ARROYO and SPRINGER v. THE STATE OF NEW YORK, #2006-009-037, Claim No. 111362
and 111361, Motion No. M-71063 and M-71115
Claimants’ motions for consolidation and class action status were granted.
In the Matter of the Claim of PHYLLIS ARROYO and JOHN ARROYO, Individually and as Parents and Natural Guardians (“P/N/G”) of ALEX ARROYO, et al., and TIMOTHY SPRINGER and JACQUELINE SPRINGER, Individually and on behalf of their infant children, ADAM SPRINGER, KELLY SPRINGER and RACHEL SPRINGER
ARROYO and SPRINGER
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
111362 and 111361
M-71063 and M-71115
NICHOLAS V. MIDEY JR.
DREYER BOYAJIAN, LLP
BY: Donald W. Boyajian, Esq.,Of Counsel.
HON. ELIOT SPITZER
BY: Ed J.
June 29, 2006
See also (multicaptioned
In these two motions, claimants seek an order certifying each action as a class
action pursuant to Article 9 of the CPLR. In addition, in Motion No. M-71063
claimants seek an order consolidating their claim (Claim No. 111362) with Claim
No. 111361 pursuant to CPLR § 602(a). Upon request of all
parties, oral argument of these motions was scheduled and heard jointly, at
which time counsel for the claimants in Claim No. 111361 joined in the request
for consolidation of these two claims. Therefore, since identical relief is
sought in each motion, these motions will be considered together.
In addition to the oral argument, the Court has also read and reviewed the
following papers in connection with these motions:
Notice of Motion (M-71063) 1
Attorney Affidavit, with Exhibits A-E (M-71063) 2
Memorandum of Law in Support of Consolidation and Class Certification, with
Exhibit (M-71063) 3
Notice of Motion (M-71115) 4
Attorney Affidavit, with Claim attached (M-71115) 5
Memorandum of Law in Support of Motion seeking Class Certification
Affirmation in Opposition (M-71063/M-71115) 7
Memorandum of Law in Opposition (M-71063/M-71115) 8
Reply Affidavit, with Exhibits A-I (M-71063) 9
Reply Memorandum of Law (M-71063) 10
Claimants’ Reply Memorandum of Law (M-71115) 11
Correspondence dated March 30, 2006 (M-71063/M-71115) 12
These two claims are based upon events which occurred during the summer of 2005
at Seneca Lake State Park in Geneva, New York. The State of New York is the
owner and operator of this park, and during 2005 it operated and promoted a
“Spraypark” as one of the park’s main attractions. This
Spraypark, which first opened in 2002, consists of over 100 water jets that
spontaneously spray water over a hardtop surface.
In August, 2005, the Spraypark was closed by the State Department of Health,
after a finding that the Spraypark water was contaminated with cryptosporidium,
a highly contagious waterborne parasite. Exposure to this parasite may cause
cryptosporidiosis, with symptoms of abdominal cramping, diarrhea, nausea,
vomiting, dehydration, fatigue, fever, and loss of appetite.
Following the actions taken by the Department of Health, the two above
captioned claims were served upon the Attorney General and filed with the Clerk
of the Court of Claims, each alleging that numerous claimants had been exposed
to the cryptosporidium parasite and that they suffered the effects of
cryptosporidiosis. Each claim indicated that class action certification would
be sought pursuant to CPLR Article 9.
Each claim is based upon allegations of negligence, essentially alleging that
the State failed to adequately maintain or monitor the sanitary
conditions of the Spraypark water, and as a result allowed the water to become
contaminated with the cryptosporidium
As mentioned above, claimants now seek to consolidate these two actions and,
after consolidation, also request that their consolidated claim be certified as
a class action.
