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INDEX NO. 609519/2023
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
Sharok Jacobi and Chedva_ Benelyahou, Index No. 609519/2023
individually and on behalf of all others similarly
situated,
Plaintiffs,
- against -
Village of Saddle Rock,
Defendant
Memorandum of Law in Support of
Plaintiffs’ Motion for Class Certification
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TABLE OF CONTENTS
TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTRODUCTION
FACTUAL BACKGROUND
LEGAL STANDARDS
ARGUMENT
I REQUIREMENTS OF CPLR § 901 ARE SATISFIED
A Numerosity Established because Joinder is Impracticable .
B Common Questio of Law and Fact Predominate Over Individual
TsSueS.......c.cceeee
Claims of Plaintiffs are Typical to Claims of Class.......cccccceeseeseeeeeeeeeeeees 6
Plaintiffs and Plaintiffs’ Counsel Will Fairly and Adequately Protect
Interests Of Class .......cccecceeceeeseeeseseeseseessseseessseesssesessssessssssesessesesasseeaseeseeeseeeneeeee 7
Class Action is Superior to Other Available Methods to Fairly and
Efficiently Resolve the Issues ..........c.cccececeseseeseseesesesesesesescseecsescscecscssesseseeseeseeeass 8
F. CPLR § 901(b) Inapplicable
IL. CONSIDERATION OF CPLR § 902 SUPPORTS CLASS
CERTIFICATION
CONCLUSION 10
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TABLE OF AUTHORITIES
Cases
Borden y. 400 E. 55th St. Assoc., L.P.,
24 N.Y.3d 382 (2014)...
Brandon v. Chefetz,
106 A.D.2d 162 (Ist Dep't 1985) oo. e ec eeeeeseseescsesseseseesesessssseesesesesssceeseseeasseeeeeseeeees 2,3
Cannon v. Equitable Life Assurance Soc’y,
433 N.Y.S.2d 378 (Sup. Ct. Queens Cty. 1980)
City of New York v. Maul,
14. N.Y.3d 499 (2010) ....eceecesesssseseeseseessseseessseesssssessssesscseseessscsesesseesssescsesceeeseseeesseeeeeseeeees 2,5
Dabrowski v. ABAX Inc.,
2010 NY Slip Op 31981(U), 2010 N.Y. Misc. LEXIS 3507 (Sup. Ct. N.Y. Cty. 2010),
aff'd 84 A.D.3d 633 (1st Dep’t 2011)
Dabrowski v. ABAX Inc.,
84 A.D.3d 633 (Ist Dep’t 2011)
Friar v. Vanguard Holding Corp.,
78 A.D.2d 83 (2d Dep’t 1980). passim
Galdamez v. Biordi Const. Corp.,
831 N.Y.S.2d 347 (Sup. Ct. N.Y. Cty. 2006)
Galdamez v. Biordi Construction Corp.,
50 A.D.3d 357 (Ist Dep’t 2008)... 6,7
Geiger v. Amer. Tobacco Co.,
696 N.Y.S.2d 345 (Sup. Ct. Queens Cty. 1999)
Gross v. Ticketmaster LLC,
798 N.Y.S.2d 709 (Sup. Ct., N.Y. Cty. 2004)
Hess v. EDR Assets LLC,
2021 N.Y. Slip Op 30739(U) (Sup. Ct. N.Y. Cty. 2021)
Juarez v. USA Roofing Co. Corp.,
2017 NY Slip Op(U) 31239, 2017 N.Y. Misc. LEXIS 2246 (Sup. Ct. N.Y. Cty. 2017)
Krebs v. Canyon Club, Inc.,
880 N.Y.S.2d 873 (Sup. Ct. Westchester Cty. 2009) 00.0... ccc ccscesssseseesseseesseeneseseeeseeeseeee 6,8
Kudinovy v. Kel-Tech Const. Inc.,
65 A.D.3d 481 (1st Dep’t 2009) oo... cece cece eeesesneesseensseseesssesssseseessseseassesseeeseeesseeneeeaee 3,5
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Kurovskaya v. Project OHR,
2020 N.Y. Slip Op 33977(U) (Sup. Ct. N.Y. Cty. 2020) aff'd 194 A.D.3d 612 (Ist
Dep’t. 2021)
