF: 02/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PAMELA GOLDSTEIN, ELLYN & TONY BERK, as Administrators of the Estate of Winifred Berk, and PAUL BENJAMIN, on behalf of Index No. 60767/2018 themselves and all others similarly situated, Hon. Linda S. Jamieson Plaintiffs, NOTICE OF ENTRY v. HOULIHAN/LAWRENCE INC., Defendant. PLEASE TAKE NOTICE that the within is a true copy of a Decision and Order by the Hon. Linda S. Jamieson, J.S.C., dated January 21, 2022 and entered in the office of the Clerk of Westchester County on January 25, 2022 in the within action. Dated: New York, New York February 1, 2022 By: /s/ Jeremy Vest Jeremy Vest, Esq. MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. Chrysler Center 666 Third Avenue New York, NY 10017 William S. Ohlemeyer, Esq. BOIES SCHILLER FLEXNER LLP 333 Main Street Armonk, NY 10504 Attorneys for Plaintiffs 1 of 22 FILED: WESTCHESTER COUNTY CLERK 02/01/2022 11:07 AM INDEX NO. 60767/2018 NYSCEF DOC. NO. 1074 RECEIVED NYSCEF: 02/01/2022 To: Alfred E. Donnellan Nelida Lara DELBELLO DONNELLAN WEINGARTEN WISE & WIEDERKEHR LLP One North Lexington Avenue White Plains, New York 10601 Robert D. MacGill (Pro Hac Vice) Matthew Ciulla (Pro Hac Vice) MACGILL PC Circle Tower Building 55 Monument Circle Suite 1200C Indianapolis, IN 46204 Attorneys for Defendant Houlihan Lawrence, Inc. 2 2 of 22 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED To commence the statutory timeRECEIVED NYSCEF: period for appeals NYSCEF:as 01/24/2022 02/01/2022 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 3 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 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 4 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 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 5 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 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 ¶¶ 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 6 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 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 7 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 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),1 “a 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, 1 CPLR § 901(a) provides: “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; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” 6 6 of 8 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 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 9 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 Turning first to an analysis of the five CPLR § 901(a) factors, the first such factor is numerosity, i.e., whether “the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable.” See CPLR § 901(a)(1). Where, as here, the record reflects that defendant brokered approximately 10,000 dual-agent residential real estate transactions during the relevant time frame of January 1, 2011 to July 14, 2018, such that up to 20,000 buyers and sellers were parties to such transactions, plaintiffs have established that the numerosity requirement readily has been met. See Vest Aff., Ex. 90; see also Chernett v Spruce 1209, LLC, 2021 NY App. Div. LEXIS 7386, *5 (1st Dept Dec. 28, 2021) (holding that the numerosity requirement was satisfied in a putative class action involving 127 potential class members); Agolli v Zoria Hous., LLC, 188 AD3d 514, 514 (1st Dept 2020) (stating that “40 was the presumed threshold of numerosity for class certification.”). The second CPLR § 901(a) factor is commonality, i.e., whether “there are questions of law or fact common to the class which predominate over any questions affecting only individual members.” See CPLR § 901(a)(2). The Court of Appeals of New York has explained that “commonality cannot be determined by any mechanical test and that the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action.” City of New York v Maul, 14 NY3d 8 8 of 10 of 20 22 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 at 514. “Rather, it is predominance, not identity or unanimity, that is the linchpin of commonality.” City of New York v Maul, 14 NY3d at 514 (emphasis added). See also Matter of Long Is. Power Auth. Hurricane Sandy Litig., 2021 NY App. Div. LEXIS 7437 at *3; Friar v Vanguard Holding Corp., 78 AD2d 83, 97 (2d Dept 1980) (stating that “the decision as to whether there are common predominating questions of fact or law so as to support a class action should not be determined by any mechanical test, but rather, whether the use of a class action would achieve economies of time, effort, and expense, and promote uniformity of decision as to persons similarly situated.”). Here, although the Court credits defendant’s argument that there is not absolute unanimity among the proposed class (for example, certain proposed class members will invariably be purchasers of real estate, while others will be sellers thereof, and that there will certainly be differences among the class members as to damages sustained), plaintiffs have established that there is predominance such that “there are questions of law or fact common to the class which predominate over any questions affecting only individual members.” See CPLR § 901(a)(2); see also Burdick v Tonoga, Inc., 179 AD3d 53, 58 (3d Dept 2019) (holding that “Defendant’s argument that individual class members will have different damages, though likely true, does not alter this conclusion. Even if, after determining the answers to these 9 9 of 11 of 20 22 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 common questions, it becomes clear that questions peculiar to each individual