Pursuant to CPLR § 602, claims may be consolidated when the actions
involve a common question of law or fact. In this particular matter, each claim
is based upon the contamination of the water at the Spraypark, a confirmed fact,
and the claimants in each claim seek damages based upon their direct or indirect
exposure to the cryptosporidium parasite contained in this water. As a result,
this Court anticipates that liability of the State, if any, will be predicated
upon identical principles of law. Under these circumstances, the Court finds
that it is certainly appropriate for these two claims to be consolidated
pursuant to CPLR § 602, a determination which was not strenuously opposed
by the State.
Based on this conclusion, the Court will next address claimants’ request
that this consolidated action be certified as a class action under CPLR Article
9, a request that is vigorously contested by the State.
Although rare, the provisions of CPLR Article 9 have been held applicable to
claims pending in this Court (see Bertoldi v State of New York, 164 Misc
2d 581), and class action lawsuits have been recognized in the Court of Claims
(Brown v State of New York, 250 AD2d 314; St. Paul Fire and Marine
Ins. Co. v State of New York, 99 Misc 2d 140).
The more complicated issue, however, is to determine which potential claimants
may be eligible for inclusion in the class. Specifically, it is necessary to
reconcile the strict jurisdictional pleading requirements of Court of Claims Act
§ 11 with the provisions of CPLR Article 9 pertaining to class actions.
In Bertoldi (supra), former Judge Weisberg concluded that the
provisions of CPLR Article 9 superseded the pleading requirements of the Court
of Claims Act. However, in Brown (supra), former Judge Hanifin
concluded that any party included in a class action in the Court of Claims must
also satisfy the jurisdictional pleading requirements of Court of Claims Act
§ 11(a) (Brown v State of New York, Ct Cl, August 21, 1997 [Claim
No. 86979, Motion No. M-55344] [unreported decision]).
Since Judge Hanifin’s decision in Brown
, two of my esteemed and
learned colleagues have addressed the issue of class eligibility, and both have
agreed with Judge Hanifin that a person must be a named claimant in a filed
claim in order to be included as a member of a certified class in the Court of
Claims (Partridge v State of New York
, Claim No. 90710, Motion Nos.
M-58210, CM-58893, dated May 31, 2000, Patti, J., [UID
#2000-013-002]; Woolley v State of New
, Claim No. 103781, Motion Nos. M-63263, M-63409, dated July 2, 2001,
This Court agrees with the logic of Judge Hanifin, reinforced by the decisions
of Judge Patti and Judge Collins. Since the State conditioned its waiver of
immunity upon compliance with Court of Claims Act Article 2, cases, including
numerous appellate cases, have uniformly held that such compliance must be
strictly construed. As Judge Hanifin stated in Brown, “if the
legislature intended the filing and service requirements of the Court of Claims
Act to apply to all actions except class actions, it presumably would have
said so.” (Brown v State of New York, supra). This Court
therefore finds that to be included in any class action lawsuit, a claimant
must first satisfy the filing and service requirements of the Court of
As set forth in the motion papers, at least 663 individuals have been named as
claimants, or have served a notice of intention to file a claim, in the
Based on the foregoing, it is this Court’s determination that the
potential class, at this point in time, must be limited to these claimants.
As noted by this Court in a related Decision and Order (Springer v State of
New York, Ct Cl, November 17, 2005, Midey, J., Claim No. 111361, Motion Nos.
M-70742, CM-70755, [UID #2005-009-053]), however, this potential class, if
certified, may be expanded under certain conditions. In that Decision and
Order, this Court noted that the vast majority of potential claimants in this
claim will in all likelihood be infants. Pursuant to Court of Claims Act
§ 10(5), the claim of an infant is tolled until the disability is
removed, and it may then be presented within two years thereafter.
Additionally, any potential adult claimant who has not yet joined in either the
Springer or Arroyo claims may apply for late claim relief under
Court of Claims Act § 10(6). Such late claim relief may be granted in the
discretion of the Court, and as this Court stated in its prior Decision and
Order, the State would have a difficult time in successfully arguing against
such relief under these circumstances. Therefore, even though potential
eligibility for inclusion in the proposed class has been limited herein, the
Court anticipates that there may be additions to the class at a later date.