Maor v. Serenuse, Inc.,
2018 NY Slip Op 32535(U), 2018 N.Y. Misc. LEXIS 4471 (Sup. Ct. Bronx Cty. 2018)
Pajaczek v. Cema Const. Corp.,
859 N.Y.S.2d 897, 2008 N.Y. Misc. LEXIS 701 (Sup. Ct. N.Y. Cty. 2008)... eee 2,6,7
Pesantez v. Boyle Envtl. Servs., Inc.,
251 A.D.2d 11 (Ist Dep’t 1998)
Pludeman v. N. Leasing Sys., Inc.,
74 A.D.3d 420 (Ist Dep’t 2010) oo... ceeeceeceeee cesses nessseesssessessscsssssseessseseassessescsneesseeneeeeee 3,5
Pruitt v. Rockefeller Ctr. Props., Inc.,
167 A.D.2d 14 (Ist Dep't 1991) o.oo eeeeeeseseesssessseseesssesessseeseseseessscesesesneesseeeeeseeeees 2,7
Sperry v. Crompton Corp.,
8 N.Y.3d 204 (2007)
Stecko v. RLI Ins. Co.,
121 A.D.3d 542 (1st Dep’t 2014)
Super Glue Corp. v. Avis Rent-A-Car Sy: Inc.,
132 A.D.2d 604 (2d Dep’t 1987)...
Weinberg v Hertz Corp.,
116 A.D.2d 1 (1st Dep’t 1986), aff’d 69 N.Y.2d 979 (1987)
Weinstein v. Jenny Craig Operations, Inc.,
981 N.Y.S.2d 639 (Sup. Ct. N.Y. Cty. 2013) ..ceccececceeeseeseeesesssssseesssessesssesesesnesseeesesee 2,3
Statutes
CPLR
§ 901... eeceeceeccec cece eseeeseeeeseseeseeeseessseeeesseesseeseeessessssssessssesssesseeasscsesesscessscseeesseeeeeesee 1,3,6,9
CPLR § 901(2) ceessssssssssssessssssnssssennssssssnsesseusssssnuesssniusessenusesssiesesinnssssinnessenunesesinneeeseeee 1,2
CPLR § 901(a)(1)
CPLR § 901 (2)(2) esccesssssssssssnssssssnssssssnsessetussssssusessstusessenusesssnnesssinnnsesiunesssnnnesesssunsseeeee 4,5
CPLR § 901 (a)(3) esecessssssessssssssssssesssssenssnusenssnsesssnusenssnsensssinnssinnesssnuunnesiuieesseneneseneenes 7
CPLR § 901(a)(4)
CPLR § 901(a)(5)
CPLR § 901(b)
CPLR § 902....0.ececcececeesecesseseseeseseeseseessseseesssesssesseesssesssessesssesssassesusassecisscsesesseeasseseeasseeeeseseeetes 1, 6,9
3
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CPLR § 902(1)
CPLR § 902(2)
CPLR § 902(3)
CPLR § 902(4)
CPLR § 902(5).... 10
CRL
§ 11
New York Constitution Article 1, §5
New York Constitution Article 1, §6
Treatises
2 Weinstein, Korn & Miller,
N.Y. Civ. Practice, § 901.09
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INTRODUCTION
Plaintiffs Sharok Jacobi and Chedva Benelyahou (“Plaintiffs”) will move this Court, on a
date and time the Court will determine, for an Order certifying a class of all persons who were
issued violations under Defendant Village of Saddle Rock’s (“Defendant” or “Village”) photo
enforcement ticketing program (the “Program”).
FACTUAL BACKGROUND
Plaintiffs filed the Complaint on June 16, 2023, and pleaded causes of action for alleged
violations of New York Civil Rights Law (“CRL”) § 11, Article 1, §§ 5-6 of the New York State
Constitution, and unjust enrichment. NYSCEF No. 2, Complaint (“Compl.”) {{[ 58-67.
On October 6, 2023, Defendant filed its Answer. NYSCEF No. 4. The parties then engaged
in discovery. NYSCEF Nos. 4-6.
Now, “Within sixty days after the time to serve a responsive pleading has expired for all
persons named as defendants in an action brought as a class action, [] [P]laintiff[s] []move for an
[O]rder to determine whether it is to be so maintained.” CPLR § 902.
Plaintiffs now seek to certify a class of persons who were issued violations under
Defendant’s Program.
LEGAL STANDARDS
To obtain class certification, a plaintiff must satisfy the five statutory requirements of
CPLR § 901 and the factors in CPLR § 902. See, e.g., Canavan v. Chase Manhattan Bank, 234
A.D.2d 493, 494 (2d Dep’t 1996).
CPLR § 901(a) provides that one or more members of a class may sue as representative
parties on behalf of a class if:
1 The class is so numerous that joinder of all members whether otherwise required or
permitted is impracticable [“numerosity”];
1
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There are questions of law or fact common to the class which predominate over any
questions affecting only individual members [“predominance”];
The claims or defenses of the representative parties are typical of the claims or
defenses of the class [“typicality”];
The representative parties will fairly and adequately protect the interests of the class
[“adequacy”]; and
A class action is superior to other available methods for the fair and efficient
adjudication of the controversy [“superiority”].
The Appellate Courts “have repeatedly held that the class action statute should be liberally
construed. any error, if there is to be one, should be...in favor of allowing the class action.” Pruitt
v. Rockefeller Ctr. Props., Inc., 167 A.D.2d 14, 21 (1st Dep’t 1991); see also Weinstein v. Jenny
Craig Operations, Inc., 981 N.Y .S.2d 639, 639 (Sup. Ct. N.Y. Cty. 2013); Pajaczek v. Cema Const.
Corp., 859 N.Y.S.2d 897, 2008 N.Y. Misc. LEXIS 701, at *5-6 (Sup. Ct. N.Y. Cty. 2008) (citing
Brandon vy. Chefetz, 106 A.D.2d 162 (Ist Dep’t 1985).
In contrast to “the ‘rigorous analysis’ standard utilized by the federal courts in addressing
class certification motions under [Fed. R. Civ. P. 23](b) [], CPLR § 901(a) ‘should be broadly
construed’ [because] ‘the Legislature intended article 9 to be a liberal substitute for the narrow
class action legislation which preceded it.’” Stecko v. RLI Ins. Co., 121 A.D.3d 542, 543 (1st Dep’t
2014) (quoting City of New York v. Maul, 14 N.Y .3d 499, 509 (2010).
“When considering a motion for class certification, the facts as alleged in the complaint are
accepted as true.” Dabrowski v. ABAX Inc., 2010 NY Slip Op 31981(U), 2010 N.Y. Misc. LEXIS
3507, at *3 (Sup. Ct. N.Y. Cty. 2010), aff'd 84 A.D.3d 633 (1st Dep’t 2011).
“While it is appropriate in determining whether an action should proceed as a class action
2
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to consider whether a claim has merit, this inquiry is limited, and such threshold determination is
not intended to be a substitute for summary judgment or trial.” Kudinov v. Kel-Tech Const. Inc.,
65 A.D.3d 481, 482 (1st Dep’t 2009); see Weinstein, 981 N.Y.S.2d at 639 (“The court finds
[defendants’] painstaking assaults on the merits of plaintiffs’ case to be futile.”).
“Class action certification is thus appropriate if on the surface there appears to be a cause
of action which is not a sham.” Pludeman v. N. Leasing Sys., Inc., 74 A.D.3d 420, 422 (1st Dep’t
2010) (citing Brandon, 106 A.D.2d at 168).
