New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2009-030-536, Claim No. 116468, Motion No. M-76545


Synopsis


Motion by inmate claimants for class certification pursuant to Article 9 Civil Practice Law and Rules denied. Did not meet burden of establishing requirements set forth in statute by merely reciting the statutory language.

Case Information

UID:
2009-030-536
Claimant(s):
JOHNATHAN JOHNSON, LESTER JONES and JASON BOTTARI
Claimant short name:
JOHNSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116468
Motion number(s):
M-76545
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JOHNATHAN JOHNSON, LESTER JONES and JASON BOTTARI, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 22, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimants’ motion for class


certification pursuant to Article 9 of the Civil Practice Law and Rules:

1,2 Notice of Motion; Claimant’s Affidavit in Support of Motion by Johnathan Johnson

  1. Affirmation in Opposition to Motion for Class Action Certification by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
4,5 Filed papers: Claim, Answer

In the underlying claim, verified only by Mr. Johnson, it is alleged that on and between January 16, 2009 and January 28, 2009 there was no heat or hot water in the special housing unit [SHU] of Downstate Correctional Facility where he was housed. He further alleges that he, as well as fellow inmates Lester Jones and Jason Bottari, were all denied sick call during the same time period, and all suffered physical and emotional injury as a result. It is also alleged that no mailboxes were readily available, nor were there headphones, purportedly required by facility directives.

In its answer, in addition to general denials, the defendant raises affirmative defenses related to various defects, including the lack of verification by either Mr. Jones or Mr. Bottari, the lack of a class certification from the court, and the failure to specify the damages claimed.

Mr. Johnson now moves for class certification pursuant to Article 9 of the Civil Practice Law and Rules. It is his burden to establish that the requirements for a class action are met, as set forth in Civil Practice Law and Rules §901. As to the requirements, the statute provides:
“a. 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 interest of the class; and

5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy . . .”

Other than reciting the statutory language, claimant has not discussed any of the foregoing requirements. [See Affidavit in Support by Johnathan Johnson]. As noted by defendant, it is the one seeking class certification who has the burden of establishing entitlement to class certification. To this end, more than conclusory allegations are necessary to gain such status as a class action. See Weitzenberg v Nassau County Dept. of Recreation & Parks, 29 AD3d 682, 683 (2d Dept 2006); see also Rallis v City of New York, 3 AD3d 525, 526 (2d Dept 2004); cf. Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129 (2d Dept 2008).

Based on the foregoing, Mr. Johnson’s motion is in all respects denied.



May 22, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims