Thomas A. Dickerson. It has taken almost 40 years, but it now appears that a sea change is taking place regarding the certifiability of mass tort class actions involving property damage and/or personal injuries brought pursuant to Article 9 of the CPLR. Following the groundbreaking Court of Appeals decision in Borden v. 400 East 55 th Street, 24 N.Y. 3d 382 (2014), there has been an increase in the number of class actions brought and certified under CPLR Article 9 (see Dickerson, "New York State Class Actions in 2017," (N.Y.L.J. (11/22/2017); Dickerson, Article 9 of Weinstein Korn Miller, New York Civil Practice, LexisNexis (MB)(2018)). Of relevance here and as discussed below, the jurisprudence in the First Department (Roberts v. Ocean Prime, 148 A.D. 525 (1 st Dept. 2017) (flooding); Menna v. Maiden Lane Properties, 2018 NY Slip Op 30721(U)(N.Y. Sup. 2018)(flooding)) and the Fourth Department ( DeLuca v. Tonawanda Coke, 134 A.D. 3d 1534 (4th Dept. 2015) (air pollution) has evolved to become more favorable to certified classes seeking tort remedies for environmental harm. |

The 'DeLuca' Case

DeLuca is particularly instructive. In that case, the Fourth Department affirmed a decision of the Supreme Court certifying two classes of plaintiffs seeking damages caused by defendant's negligent release of chemicals into the atmosphere: One class sought damages for loss in property values, and the second sought damages for loss of quality of life. In affirming the Supreme Court's order granting class certification, the Appellate Division held that “there are common questions of law or fact whether defendants negligently discharged chemicals into the atmosphere and whether such negligent conduct caused decreases in property values or quality of life in the affected area.” DeLuca represents a sea change from the Fourth Department's 1979 decision in Wojciechowski v. Republic Steel, 67 A.D. 2d 830 (4 th Dept. 1979), which has been repeatedly relied upon by the courts in the last 40 years in denying certification of CPLR Article 9 mass tort class actions. Clearly, Wojciechowski is no longer persuasive authority. |

Misinterpreting Legislative History

Notwithstanding a clear mandate in the legislative history of CPLR Article 9 (“mass exposure to environmental offences”), mass tort class actions have, typically, not been certified by the Appellate Divisions until recently. Stated simply, the courts in New York state have rejected applying CPLR Article 9 to mass torts involving personal injuries and/or property damage in a manner consistent with the legislature's intent, whether based on theories, inter alia, of negligence, negligent or fraudulent misrepresentation, trespass, nuisance, strict products liability or a violation of New York State General Business Law 349 (GBL 349). (See Dickerson, "New York State Class Actions: Make It Work, Fulfill The Promise," Vol. 74.2 at 711-729 (2010), which details the disappointing history of Article 9 of the CPLR from its enactment in 1975 to 2010.) |

Air Pollution

In Wojciechowski, a class of homeowners sought damages for “discoloration” and “depreciation in value of their residences” caused by airborne “precipitator dust” emanating from the factories of several defendants in Buffalo, New York. In denying class certification, the Appellate Division held “that the two central issues pertaining to each residential property (i.e., whether any discoloration was caused by defendants' action on Jan. 28, 1977, and, if so, the extent of the damages resulting therefrom) are questions which require individual investigations and proof which must be decided separately with respect to each individual claim. ... Furthermore, it appears from plaintiffs' complaint that the class has not been and cannot be described with certainty.” In Evans v. City of Johnstown, 97 A.D. 2d 1 (3d Dept. 1983) , a class of residents sought “an injunction and monetary damages for alleged injuries arising from the construction, operation and maintenance of the municipal sewerage plant for the cities of Johnstown and Gloversville in Fulton County.” The Appellate Division noted the presence of some similar issues affecting “all members of the proposed class, i.e., matters relating to the design, construction, operation and maintenance of the sewerage plant, and to biological and chemical reactions caused by the alleged pollution or effluent from the plant.” The court, however, citing Wojciechowski, denied class certification because “whether a specific injury to property or person was caused by the sewerage plant and of the extent of any damages require individualized investigation, proof and determination.” And in Eisner v. City of New York, 118 Misc. 2d 672 (N.Y. Sup. 1983), a class of residents in the Chelsea section of Manhattan sought damages for personal injuries (“itching, rashes, eye irritation and respiratory difficulties”) and property damage caused by “allegedly toxic smoke and fumes” emanating from a “conflagration [which] lasted for several days and allegedly covered the area with a pall of thick, irritating smoke and noxious fumes.” In denying class certification the court noted that, “while the question of the city's negligence in connection with the fire would be common to the class, the more troublesome questions of causation and damages would still have to be adjudicated on a case-by-case basis even if class action status were granted ... no purpose would be served by treating the case as a class action.” |