may remain or that there are varied damages suffered among class members, class certification is still permissible.”); Ferrari v National Football League, 153 AD3d 1589, 1591 (4th Dept 2017) (stating that “where the same types of subterfuge were allegedly employed [by defendant] to pay [class action plaintiffs] lower wages, commonality of the claims will be found to predominate, even though the putative class members have different levels of damages.”). Accordingly, the Court finds that defendant’s uniform training, script and practices, alleged to have been part of an orchestrated “strategy” to increase in-house sales by representing both buyers and sellers in thousands of real estate transactions – including by offering undisclosed in-house bonuses to defendant’s real estate brokers so as to incentivize dual- agency sales – meets the commonality requirement. See Corsello v Verizon N.Y., Inc., 18 NY3d 777, 791 (2012) (holding that where the defendant pursued a specific “strategy” affecting the plaintiffs, the commonality requirement had been met because “it would be reasonable to infer that the case will be dominated by class-wide issues - whether [defendant’s] practice is lawful, and if not what the remedy should be”); City of New York v Maul, 14 NY3d at 514 (stating that “although this litigation may be close to the outer boundary of the concept of commonality,” because 10 10 of 12 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 “each of the plaintiffs and proposed class members possesses his or her own unique factual circumstances and special needs,” holding that the commonality requirement had nonetheless been met “given the liberal construction intended by the Legislature” and because of the existence of “common allegations that transcend and predominate over any individual matters”). Further with respect to commonality, the Court does not credit defendant’s strained argument that “[t]he fact that the proposed class would contain the buyer and seller of the same house in the same transaction creates irreconcilable intra-class conflicts.” (see Def. Br.). Its citation to Cooper v Sleepy's, LLC, 120 AD3d 742, 743-744 (2d Dept 2014) for this contention is inapposite, as that case involved a proposed class representative who sought recovery of a commission directly from another proposed class member. In that case, the Court denied class certification because there were several such conflicts among the proposed class members. See Cooper, 120 AD3d at 744. By contrast, in this action, the evidence submitted by the parties does not demonstrate any notable conflict between or among proposed class members, and defendant’s reference to hypothetical “irreconcilable intra-class conflicts” is purely speculative. It does not warrant the denial of class certification. Nor does the Court credit defendant’s argument that class certification is unwarranted because this Court in its Decision 11 11 of 13 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 and Order dated April 8, 2019 (the “2019 Decision”) stated that “[w]hile the alleged commonality between these plaintiffs may be alleged non-disclosure, the ultimate resolution of the claims can only be determined by individual analysis of each transaction.” (see NYSCEF Doc. No. 370 at p. 13). Notably, the 2019 Decision was issued years ago in the context of a CPLR § 3211 motion to dismiss the pleadings for failure to state a cause of action. The Court’s analysis was strictly limited to the four corners of the parties’ pleadings. At that very early stage of the litigation, the Court did not have the benefit of having reviewed the voluminous record that is presently before the Court or the parties’ legal arguments concerning class certification. The Court does not credit defendant’s assertion that class certification must now be denied because of a passing statement in the 2019 Decision. See Borawski v Abulafia, 140 AD3d 817, 818 (2d Dept 2016) (stating that a court’s determination on a CPLR 3211 motion does not bind it by the law of the case doctrine in connection with its determination of subsequent motions). The third CPLR § 901(a) factor, typicality, is met where “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” See CPLR § 901(a)(3). “The commonality and typicality requirements tend to merge into one another.” Onadia v City of New York, 56 Misc. 3d 309, 320 (Sup. Ct. Bronx Cty. 2017). “Typical claims are those that arise 12 12 of 14 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 from the same facts and circumstances as the claims of the class members.” Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129, 143 (2d Dept 2008); see Ackerman v Price Waterhouse, 252 AD2d 179, 201 (1st Dept 1998) (holding that the typicality requirement had been met where the plaintiff’s claims “arose out of the same course of conduct and are based on the same theories as the other class members, [thus] they are plainly typical of the entire class.”). Plaintiffs have established that they have met the typicality requirement such that the claims of the representative parties are typical of the claims of the putative class. A review of the affidavits furnished by Goldstein, Ellyn, Tony, and Benjamin unambiguously demonstrates that such representatives each state that they purchased or sold residential real estate in Westchester, Putnam, and Dutchess counties between January 1, 2011 and July 14, 2018, and that defendant represented both the buyer and the seller in every such transaction. See Goldstein Aff. at ¶¶ 6-10; Ellyn Aff. at ¶¶ 12-18; Tony Aff. at ¶¶ 8-14; Benjamin Aff. at ¶¶ 6-10. The affidavits further reflect that each of the representatives avers that they did not give timely and/or valid informed written consent to defendant’s dual agency, and that they did not receive adequate disclosure concerning defendant’s representation of both buyer and seller, or of the in-house bonus incentive that was being offered and paid for dual 13 13 of 15 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 agency transactions. See Goldstein Aff. at ¶¶ 7-10; Ellyn Aff. at ¶¶ 15-18; Tony Aff. at ¶¶ 11-14; Benjamin Aff. at ¶¶ 7-10. Accordingly, inasmuch as the named plaintiffs’ claims “derive from the same course of conduct that gives rise to the claims of the other class members and is based upon the same legal theory,” the typicality requirement of CPLR § 901(a)(3) has been met. See Hurrell-Harring v State of New York, 81 AD3d 69, 73 (3d Dept 2011); see also Roberts v Ocean Prime, LLC, 148 AD3d 525, 526 (1st Dept 2017) (holding that the “claims of the putative class representatives are typical of the class’s claims since . . . their injuries, if any, derive from the same course of conduct by defendants.”). Plaintiffs have also established the fourth CPLR § 901(a) factor, in demonstrating that “the representative parties will fairly and adequately protect the interests of the class.” See CPLR § 901(a)(4). In considering this factor, “a court should consider any potential conflicts of interest, the parties’ familiarity with the lawsuit and financial resources, and the quality of class counsel.” Ferrari, 153 AD3d at 1592, citing Cooper, 120 AD3d at 743-744. Here, plaintiffs have each asserted in their affidavits that they understand their responsibilities as prospective class representatives, have no conflicts of interest with any of the putative class members and are committed to prosecuting the case in the best interest of the proposed 14 14 of 16 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 class members. See Goldstein Aff. at ¶¶ 11-17; Ellyn Aff. at ¶¶ 19-25; Tony Aff. at ¶¶ 15-21; Benjamin Aff. at ¶¶ 11-17. Moreover, plaintiffs have amply established that proposed class counsel has the background and experience that is necessary to provide high quality representation to the class. They have also demonstrated that counsel has the financial resources to prosecute this action and will continue to pay for all costs associated with the litigation. See Vest Aff. at ¶¶ 9-15; Ohlemeyer Aff. at ¶¶ 10-15. Accordingly, plaintiffs have demonstrated the fourth factor of adequacy of representation as required by CPLR § 901(a)(4). See Stecko v RLI Ins. Co., 121 AD3d 542, 543 (1st Dept 2014) (holding that “[t]he record supports a finding that plaintiffs and their counsel can adequately represent the class.”); Dabrowski v Abax Inc., 84 AD3d 633, 634-635 (1st Dept 2011) (stating that “[p]laintiffs’ counsel has demonstrated its expertise and zealous representation of the plaintiffs here, as well as in prior class action cases” such that adequacy of representation has been established). Fifth and finally, plaintiffs have demonstrated that “a class action is superior to other available methods for the fair and efficient adjudication of the controversy” as required by CPLR § 901(a)(5). Given that plaintiffs have established that defendant brokered approximately 10,000 dual-agent residential real estate transactions during the relevant time frame of 15 15 of 17 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 January 1, 2011 to July 14, 2018 (see Vest Aff., Ex. 90), for which each transaction invariably includes both a buyer and seller as possible class members, it would be highly impractical, burdensome and costly for up to 20,000 distinct plaintiffs to individually prosecute actions against defendant. Moreover, even if a small percentage of the 20,000 potential class members brought individual lawsuits, it would waste judicial resources and there would be a possibility of inconsistent determinations. See Roberts, 148 AD3d at 526 (stating that “[c]lass action treatment will conserve judicial resources, reduce litigation expenses, and avoid inconsistent outcomes”); Hurrell-Harring, 81 AD3d at 75 (noting that “denial of class certification gives rise to the possibility of multiple lawsuits involving claims duplicative of those asserted in this action and inconsistent rulings by various courts in this state.”). Furthermore, given the possibility (or perhaps even the likelihood) that damages purportedly suffered by an individual class member may be dwarfed by the costs associated with prosecuting a single lawsuit, the “costs of prosecuting individual actions would result in the class members having no realistic day in court.” See Ferrari, 153 AD3d at 1593, citing Stecko, 121 AD3d at 543. Therefore, based upon the record before the Court, it finds that a class action is “superior to other available methods for the fair and efficient adjudication of the controversy.” See CPLR § 16 16 of 18 of 22 20 FILED: WESTCHESTER FILED: WESTCHESTER COUNTY COUNTY CLERK CLERK 02/01/2022 01/25/2022 11:07 08:42 AM AM INDEX NO. INDEX NO. 60767/2018 60767/2018 NYSCEF DOC. NYSCEF DOC. NO. NO. 1074 1072 RECEIVED NYSCEF: RECEIVED NYSCEF: 02/01/2022 01/24/2022 901(a)(5); see also Williams v Air Serv Corp., 121 AD3d 441, 442 (1st Dept 2014); Freeman v Great Lakes Energy Partners, L.L.C., 12 AD3d 1170, 1171 (4th Dept 2004). Plaintiffs having demonstrated that the prerequisites under CPLR § 901(a) have been satisfied, the Court will now consider five factors as set forth in CPLR § 902 in determining whether to grant class certification.