The Court must now therefore consider whether a class should be certified under
the facts and circumstances as presented herein.
CPLR § 901(a) sets forth the prerequisites for bringing a claim as a class
One or more members of a class may sue or be sued as representative parties on
behalf of all if:
the class is so numerous that joinder of all members, whether otherwise
required or permitted, is impracticable;
there are questions of law or fact common to the class which predominate over
any questions affecting only individual members;
the claims or defenses of the representative parties are typical of the claim
or defenses of the class;
the representative parties will fairly and adequately protect the interests of
the class; and
a class action is superior to other available methods for the fair and
efficient adjudication of the controversy.
In evaluating whether these criteria have been met and whether certification is
warranted, and pursuant to CPLR § 902, the Court must take into account,
among other relevant factors: The interest of members of the class in
individually controlling the prosecution or defense of separate actions;
The impracticability or inefficiency of prosecuting or defending separate
The extent and nature of any litigation concerning the controversy already
commenced by or against members of the class;
The desirability or undesirability of concentrating the litigation of the claim
in the particular forum;
The difficulties likely to be encountered in the management of a class
Although each of the five criteria set forth in CPLR § 901(a) must be
satisfied, these requirements should be construed liberally and in favor of
certification (Lauer v New York Telephone Co., 231 AD2d 126, 130).
Qualification for class action status is a determination vested in the sound
discretion of the Court (Matter of Froehlich v Toia, 71 AD2d 824;
Small v Lorillard Tobacco Co., 94 NY2d 43, 52).
There is no mechanical test to determine whether a putative class is so
numerous that it makes joinder impracticable (Friar v Vanguard Holding
Corp., 78 AD2d 83). In this particular case, however, and as previously
stated, more than 600 individuals have been listed as potential claimants in the
Springer and Arroyo claims which, in this Court’s opinion,
easily satisfies the numerosity requirement.
As previously discussed herein with respect to the issue of consolidation,
common questions of fact and law predominate. Even though the defendant
contends that individual claimants may have suffered different amounts of
damage, a variation in damage amounts among members of the class is insufficient
to defeat certification (Weinberg v Hertz Corp., 116 AD2d 1; Godwin
Realty Assocs. v CATV Enters., 275 AD2d 269).
To satisfy this requirement, a class representative must satisfy the Court that
he or she possesses the same interests as other members of the putative class.
In this case, the claims of the proposed class representatives (Springer
and Arroyo) allege that they suffered a cryptosporidium infection as a
result of exposure to that parasite after attending that Spraypark. The Court
finds that these claims are typical of the proposed class, since they arise from
the same event or course of conduct which forms the basis of the claims of other
class members, and liability is based upon the same allegations of negligence
against the State.
Adequacy of Representation
In this particular matter, the Court finds that the proposed class
representatives, Phyllis and John Arroyo, and Timothy and Jacqueline Springer,
in their respective individual capacities as well as on behalf of their infant
child or children, would provide fair and adequate representation to the other
members of the class.
Furthermore, it has been proposed in this motion that three law firms will act
as co-counsel in this claim. The Court has reviewed the qualifications of each
, and finds that they are competent
counsel, all with substantial experience in either food-borne or waterborne
illness claims, and all with extensive experience in class action litigation.
The Court finds that these three law firms, with their expertise, will
diligently represent the interests of the class.
The Court is aware that many of the individual claims may be reasonably modest,
and the ability to proceed as a class action will be the most cost effective
procedure for many of the individual claimants. Furthermore, it would be an
incredible waste of manpower for the Attorney General to defend each of the over
600 potential claims on an individual basis, and similarly it would certainly be
a waste of judicial resources to handle each of these claims individually.
Therefore, after consideration of the factors set forth in CPLR § 902, the
Court finds that certification of these claims as a class action is the
superior method to resolve the claims set forth herein.
Accordingly, for all of the reasons set forth above, claimants’ motions
for class certification pursuant to CPLR Article 9 are granted.