ARGUMENT
I REQUIREMENTS OF CPLR § 901 ARE SATISFIED
Plaintiffs have satisfied the requirements of CPLR § 901, such that class certification
should be granted.
A Numerosity Established because Joinder is Impracticable
No “mechanical test or set quantity of prospective class members [] must exist” to conclude
that CPLR § 901(a)(1) is satisfied. Juarez v. USA Roofing Co. Corp., 2017 NY Slip Op(U) 31239,
2017 N.Y. Misc. LEXIS 2246, at *8 (Sup. Ct. N.Y. Cty. 2017).
“Each case depends upon the particular circumstances surrounding the proposed class and
the court should consider the reasonable inferences and common-sense assumptions from the facts
before it.” Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 96 (2d Dep’t 1980).
Though courts have generally held that impracticability of joinder is presumed at forty or
more class members, this is not a minimum. Maor v. Serenuse, Inc., 2018 NY Slip Op 32535(U),
2018 N.Y. Misc. LEXIS 4471, at *7 (Sup. Ct. Bronx Cty. 2018) (finding certification warranted
whether there were 28 or 46 putative class members).
“There is also no requirement that the exact number of class members be immediately
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known.” Cannon v. Equitable Life Assurance Soc’y, 433 N.Y.S.2d 378, 383 (Sup. Ct. Queens Cty.
1980).
As the New York Court of Appeals recognized, “the legislature contemplated classes
involving as few as 18 members.” Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 399
(2014).
Through discovery, Plaintiffs learned that over 8,000 vehicles pass through the relevant
intersections per month. Even accepting Defendant’s assertions that “up to 95% com[e] to a full
stop” because of the cameras, 400 vehicles are therefore subject to the alleged unlawful fines and
penalties.
The number of residents in the Village of Saddle Rock is close to 1,000, while the larger
Great Neck Peninsula has over 40,000. Based on Defendant’s own records, the number of vehicles
subject to unlawful fines and penalties each month appears to approach one-quarter of the area’s
population, without accounting for the many citizens who do not drive.
Moreover, because the cameras were installed without authorization, Plaintiffs seek to
vindicate the rights of all citizens who were subjected to this program, which covers those who did
not receive fines and penalties.
Finally, the precise number of fines and penalties issued during the class period is in
Defendant’s control, which will be used to accurately determine the size of the class. Gross v.
Ticketmaster LLC, 798 N.Y.S.2d 709 (Sup. Ct., N.Y. Cty. 2004)
These facts show that CPLR § 901(a)(1) is satisfied.
B Common Questions of Law and Fact Predominate Over Individual Issues
“The fundamental issue under CPLR § 901(a)(2) is whether the proposed class action
asserts a common legal grievance, i.e., whether the common issues predominate over or outweigh
4
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the subordinate issues that pertain to individual members of the class.” Geiger v. Amer. Tobacco
Co., 696 N.Y.S.2d 345, 351 (Sup. Ct. Queens Cty. 1999).
While CPLR § 901(a)(2) “requires the common questions of law or fact [to] predominate
over those of individual class members [,] The rule, ‘requires predominance not identity or
unanimity among class members.” Hess v. EDR Assets LLC, 2021 N.Y. Slip Op 30739(U) at *4
(Sup. Ct. N.Y. Cty. 2021) quoting Pludeman, 74 A.D.3d at 422.
The essential questions of law and fact common to all class members that will predominate
include whether Defendant’s Program (1) assessed excessive and/or unlawful fines, (2) was
contrary to law and (3) caused it to be unjustly enriched at the expense of the Class.
Whether Plaintiffs did not pay the fines while other class members did “will not serve as a
bar to certifying a class where common questions of law or fact predominate across all inquiries.”
Hess, 2021 N.Y. Slip Op 30739(U) at *4
What matters is “whether a class action promotes uniform decisions for similarly situated
»
persons as well as the economy of time, effort, and expense, as compared to individual actions,
which it does. Hess, 2021 N.Y. Slip Op 30739(U) at *4 citing Kudinov, 65 A.D.3d at 482.
All members of the putative class were impacted by the unlawful ticketing program, such
that “Specialized proof will be largely unnecessary to resolve these common allegations.” Maul,
14.N.Y.3d at 513; see also Pludeman, 74 A.D.3d at 420(rejecting a defendant’s similar claim that
commonality was lacking).
Whether common questions of law or fact predominate “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.” Friar,
78 A.D.2d at 97.
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This standard requires “predominance, not identity or unanimity, among class members”
and has been satisfied in other scenarios where, like here, a defendant uses a common practice to
detrimentally effect countless individuals, and the legality of that practice is called into question.
Krebs v. Canyon Club, Inc., 880 N.Y.S.2d 873, 873 (Sup. Ct. Westchester Cty. 2009) (quoting
Friar, 78 A.D.2d at 98).
In determining whether the claims of Plaintiffs and Class Members share common
questions of law or fact, “factual identity between the[ir] [] claim[s] and those of the class [they]
seek[] to represent is not necessary if these claims arise, at least in part, from a common wrong or
set of wrongs regardless of individual factors.” Pajaczek, 2008 N.Y. Misc. LEXIS 701, at * 7.
“The statute clearly envisions authorization of class actions even when there are subsidiary
questions of law or fact not common to the class.” Krebs, 880 N.Y.S.2d at 873 citing Weinberg v
Hertz Corp., 116 A.D.2d 1, 6, (Ist Dep’t 1986), aff'd 69 N.Y.2d 979 (1987).
Plaintiffs do not need “affidavits or any evidence that a common policy or plan applied to
the putative class” to obtain certification. Kurovskaya v. Project OHR, 2020 N.Y. Slip Op
33977(U) (Sup. Ct. N.Y. Cty. 2020) aff'd 194 A.D.3d 612 (1st Dep’t. 2021).
