NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8609
SPONSOR: Solages TITLE OF BILL:
An act to amend the civil practice law and rules, in relation to certif-
ication of class actions in cases involving governmental operations
PURPOSE:
The civil practice law and rules is amended to provide that a court may
not deny or withhold class certification solely because the action
involves governmental operations. This bill will not require the court
to certify a class. More importantly, this bill will specify once the
requirements of article 9 are satisfied, certification cannot be denied
solely because the case involves governmental operations.
SUMMARY:
Section 1. Amends section 902 of the civil practice law and rules, as
amended by chapter 474 of the laws of 1975.
Section 2. Sets the effective date
JUSTIFICATION:
In New York State, courts have generally been unwilling to certify a
class action when governmental operations are involved, reasoning that a
class action is not superior to other available methods to litigants.
The idea that the government is a special litigant is incorrect and
unjust - all New Yorkers should be able to stand equally before the
courts. Low-income and older New Yorkers are more likely to be a plain-
tiff in a class action suit due to a lack of resources to bring individ-
ual actions. Making it harder to bring justice when government agencies
act illegally only further enables them to continue harmful practices.
This legislation seeks to prevent a court from denying or withholding
class certification solely because a lawsuit involves governmental oper-
ations and allow all New Yorkers the opportunity to seek justice while
streamlining the litigation process in the courts.
Legal Services for New York City, a not-for-profit organization that
provides legal service for low-income people, supports this bill. The
courts reason that a class action is not superior to other available
methods (and thus fails to satisfy the requirement of § 901 (a) (5))
because the doctrine of (STARE DECISIS) provides adequate protection to
putative class members. (JONES V. BERMAN), 37 N.Y. 2d 42, 57 (1975). A
judgment in favor of the plaintiff may protect (SUBSEQUENT) or (FUTURE)
litigants under the doctrine of (STARE DECISIS) However, it will have no
effect whatsoever on persons who already have been and will be adversely
affected by an agency's policies from the date the action was filed
until a final determination. (SEE TINDELL V. KOCH), 154 A.D. 2nd 689,
565 N.Y.S. 2nd 789, 792 (1st Dep't 1991). (STARE DECISIS) applies only
after the final determination has been reached in an action that has not
been certified as a class action. Potential class members already
adversely affected by the agency's policy while the lawsuit is still
pending would obtain no relief at all, unless they commenced individual
actions before a final determination in order to preserve their rights
to the relief sought in a similar proceeding. (SEE ALSO LAMBOY V.
GROSS), 129 Misc. 2nd 564, 493 N.Y.S.2nd 709, (AFF'D) 126 A.D. 2nd 265,
513 N.Y.S. 2nd 393 (1st Dept 1987). Thus, class certification is superi-
or to this doctrine of (STARE DECISIS) to insure relief to members of a
proposed class who have already been or will be affected by a govern-
mental agency's policy before a final decision is issued in a lawsuit.
Moreover, it is often the case that persons who are similarly situated
to the plaintiff in a lawsuit already filed are individuals who are
low-income, elderly, or differently-abled, in which it would be increas-
ingly difficult to pursue actions. Class action is the best method to
protect these potential class members. Finally, even if a person were
able to obtain free legal representation for their individual claims,
the multiplicity of lawsuits seeking the identical relief can give rise
to inconsistent rulings by various state courts. This results in unnec-
essary expenditure of energy and judicial resources, forcing the legal
service bar, the Attorney General's office and the courts repeatedly to
litigate and decide the same issues of law. Despite the court's assump-
tion that governmental agencies follow the rules of law laid down by
court decisions, potential class members continually confront the reali-
ty that successes in non-class actions are applied only to the individ-
ually named plaintiffs rather than to all those similarly situated.
In sum, § 902 of the CPLR should be amended to specify that once the
requirements of the class action provisions of article 9 are satisfied,
certification cannot be denied on the grounds that because the case
involves a governmental agency, the court's decision will be applied to
all individuals similarly situated.
RACIAL JUSTICE IMPACT:
Government agencies that act illegally most severely harm low-income
communities of color. Further, individuals with less resources are more
likely to enter into a class action lawsuit because they are unable to
take individual action.
We have witnessed class action lawsuits go forward to address discrimi-
nation and low standards of care that impact the most vulnerable such as
in the cases of Merton Simpson v. Department of Civil Service, City of
New York v. Maul, Fleming v. Barnwell Nursing Home & Health Facilities,
and Brad H v. City of New York.
This bill will ensure that a large amount of New York's population will
be able to stand equally before the courts as a collective in instances
of injustice involving governmental operations.
GENDER JUSTICE IMPACT:
TBD.
PRIOR LEGISLATIVE HISTORY:
1995-96: A4933; passed Assembly.
1997-98: A3289; passed Assembly.
1999-2000: A3299; passed Assembly.
2001-02: A7700; passed Assembly.
2003-04: A5942; passed Assembly.
2005-06: A6929; passed Assembly.
2007-08: A4131; passed Assembly.
2009-10: A5019; passed Assembly.
2011-12: A2334; passed Assembly.
2013-14: A6871; advanced to third reading.
2015-16: A2191; advanced to third reading.
2017-18: A3181; referred to Codes.
2019-20: A2446; referred to Codes.
2021-22: A6501; passed Assembly.
FISCAL IMPLICATIONS: None.
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
8609
IN ASSEMBLY
January 12, 2024
___________
Introduced by M. of A. SOLAGES -- read once and referred to the Commit-
tee on Codes
AN ACT to amend the civil practice law and rules, in relation to certif-
ication of class actions in cases involving governmental operations
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Section 902 of the civil practice law and rules, as amended
2 by chapter 474 of the laws of 1975, is amended to read as follows:
3 § 902. Order allowing class action. Within sixty days after the time
4 to serve a responsive pleading has expired for all persons named as
5 defendants in an action brought as a class action, the plaintiff shall
6 move for an order to determine whether it is to be so maintained. An
7 order under this section may be conditional, and may be altered or
8 amended before the decision on the merits on the court's own motion or
9 on motion of the parties. The action may be maintained as a class
10 action only if the court finds that the prerequisites under section 901
11 have been satisfied. Among the matters which the court shall consider
12 in determining whether the action may proceed as a class action are:
13 1. the interest of members of the class in individually controlling
14 the prosecution or defense of separate actions;
15 2. the impracticability or inefficiency of prosecuting or defending
16 separate actions;
17 3. the extent and nature of any litigation concerning the controversy
18 already commenced by or against members of the class;
19 4. the desirability or undesirability of concentrating the litigation
20 of the claim in the particular forum;
21 5. the difficulties likely to be encountered in the management of a
22 class action.
23 However, a court shall not deny or withhold class certification solely
24 because the action involves governmental operations.
25 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD02064-01-3