The Court notes that in their application, claimants had proposed that the
class, if certified, be defined to include subclasses of claimants, based upon
the extent of damages allegedly suffered by a particular claimant, and claimants
also suggested that such subclasses be further divided into subclasses of adults
and infants. Claimants have indicated, however, that upon certification, they
anticipate that a class definition may be mutually agreed upon by the parties,
including categories of subclasses.
Additionally, and subsequent to oral argument, claimants submitted a proposed
“Notice of Class Action” (see Attachment to Item 12), with such
notice including notification to potential members (infants and potential
applicants for late claim relief under Court of Claims Act § 10) who
have not yet appeared in this action.
Since counsel for the claimants anticipate that the parties may be able to
reach agreement on these issues (class definition, subclasses, and notice to
potential class members), this Court will not specifically address these matters
herein, but will provide the parties an opportunity to resolve such issues by
stipulation. This Court, therefore, intends to conference this claim in the
immediate future to address these matters and any other pre-trial issues,
as well as to implement a time frame for the completion of discovery.
Accordingly, based upon the foregoing, it is
ORDERED, that claimants’ motion to consolidate Claim No. 111361 and Claim
No. 111362 pursuant to CPLR § 602 is hereby GRANTED, and the consolidated
claim shall hereafter be captioned “TIMOTHY SPRINGER and JACQUELINE
SPRINGER, Individually and on behalf of their Infant Children, ADAM SPRINGER,
KELLY SPRINGER and RACHEL SPRINGER, and PHYLLIS ARROYO and JOHN ARROYO,
Individually and on behalf of their Children, ALEX ARROYO, CHEYENNE ARROYO, and
MCKENZIE ARROYO, and all other persons similarly situated (claimants) v THE
STATE OF NEW YORK (defendant), and this consolidated claim shall be designated
as Claim No. 111361; and it is further
ORDERED, that the Chief Clerk of the Court is hereby directed to transfer the
file contents of Claim No. 111362 to Claim No. 111361; and it is further
ORDERED, that claimants’ motions for certification of this consolidated
claim are hereby GRANTED, with the class consisting of those individuals who
have either been named as claimants or who have served a notice of intention to
file a claim in connection with either the Arroyo claim (Claim No. 111362) or
the Springer claim (Claim No. 111361); and it is further
ORDERED, that a conference will be conducted by the Court as soon as reasonably
practicable to address the issues of class definition, including possible
subclasses, the proper form of the “Notice of Class Action”, and
other discovery matters.
June 29, 2006
HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims
. The Court is aware of one other claim based
upon the cryptosporidium outbreak at the Spraypark, to wit: Dey v State of
New York & Ano.
, Claim No. 111576. This claim has also been assigned to
this Court pursuant to the Individual Assignment System for the Court of Claims
(§ 206.3 of the Uniform Rules for the Court of Claims). There is no
indication in the Dey
claim that class action certification is desired.
. The Arroyo
claim (Claim No. 111362)
also contains causes of action based upon strict liability and breach of
warranty (express and implied).
. Unpublished decisions and selected orders of
the Court of Claims are available via the Internet at
Although recognizing the availability of class action relief in the Court of
Claims, and after considering the issue of class eligibility, Judge Collins
determined that a class action was not appropriate in Woolley.
. Pursuant to Court of Claims Act §
10(3), in claims based upon allegations of negligence or unintentional torts, a
notice of intention, if served upon the Attorney General within 90 days of
accrual, extends a claimant’s right to serve and file a claim to two years
from the date of accrual. Therefore, any potential member of the proposed class
who has served a notice of intention has established, at this point in time,
compliance with the strict jurisdictional requirements of § 11 and may
be included in the class, if certified.
. In a prior Decision and Order, and after
reviewing their qualifications, this Court had previously approved the
application of William Marler, Esq., and Bruce T. Clark, Esq., to appear pro
with Underberg & Kessler, LLP, in connection with the
claim (Claim No. 111361) (see Decision and Order to Motion
No. M-71017, dated January 12, 2006 (UID #2006-009-001]).