Cc Claims of Plaintiffs are Typical to Claims of Class
The typicality requirement is satisfied because Plaintiffs’ claims “derive from the same
practice or conduct that gave rise to the remaining claims of the class members and is based upon
the same legal theory.” Friar, 78 A.D.2d at 98; Pajaczek, 2008 N.Y. Misc. LEXIS 701, at *8;
Galdamez v. Biordi Construction Corp., 50 A.D.3d 357, 357-58 (1st Dep’t 2008) (affirming class
certification under CPLR §§ 901 and 902).
The essence of typicality is that the representative party must have an individual cause of
action and that the representative’s interest must be closely identified with that of the class
6
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members. See 2 Weinstein, Korn & Miller, N.Y. Civ. Practice, § 901.09.
To demonstrate typicality, “it is not necessary that the claims of the named plaintiff be
identical to those of the class.” Super Glue Corp. v. Avis Rent-A-Car Sys., Inc., 132 A.D.2d 604,
607 (2d Dep’t 1987).
Nonetheless, Plaintiffs’ claims are typical of the claims of the Class because their damages
arose from the same course of conduct and are based on the same legal theory. Friar, 78 A.D.2d
at 98; Galdamez, 50 A.D.3d 357, 357.
Therefore, Plaintiffs have satisfied the “typicality” requirement of CPLR § 901(a)(3).
D. Plaintiffs and Plaintiffs’ Counsel Will Fairly and Adequately Protect Interests of
Class
Adequacy of representation requires that “counsel for the named Plaintiffs be competent
and that the interests of the named Plaintiffs and the members of the class not be adverse.”
Pajaczek, 2008 N.Y. Misc. LEXIS 701, at *9-10 (citing Pruitt, 167 A.D.2d at 24).
Plaintiffs seek the same relief as the Class Members, to end the Program and recover their
actual damages. Neither Plaintiffs nor Plaintiffs’ Counsel have any interest antagonistic to the
vigorous pursuit of the Class’s claims against Defendant.
Plaintiffs submit that Plaintiff's Counsel is qualified in handling class actions, considering
their work performed in investigating their claims and pursuing this litigation, counsel’s
experience and knowledge of the applicable law, and the resources counsel has already committed
and will commit to this litigation. Exhibit “A,” Firm Resume.
Based on the foregoing, Plaintiffs have satisfied the “adequacy of representation”
requirement of CPLR § 901(a)(4).
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E Class Action is Superior to Other Available Methods to Fairly and Efficiently
Resolve the Issues
In accordance with CPLR § 901(a)(5), courts have concluded that a class action is “best
method of adjudicating” claims of affected persons where the amount in question is too small to
litigate individually. Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11, 12 (1st Dep’t 1998);
Krebs, 880 N.Y.S.2d at 873; Dabrowski v. ABAX Inc., 84 A.D.3d 633, 635 (Ist Dep’t 2011)
(affirming certification because class action was “superior to the prosecution of individualized
claims” based in part on “litigation costs...and the modest damages to be recovered by each
individual [] if anything.”)
Should this action not proceed on a class-wide basis, “The alternative of requiring dozens
of individual actions [would be] ineffective and inefficient method, which could lead to conflicting
determinations and the imposition of different and, perhaps, incompatible standards upon
[D]efendant[].” Galdamez v. Biordi Const. Corp., 831 N.Y.S.2d 347, 347 (Sup. Ct. N.Y. Cty.
2006).
Subjecting the Court, Defendant and individual litigants to the expense and time of multiple
trials would be wasteful, as “New York [] deem[s] one action a ‘superior’ way to adjudicate
multiple claims” of the type presented here. Friar, 78 A.D.2d at 100.
Moreover, Plaintiffs’ Counsel’s investigation has revealed that many class members are
reluctant to come forward against the village where they reside, believing they would be subject
to retaliation.
Therefore, few individuals could even contemplate proceeding with this litigation in any
context other than through their participation in a class action, given the expense and burden that
such litigation would entail, particularly when many of the putative class members have suffered
arelatively small economic loss.
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Accordingly, a class action is superior to any alternative means of obtaining relief for the
members of the class.
F, CPLR § 901(b) Ina licable
CPLR § 901(b) does not apply because Plaintiffs’ causes of action are not based on
statute creating or imposing a penalty, or a minimum measure of recovery.”
Nothing in CPLR § 901(b) precludes “A statutory class action for actual damages,” which
is what Plaintiffs seek to recover. Sperry v. Crompton Corp., 8 N.Y.3d 204, 211 (2007) (citing
legislative history of CPLR § 901(b)).
IL. CONSIDERATION OF CPLR § 902 SUPPORTS CLASS CERTIFICATION
The same considerations which support class certification under CPLR § 901 apply under
CPLR § 902.
First, with respect to “the interest of members of the class in individually controlling the
prosecution. ..of separate actions,” to Plaintiffs’ Counsel’s knowledge, no other actions have been
filed anywhere about this issue. CPLR § 902(1).
Second, the number of Class members is a testament to both “the impracticability and
inefficiency of prosecuting or defending separate actions.” CPLR § 902(2).
Third, the “extent and nature of any litigation concerning the controversy already
commenced by or against members of the [C]lass” supports certification, because no litigation
about these issues exists. CPLR § 902(3).
Fourth, there is a “desirability [] of concentrating the litigation of the[se] claim[s] in th[is]
particular forum,” because almost all class members reside in Nassau County. CPLR § 902(4).
Finally, there are “[few] difficulties likely to be encountered in the management of [this]
class action,” especially when compared to complications of managing multiple actions. CPLR §
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902(5).
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant their Motion.
Dated: December 11, 2023
Respectfully submitted,
/s/ Spencer Sheehan
Sheehan & Associates, P.C.
60 Cuttermill Rd Ste 412
Great Neck NY 11021
(516) 268-7080
spencer @spencersheehan.com
10
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Certificate of Service
Icertify that on December 11, 2023, I served and/or transmitted the foregoing by the method below
to the persons or entities indicated, at their last known address of record (blank where not
applicable).
