Recitation of the papers considered in reviewing the underlying motion as required by CPLR §2219(a): Papers Numbered Notice of Motion and annexed exhibits and affidavits 1 Order to Show Cause and annexed exhibits and affidavits Affirmation in Opposition and annexed exhibits and affidavits 2 Reply Affidavit Other DECISION AND ORDER In this action for breach of contract, it is alleged that Defendant entered into a retail installment agreement with the Plaintiff for the purchase of a motor vehicle. It is further alleged that Defendant failed to make the installment payments, thereby, causing Plaintiff to repossess and dispose of Defendant’s vehicle. Plaintiff initiated the instant action with the filing of summons and complaint on June 25, 2018. Defendant joined the action with the service of an answer and counterclaim on or around October 17, 2018. During the course of discovery, a copy of the pre-sale notice was provided to Defendant, which Defendant alleges contained multiple violations of the UCC. Defendant further alleges that Plaintiff provided numerous individuals with the same deficient and violative pre-sale notices. Defendant now moves to amend her answer and counterclaim seeking to certify her counterclaim as a class action counterclaim. Defendant has attached the alleged pre-sale notice as an exhibit for the Court’s consideration of the relief requested. In response, Plaintiff filed a correspondence with the Court advising that it needed time to look into the class action claim and determine whether opposition was necessary. Oral arguments were subsequently adjourned for approximately five weeks. At oral arguments, however, Plaintiff failed to oppose the motion and did not seek an extension to file opposition, resulting in the submission of the instant motion. For the reasons set forth herein, Defendant’s motion to amend the answer and counterclaim is DENIED. Generally, a defendant may allege any defense or counterclaim in her answer or amend her answer to allege any defense or counterclaim within 20 days after serving said answer without leave of court (NY CPLR 3025[a]). After expiration of the 20 days, however, leave of court or stipulation of all parties is required to amend a pleading (NY CPLR 3025[b]). It is well settled that an application for leave to amend a pleading “shall be freely given upon such terms as may be just” and denied where there is prejudice or surprise, or “if the proposed amendment is palpably improper or insufficient as a matter of a law.” (NY CPLR 3025[b]; LDIR, LLC v. DB Structured Prods., Inc., 172 AD3d 1, 4 [1st Dept. 2019], citing CIFG Assur. N. Am., Inc. v. J.P. Morgan Sec. LLC, 146 A.D.3d 60, 64-65 [1st Dept 2016] [internal quotation marks omitted]). In the absence of “prejudice or surprise resulting directly from the delay in seeking leave” to amend a pleading, such applications “are to be freely granted ‘unless the proposed amendment is palpably insufficient or patently devoid of merit’ ” (Castle Peak 2012-1 Loan Trust Mtge. Backed Notes, Series 2012-1 v. Sottile, 147 AD3d 720, 722 [2nd Dept 2017], quoting Lucido v. Mancuso, 49 AD3d 220, 222 [2nd Dept 2008]; see CPLR 3025 [b]; Davis v. South Nassau Communities Hosp., 26 NY3d 563, 580 [2015]). “A party opposing leave to amend must overcome a heavy presumption of validity in favor of [permitting amendment]” (LDIR, LLC, 172 AD3d at 4, citing McGhee v. Odell, 96 A.D.3d 449, 450 [1st Dept 2012] [internal quotation marks omitted]). Furthermore, “[n]o evidentiary showing of merit is required under CPLR 3025 (b)” (Lucido, 49 AD3d at 229). Whether a lawsuit qualifies as a class action matter is a determination made upon a review of the statutory criteria as applied to the facts presented; it ordinarily rests within the sound discretion of the trial court (CPLR 901; see also, Small v. Lorillard Tobacco Co., Inc., 94 N.Y.2d 43 [1999]); Brown v. State of New York, 250 A.D.2d 314, 320 [3rd Dept 1998]). CPLR article 9 authorizes class action suits and sets forth the criteria to be considered in granting class action certification, which are to be liberally construed (see Kidd v. Delta Funding Corp., 289 A.D.2d 203 [2nd Dept 2001]; Liechtung v. Tower Air, 269 A.D.2d 363 [2nd Dept 2000]; Lauer v. New York Tel. Co., 231 A.D.2d 126, 130 [3rd Dept 1997]; Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 91 [2nd Dept 1980]). CPLR 901(a) sets forth the criteria a court must consider in deciding to certify a class action: 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 interests of the class; and 5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy. In the case at bar, the Court finds that the defendant has failed to satisfy the statutory criteria of CPLR article 9. First, the defendant has failed to establish the number of potential class members and thus that the class is so numerous that joinder of all members is impracticable (see CPLR 901[a][1]; Friar, 78 A.D.2d at 90). The defendant also failed to establish that she will fairly and adequately protect the interests of the class (see CPLR 901[a][4]; Friar, 78 A.D.2d at 91). As both the class representative and class counsel, she has an inherent conflict of interest (see Tanzer v. Turbodyne Corp., 68 A.D.2d 614, 620 [1st Dept 1979]). Moreover, she failed to show that she has either the financial resources or the professional qualifications to undertake a class action (see Pruitt v. Rockefeller Ctr. Prop., 167 A.D.2d 14, 24 [1st Dept 1991]). Accordingly, the Court finds the proposed amendment to be palpably insufficient as a matter of a law. (NY CPLR 3025[b]; LDIR, LLC., 172 AD3d at 4; citing CIFG Assur. N. Am., Inc., 146 A.D.3d at 64-65. In addition, the Court finds the proposed amendment to be “patently devoid’ and without merit (Castle Peak 2012-1 Loan Trust Mtge. Backed Notes, Series 2012-1, 147 AD3d at 722; quoting Lucido v. Mancuso, 49 AD3d at 222; see CPLR 3025 [b]; Davis, 26 NY3d at 580). Defendant movant’s central argument is that the pre-sale notice “contained multiple violations of the UCC”, in particular, “an improper ‘Personal Property Fee’ and ‘Redemption Processing Fee’.” Upon closer examination of the alleged violative pre-sale notice, however, the Court finds that these are not charges being made by the Plaintiff but a notice of possible fees that may be charged by a “third party repossession agent or auction location.” It would be palpably improper as a matter of law to grant the proposed amendment given that what the movant alleges is incorrect, bereft of merit and, frankly, disingenuous (NY CPLR 3025[b]; LDIR, LLC, 172 AD3d at 4; citing CIFG Assur. N. Am., Inc., 146 A.D.3d at 64-65). As such, this Court declines to grant class certification of Defendant’s counterclaim (see Kidd, 289 A.D.2d at 203; Tosner, 12 A.D.3d 589; Liechtung, 269 A.D.2d at 364; Lauer, 231 A.D.2d at 130). ACCORDINGLY, it is hereby: ORDERED, that defendant’s motion to amend the answer and counterclaim is DENIED. This constitutes the Decision and Order of this Court. Dated: September 30, 2021
