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Richard J. Schager Jr. Richard J. Schager Jr.

The Court of Appeals recently stated a general rule that class certification should be denied only after a motion to certify is made with supporting affidavits, and not on a motion to dismiss on the pleadings. Maddicks v. Big City Props., 2019 WL 5353010 (Ct. App. 2019). What is remarkable about Maddicks is that the Court of Appeals and a panel of the First Department mustered only bare majorities to reach this unremarkable conclusion. The fact that three out of seven judges on the Court of Appeals and two out of five judges on the Appellate Division panel opposed this common sense reading of the CPLR’s class action rules suggests that the legislative goal in 1975, “to provide a flexible, functional scheme wider and more welcoming than ‘the narrow class action legislation which preceded it,’” is still sailing into strong judicial headwinds. Id. at *4.

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