NYSCEF First-Class Email Fax
Mail
Defendant’s Counsel oO
Plaintiff’s Counsel oO oO
Courtesy Copy to Court oO
/s/ Spencer Sheehan
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INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF 12/11/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Sharok Jacobi and Chedva_ Benelyahou, Index No. 609519/2023 individually and on behalf of all others similarly situated, Plaintiffs, - against - Village of Saddle Rock, Defendant Memorandum of Law in Support of Plaintiffs’ Motion for Class Certification 1 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 TABLE OF CONTENTS TABLE OF CONTENTS TABLE OF AUTHORITIES INTRODUCTION FACTUAL BACKGROUND LEGAL STANDARDS ARGUMENT I REQUIREMENTS OF CPLR § 901 ARE SATISFIED A Numerosity Established because Joinder is Impracticable . B Common Questio of Law and Fact Predominate Over Individual TsSueS.......c.cceeee Claims of Plaintiffs are Typical to Claims of Class.......cccccceeseeseeeeeeeeeeeees 6 Plaintiffs and Plaintiffs’ Counsel Will Fairly and Adequately Protect Interests Of Class .......cccecceeceeeseeeseseeseseessseseessseesssesessssessssssesessesesasseeaseeseeeseeeneeeee 7 Class Action is Superior to Other Available Methods to Fairly and Efficiently Resolve the Issues ..........c.cccececeseseeseseesesesesesesescseecsescscecscssesseseeseeseeeass 8 F. CPLR § 901(b) Inapplicable IL. CONSIDERATION OF CPLR § 902 SUPPORTS CLASS CERTIFICATION CONCLUSION 10 2 of 16 INDEX NO. 609519/2023 FILED: NASSAU COUNTY CLERK 12711/2023 10:58 PM NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 TABLE OF AUTHORITIES Cases Borden y. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382 (2014)... Brandon v. Chefetz, 106 A.D.2d 162 (Ist Dep't 1985) oo. e ec eeeeeseseescsesseseseesesessssseesesesesssceeseseeasseeeeeseeeees 2,3 Cannon v. Equitable Life Assurance Soc’y, 433 N.Y.S.2d 378 (Sup. Ct. Queens Cty. 1980) City of New York v. Maul, 14. N.Y.3d 499 (2010) ....eceecesesssseseeseseessseseessseesssssessssesscseseessscsesesseesssescsesceeeseseeesseeeeeseeeees 2,5 Dabrowski v. ABAX Inc., 2010 NY Slip Op 31981(U), 2010 N.Y. Misc. LEXIS 3507 (Sup. Ct. N.Y. Cty. 2010), aff'd 84 A.D.3d 633 (1st Dep’t 2011) Dabrowski v. ABAX Inc., 84 A.D.3d 633 (Ist Dep’t 2011) Friar v. Vanguard Holding Corp., 78 A.D.2d 83 (2d Dep’t 1980). passim Galdamez v. Biordi Const. Corp., 831 N.Y.S.2d 347 (Sup. Ct. N.Y. Cty. 2006) Galdamez v. Biordi Construction Corp., 50 A.D.3d 357 (Ist Dep’t 2008)... 6,7 Geiger v. Amer. Tobacco Co., 696 N.Y.S.2d 345 (Sup. Ct. Queens Cty. 1999) Gross v. Ticketmaster LLC, 798 N.Y.S.2d 709 (Sup. Ct., N.Y. Cty. 2004) Hess v. EDR Assets LLC, 2021 N.Y. Slip Op 30739(U) (Sup. Ct. N.Y. Cty. 2021) Juarez v. USA Roofing Co. Corp., 2017 NY Slip Op(U) 31239, 2017 N.Y. Misc. LEXIS 2246 (Sup. Ct. N.Y. Cty. 2017) Krebs v. Canyon Club, Inc., 880 N.Y.S.2d 873 (Sup. Ct. Westchester Cty. 2009) 00.0... ccc ccscesssseseesseseesseeneseseeeseeeseeee 6,8 Kudinovy v. Kel-Tech Const. Inc., 65 A.D.3d 481 (1st Dep’t 2009) oo... cece cece eeesesneesseensseseesssesssseseessseseassesseeeseeesseeneeeaee 3,5 3 of 16 INDEX NO. 609519/2023 FILED: NASSAU COUNTY CLERK 12711/2023 10:58 PM NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 Kurovskaya v. Project OHR, 2020 N.Y. Slip Op 33977(U) (Sup. Ct. N.Y. Cty. 2020) aff'd 194 A.D.3d 612 (Ist Dep’t. 2021) Maor v. Serenuse, Inc., 2018 NY Slip Op 32535(U), 2018 N.Y. Misc. LEXIS 4471 (Sup. Ct. Bronx Cty. 2018) Pajaczek v. Cema Const. Corp., 859 N.Y.S.2d 897, 2008 N.Y. Misc. LEXIS 701 (Sup. Ct. N.Y. Cty. 2008)... eee 2,6,7 Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11 (Ist Dep’t 1998) Pludeman v. N. Leasing Sys., Inc., 74 A.D.3d 420 (Ist Dep’t 2010) oo... ceeeceeceeee cesses nessseesssessessscsssssseessseseassessescsneesseeneeeeee 3,5 Pruitt v. Rockefeller Ctr. Props., Inc., 167 A.D.2d 14 (Ist Dep't 1991) o.oo eeeeeeseseesssessseseesssesessseeseseseessscesesesneesseeeeeseeeees 2,7 Sperry v. Crompton Corp., 8 N.Y.3d 204 (2007) Stecko v. RLI Ins. Co., 121 A.D.3d 542 (1st Dep’t 2014) Super Glue Corp. v. Avis Rent-A-Car Sy: Inc., 132 A.D.2d 604 (2d Dep’t 1987)... Weinberg v Hertz Corp., 116 A.D.2d 1 (1st Dep’t 1986), aff’d 69 N.Y.2d 979 (1987) Weinstein v. Jenny Craig Operations, Inc., 981 N.Y.S.2d 639 (Sup. Ct. N.Y. Cty. 2013) ..ceccececceeeseeseeesesssssseesssessesssesesesnesseeesesee 2,3 Statutes CPLR § 901... eeceeceeccec cece eseeeseeeeseseeseeeseessseeeesseesseeseeessessssssessssesssesseeasscsesesscessscseeesseeeeeesee 1,3,6,9 CPLR § 901(2) ceessssssssssssessssssnssssennssssssnsesseusssssnuesssniusessenusesssiesesinnssssinnessenunesesinneeeseeee 1,2 CPLR § 901(a)(1) CPLR § 901 (2)(2) esccesssssssssssnssssssnssssssnsessetussssssusessstusessenusesssnnesssinnnsesiunesssnnnesesssunsseeeee 4,5 CPLR § 901 (a)(3) esecessssssessssssssssssesssssenssnusenssnsesssnusenssnsensssinnssinnesssnuunnesiuieesseneneseneenes 7 CPLR § 901(a)(4) CPLR § 901(a)(5) CPLR § 901(b) CPLR § 902....0.ececcececeesecesseseseeseseeseseessseseesssesssesseesssesssessesssesssassesusassecisscsesesseeasseseeasseeeeseseeetes 1, 6,9 3 4 of 16 INDEX NO. 609519/2023 FILED: NASSAU COUNTY CLERK 12711/2023 10:58 PM NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 CPLR § 902(1) CPLR § 902(2) CPLR § 902(3) CPLR § 902(4) CPLR § 902(5).... 