Toxic Waste Dumps

In Askey v. Occidental Chemical, 102 A.D. 2d 130 (4 th Dept. 1984), a class of homeowners sought damages “for personal injuries and property damage caused by the alleged discharge of toxic substances from defendants' Hyde Park landfill in the town of Niagara, New York. ... The novel issue presented is whether those persons who have an increased risk of cancer, genetic damage and other illnesses by reason of their exposure to the toxic chemicals emanating from the landfill, but whose physical injuries are not evident, should be certified as a class for the purpose of determining their right to recover the costs of future medical monitoring services to diagnose warning signs of the development of diseases. The Hyde Park landfill is the successor chemical and waste disposal site to the defendants' Love Canal site. ... The defendants concede that between 1953 and 1974 an estimated 80,000 tons of 25 different chemical residues were deposited there. Plaintiffs allege that these residues have seeped into the ground and migrated from the site via a drainage channel known as the 'Bloody Run Creek' which flows north from the landfill, as well as through air dispersion of particulate matter, thus exposing area residents to cancer-causing agents. The landfill has been the subject of much litigation. ... These plaintiffs are alleging a broad range of more than 70 different illnesses and maladies attributable to their alleged exposure to the toxic chemicals.” Although the Askay court was receptive to a medical monitoring class action, the Appellate Division, nonetheless, affirmed the denial of class certification noting an absence of class identification. |

Water and Soil Contamination

In Aprea v. Hazeltine, 247 A.D. 2d 564 (2d Dept. 1998), a class of homeowners, one quarter of a mile from the Greenlawn Facility, alleged “that chemicals emitted from the defendant's Greenlawn Facility had been carried onto their soil, air and groundwater ... that the value of their property has declined either as a result of hazardous waste being carried onto their property or fear that because of their proximity to the Greenlawn Facility, hazardous waste will be so carried.” The Appellate Division, citing Wojciechowski and Evans, denied class certification because “issues exist as to whether and to what extent the emission caused any damage to any individual's property or their use and enjoyment thereof, and whether and to what extent the proximity of the Greenlawn Facility affected the market value of individual properties.” In Nicholson v. Keyspan, 2007 NY Slip Op 32422(U) (Suffolk Sup. 2007), a class of residents sought “damages and injunctive relief based upon their exposure to contaminants from the alleged migration of these contaminants in an underground plume from a decommissioned manufactured gas plant located in Bay Shore. In affirming the denial of class certification (Nicholson v. Keyspan, 2009 NY Slip Op 06413 (2d Dept. 2009)) the Appellate Division cited Aprea and Wojciechowski. In Osarczuk v. Associated Universities, 82 A.D. 3d 853 (2d Dept 2011), a class of residents sought “to recover damages for injury to property allegedly resulting from [defendant's] emission, over several decades, of numerous nuclear and non-nuclear hazardous and toxic substances into the air, soil and groundwater, from various sources and in various ways.” In reversing the trial court's decision granting certification to two subclasses, the Appellate Division noted that, “undoubtedly, there are questions common to all proposed class members that have been raised in this case. ... Nonetheless, individual investigation, proof, and determination would need to be made, not only on complicated questions such as the extent of damage, if any, to the numerous individual properties and their diminished market value, but as to causation. Under the circumstances presented, questions of whether the emissions of various toxic materials, over several decades, from various sources and in various ways, caused injury to the individual properties and economic loss to the property owners, cannot be resolved on a class-wide basis,” citing Aprea, Evans and Wojciechowski. |

Hospital and Nursing Home Mass Tort Class Actions

In Fleming v. Barnwell Nursing Home & Health Facilities, 309 A.D. 2d 1132 (3d Dept. 2013), the Appellate Division modified the trial court's decision by denying certification of a class of nursing home residents as to their negligence claims (citing Evans) but granted class certification for plaintiff's claim under Public Health Law Section 2801-d in a medical malpractice action. The plaintiff in Fleming alleged that her decedent was mistreated and the DOH, in a subsequent investigation of the defendant facility, found numerous violations of DOH regulations. But whether those regulatory violations constituted negligence with respect to each resident was a question requiring a highly individualized inquiry. In Westfall v. Olean General Hospital, 132 A.D. 3d 139 (4 th Dept. 2015), the court affirmed denial of certification to a proposed class of hospital patients who may have been treated with reused insulin pens, and thus were exposed to a blood-borne disease. Because it was possible, however, that a patient treated with a reused pen may not, in fact, have been exposed to a blood-borne disease (but was simply at risk of such exposure), the Appellate Division concluded that determining actual harm would require individual examinations of each class member. Thanks to the Court of Appeals in Borden, and subsequent decisions in the Appellate Divisions of the First and Fourth department, mass tort class actions involving property damage and/or physical injuries are now more readily certifiable. Thomas A. Dickerson is a retired associate justice of the Appellate Division, Second Department and the author of "Class Actions: The Law of 50 States," Law Journal Press (2018).