10 CRL § 11 New York Constitution Article 1, §5 New York Constitution Article 1, §6 Treatises 2 Weinstein, Korn & Miller, N.Y. Civ. Practice, § 901.09 5 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 INTRODUCTION Plaintiffs Sharok Jacobi and Chedva Benelyahou (“Plaintiffs”) will move this Court, on a date and time the Court will determine, for an Order certifying a class of all persons who were issued violations under Defendant Village of Saddle Rock’s (“Defendant” or “Village”) photo enforcement ticketing program (the “Program”). FACTUAL BACKGROUND Plaintiffs filed the Complaint on June 16, 2023, and pleaded causes of action for alleged violations of New York Civil Rights Law (“CRL”) § 11, Article 1, §§ 5-6 of the New York State Constitution, and unjust enrichment. NYSCEF No. 2, Complaint (“Compl.”) {{[ 58-67. On October 6, 2023, Defendant filed its Answer. NYSCEF No. 4. The parties then engaged in discovery. NYSCEF Nos. 4-6. Now, “Within sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action, [] [P]laintiff[s] []move for an [O]rder to determine whether it is to be so maintained.” CPLR § 902. Plaintiffs now seek to certify a class of persons who were issued violations under Defendant’s Program. LEGAL STANDARDS To obtain class certification, a plaintiff must satisfy the five statutory requirements of CPLR § 901 and the factors in CPLR § 902. See, e.g., Canavan v. Chase Manhattan Bank, 234 A.D.2d 493, 494 (2d Dep’t 1996). CPLR § 901(a) provides that one or more members of a class may sue as representative parties on behalf of a class if: 1 The class is so numerous that joinder of all members whether otherwise required or permitted is impracticable [“numerosity”]; 1 6 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 There are questions of law or fact common to the class which predominate over any questions affecting only individual members [“predominance”]; The claims or defenses of the representative parties are typical of the claims or defenses of the class [“typicality”]; The representative parties will fairly and adequately protect the interests of the class [“adequacy”]; and A class action is superior to other available methods for the fair and efficient adjudication of the controversy [“superiority”]. The Appellate Courts “have repeatedly held that the class action statute should be liberally construed. any error, if there is to be one, should be...in favor of allowing the class action.” Pruitt v. Rockefeller Ctr. Props., Inc., 167 A.D.2d 14, 21 (1st Dep’t 1991); see also Weinstein v. Jenny Craig Operations, Inc., 981 N.Y .S.2d 639, 639 (Sup. Ct. N.Y. Cty. 2013); Pajaczek v. Cema Const. Corp., 859 N.Y.S.2d 897, 2008 N.Y. Misc. LEXIS 701, at *5-6 (Sup. Ct. N.Y. Cty. 2008) (citing Brandon vy. Chefetz, 106 A.D.2d 162 (Ist Dep’t 1985). In contrast to “the ‘rigorous analysis’ standard utilized by the federal courts in addressing class certification motions under [Fed. R. Civ. P. 23](b) [], CPLR § 901(a) ‘should be broadly construed’ [because] ‘the Legislature intended article 9 to be a liberal substitute for the narrow class action legislation which preceded it.’” Stecko v. RLI Ins. Co., 121 A.D.3d 542, 543 (1st Dep’t 2014) (quoting City of New York v. Maul, 14 N.Y .3d 499, 509 (2010). “When considering a motion for class certification, the facts as alleged in the complaint are accepted as true.” Dabrowski v. ABAX Inc., 2010 NY Slip Op 31981(U), 2010 N.Y. Misc. LEXIS 3507, at *3 (Sup. Ct. N.Y. Cty. 2010), aff'd 84 A.D.3d 633 (1st Dep’t 2011). “While it is appropriate in determining whether an action should proceed as a class action 2 7 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 to consider whether a claim has merit, this inquiry is limited, and such threshold determination is not intended to be a substitute for summary judgment or trial.” Kudinov v. Kel-Tech Const. Inc., 65 A.D.3d 481, 482 (1st Dep’t 2009); see Weinstein, 981 N.Y.S.2d at 639 (“The court finds [defendants’] painstaking assaults on the merits of plaintiffs’ case to be futile.”). “Class action certification is thus appropriate if on the surface there appears to be a cause of action which is not a sham.” Pludeman v. N. Leasing Sys., Inc., 74 A.D.3d 420, 422 (1st Dep’t 2010) (citing Brandon, 106 A.D.2d at 168). ARGUMENT I REQUIREMENTS OF CPLR § 901 ARE SATISFIED Plaintiffs have satisfied the requirements of CPLR § 901, such that class certification should be granted. A Numerosity Established because Joinder is Impracticable No “mechanical test or set quantity of prospective class members [] must exist” to conclude that CPLR § 901(a)(1) is satisfied. Juarez v. USA Roofing Co. Corp., 2017 NY Slip Op(U) 31239, 2017 N.Y. Misc. LEXIS 2246, at *8 (Sup. Ct. N.Y. Cty. 2017). “Each case depends upon the particular circumstances surrounding the proposed class and the court should consider the reasonable inferences and common-sense assumptions from the facts before it.” Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 96 (2d Dep’t 1980). Though courts have generally held that impracticability of joinder is presumed at forty or more class members, this is not a minimum. Maor v. Serenuse, Inc., 2018 NY Slip Op 32535(U), 2018 N.Y. Misc. LEXIS 4471, at *7 (Sup. Ct. Bronx Cty. 2018) (finding certification warranted whether there were 28 or 46 putative class members). “There is also no requirement that the exact number of class members be immediately 8 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 known.” Cannon v. Equitable Life Assurance Soc’y, 433 N.Y.S.2d 378, 383 (Sup. Ct. Queens Cty. 1980). As the New York Court of Appeals recognized, “the legislature contemplated classes involving as few as 18 members.” Borden v. 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 399 (2014). Through discovery, Plaintiffs learned that over 8,000 vehicles pass through the relevant intersections per month. Even accepting Defendant’s assertions that “up to 95% com[e] to a full stop” because of the cameras, 400 vehicles are therefore subject to the alleged unlawful fines and penalties. The number of residents in the Village of Saddle Rock is close to 1,000, while the larger Great Neck Peninsula has over 40,000. Based on Defendant’s own records, the number of vehicles subject to unlawful fines and penalties each month appears to approach one-quarter of the area’s population, without accounting for the many citizens who do not drive. Moreover, because the cameras were installed without authorization, Plaintiffs seek to vindicate the rights of all citizens who were subjected to this program, which covers those who did not receive fines and penalties. Finally, the precise number of fines and penalties issued during the class period is in Defendant’s control, which will be used to accurately determine the size of the class. Gross v. Ticketmaster LLC, 798 N.Y.S.2d 709 (Sup. Ct., N.Y. Cty. 2004) These facts show that CPLR § 901(a)(1) is satisfied. B Common Questions of Law and Fact Predominate Over Individual Issues “The fundamental issue under CPLR § 901(a)(2) is whether the proposed class action asserts a common legal grievance, i.e., whether the common issues predominate over or outweigh 4 9 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 the subordinate issues that pertain to individual members of the class.” Geiger v. Amer. Tobacco Co., 696 N.Y.S.2d 345, 351 (Sup. Ct. Queens Cty. 1999). While CPLR § 901(a)(2) “requires the common questions of law or fact [to] predominate over those of individual class members [,] The rule, ‘requires predominance not identity or unanimity among class members.” Hess v. EDR Assets LLC, 2021 N.Y. Slip Op 30739(U) at *4 (Sup. Ct. N.Y. Cty. 2021) quoting Pludeman, 74 A.D.3d at 422. The essential questions of law and fact common to all class members that will predominate include whether Defendant’s Program (1) assessed excessive and/or unlawful fines, (2) was contrary to law and (3) caused it to be unjustly enriched at the expense of the Class. Whether Plaintiffs did not pay the fines while other class members did “will not serve as a bar to certifying a class where common questions of law or fact predominate across all inquiries.” Hess, 2021 N.Y. Slip Op 30739(U) at *4 What matters is “whether a class action promotes uniform decisions for similarly situated » persons as well as the economy of time, effort, and expense, as compared to individual actions, which it does. Hess, 2021 N.Y. Slip Op 30739(U) at *4 citing Kudinov, 65 A.D.3d at 482. All members of the putative class were impacted by the unlawful ticketing program, such that “Specialized proof will be largely unnecessary to resolve these common allegations.” Maul, 14.N.Y.3d at 513; see also Pludeman, 74 A.D.3d at 420(rejecting a defendant’s similar claim that commonality was lacking). Whether common questions of law or fact predominate “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.” Friar, 78 A.D.2d at 97. 10 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 This standard requires “predominance, not identity or unanimity, among class members” and has been satisfied in other scenarios where, like here, a defendant uses a common practice to detrimentally effect countless individuals, and the legality of that practice is called into question. Krebs v. Canyon Club, Inc., 880 N.Y.S.2d 873, 873 (Sup. Ct. Westchester Cty. 2009) (quoting Friar, 78 A.D.2d at 98). In determining whether the claims of Plaintiffs and Class Members share common questions of law or fact, “factual identity between the[ir] [] claim[s] and those of the class [they] seek[] to represent is not necessary if these claims arise, at least in part, from a common wrong or set of wrongs regardless of individual factors.” Pajaczek, 2008 N.Y. Misc. LEXIS 701, at * 7. “The statute clearly envisions authorization of class actions even when there are subsidiary questions of law or fact not common to the class.” Krebs, 880 N.Y.S.2d at 873 citing Weinberg v Hertz Corp., 116 A.D.2d 1, 6, (Ist Dep’t 1986), aff'd 69 N.Y.2d 979 (1987). Plaintiffs do not need “affidavits or any evidence that a common policy or plan applied to the putative class” to obtain certification. Kurovskaya v. Project OHR, 2020 N.Y. Slip Op 33977(U) (Sup. Ct. N.Y. Cty. 2020) aff'd 194 A.D.3d 612 (1st Dep’t. 2021). Cc Claims of Plaintiffs are Typical to Claims of Class The typicality requirement is satisfied because Plaintiffs’ claims “derive from the same practice or conduct that gave rise to the remaining claims of the class members and is based upon the same legal theory.” Friar, 78 A.D.2d at 98; Pajaczek, 2008 N.Y. Misc. LEXIS 701, at *8; Galdamez v. Biordi Construction Corp., 50 A.D.3d 357, 357-58 (1st Dep’t 2008) (affirming class certification under CPLR §§ 901 and 902). The essence of typicality is that the representative party must have an individual cause of action and that the representative’s interest must be closely identified with that of the class 6 11 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 members. See 2 Weinstein, Korn & Miller, N.Y. Civ. Practice, § 901.09. To demonstrate typicality, “it is not necessary that the claims of the named plaintiff be identical to those of the class.” Super Glue Corp. v. Avis Rent-A-Car Sys., Inc., 132 A.D.2d 604, 607 (2d Dep’t 1987). Nonetheless, Plaintiffs’ claims are typical of the claims of the Class because their damages arose from the same course of conduct and are based on the same legal theory. Friar, 78 A.D.2d at 98; Galdamez, 50 A.D.3d 357, 357. Therefore, Plaintiffs have satisfied the “typicality” requirement of CPLR § 901(a)(3). D. Plaintiffs and Plaintiffs’ Counsel Will Fairly and Adequately Protect Interests of Class Adequacy of representation requires that “counsel for the named Plaintiffs be competent and that the interests of the named Plaintiffs and the members of the class not be adverse.” Pajaczek, 2008 N.Y. Misc. LEXIS 701, at *9-10 (citing Pruitt, 167 A.D.2d at 24). Plaintiffs seek the same relief as the Class Members, to end the Program and recover their actual damages. Neither Plaintiffs nor Plaintiffs’ Counsel have any interest antagonistic to the vigorous pursuit of the Class’s claims against Defendant. Plaintiffs submit that Plaintiff's Counsel is qualified in handling class actions, considering their work performed in investigating their claims and pursuing this litigation, counsel’s experience and knowledge of the applicable law, and the resources counsel has already committed and will commit to this litigation. Exhibit “A,” Firm Resume. Based on the foregoing, Plaintiffs have satisfied the “adequacy of representation” requirement of CPLR § 901(a)(4). 12 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 E Class Action is Superior to Other Available Methods to Fairly and Efficiently Resolve the Issues In accordance with CPLR § 901(a)(5), courts have concluded that a class action is “best method of adjudicating” claims of affected persons where the amount in question is too small to litigate individually. Pesantez v. Boyle Envtl. Servs., Inc., 251 A.D.2d 11, 12 (1st Dep’t 1998); Krebs, 880 N.Y.S.2d at 873; Dabrowski v. ABAX Inc., 84 A.D.3d 633, 635 (Ist Dep’t 2011) (affirming certification because class action was “superior to the prosecution of individualized claims” based in part on “litigation costs...and the modest damages to be recovered by each individual [] if anything.”) Should this action not proceed on a class-wide basis, “The alternative of requiring dozens of individual actions [would be] ineffective and inefficient method, which could lead to conflicting determinations and the imposition of different and, perhaps, incompatible standards upon [D]efendant[].” Galdamez v. Biordi Const. Corp., 831 N.Y.S.2d 347, 347 (Sup. Ct. N.Y. Cty. 2006). Subjecting the Court, Defendant and individual litigants to the expense and time of multiple trials would be wasteful, as “New York [] deem[s] one action a ‘superior’ way to adjudicate multiple claims” of the type presented here. Friar, 78 A.D.2d at 100. Moreover, Plaintiffs’ Counsel’s investigation has revealed that many class members are reluctant to come forward against the village where they reside, believing they would be subject to retaliation. Therefore, few individuals could even contemplate proceeding with this litigation in any context other than through their participation in a class action, given the expense and burden that such litigation would entail, particularly when many of the putative class members have suffered arelatively small economic loss. 13 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 Accordingly, a class action is superior to any alternative means of obtaining relief for the members of the class. F, CPLR § 901(b) Ina licable CPLR § 901(b) does not apply because Plaintiffs’ causes of action are not based on statute creating or imposing a penalty, or a minimum measure of recovery.” Nothing in CPLR § 901(b) precludes “A statutory class action for actual damages,” which is what Plaintiffs seek to recover. Sperry v. Crompton Corp., 8 N.Y.3d 204, 211 (2007) (citing legislative history of CPLR § 901(b)). IL. CONSIDERATION OF CPLR § 902 SUPPORTS CLASS CERTIFICATION The same considerations which support class certification under CPLR § 901 apply under CPLR § 902. First, with respect to “the interest of members of the class in individually controlling the prosecution. ..of separate actions,” to Plaintiffs’ Counsel’s knowledge, no other actions have been filed anywhere about this issue. CPLR § 902(1). Second, the number of Class members is a testament to both “the impracticability and inefficiency of prosecuting or defending separate actions.” CPLR § 902(2). Third, the “extent and nature of any litigation concerning the controversy already commenced by or against members of the [C]lass” supports certification, because no litigation about these issues exists. CPLR § 902(3). Fourth, there is a “desirability [] of concentrating the litigation of the[se] claim[s] in th[is] particular forum,” because almost all class members reside in Nassau County. CPLR § 902(4). Finally, there are “[few] difficulties likely to be encountered in the management of [this] class action,” especially when compared to complications of managing multiple actions. CPLR § 14 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 902(5). CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant their Motion. Dated: December 11, 2023 Respectfully submitted, /s/ Spencer Sheehan Sheehan & Associates, P.C. 60 Cuttermill Rd Ste 412 Great Neck NY 11021 (516) 268-7080 spencer @spencersheehan.com 10 15 of 16 INDEX NO. 609519/2023 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 12/11/2023 Certificate of Service Icertify that on December 11, 2023, I served and/or transmitted the foregoing by the method below to the persons or entities indicated, at their last known address of record (blank where not applicable). NYSCEF First-Class Email Fax Mail Defendant’s Counsel oO Plaintiff’s Counsel oO oO Courtesy Copy to Court oO /s/ Spencer Sheehan 16 of 16