I have been writing about New York state class actions under CPLR Article 9 since 1979, see Dickerson, “New York State Class Actions: Make It Work—Fulfill the Promise,” 74.2 Albany L.R. 711 n.1, and although the proper utilization of Article 9 has on occasion been problematic, there are moments when decisions can, indeed, be inspiring. The First Department’s decision in Gold v. New York Life Insurance Company is one of them. 2017 N.Y. App. Div. LEXIS 5627 (1st Dept. 2017). In fact, in terms of courage and thoughtful analysis in both majority and dissenting opinions, Gold ranks very close to the superb decision of the Court of Appeals in Borden v. 400 East 55th Street Associates allowing tenants to sue as a class if they waived the penalty provisions of the statutes (e.g., Rent Stabilization Law) under which they brought suit, thereby circumventing the prohibitions of CPLR 901(b). 24 N.Y.3d 382 (2014); see Dickerson & Duffy, “‘Borden’: a Welcome Sea Change on New York State Class Actions,” N.Y.L.J., (June 29, 2015, p. 4); Dickerson, Austin & Zucco, New York State Class Actions: Making It Work—Fulfilling the Promise: Some Positive Developments and Why CPLR 901(b) Should Be Repealed,” 77.1 Albany L.R. 59 (2014).
Allowing class members to “waive the penalty” had already become accepted practice in class actions brought by consumers, employees and others. See, e.g., Cox v. Microsoft, 8 A.D.3d 39 (1st Dept. 2004); Ridge Meadows Homeowners’ Ass. v. Tara Dev., 242 A.D. 2d 947 (4th Dept. 1997); Super Glue v. Avis Rent A Car System, 132 A.D.2d 604, 606 (2d Dept. 1987); Pesantz v. Boyle Environmental Services, , 251 A.D.2d 11 (1st Dept. 1998); Krebs v. Canyon Club, 22 Misc. 3d 1125 (West. Sup. 2009); Pires v. Bowery Presents, 44 Misc. 3d 704 (N.Y. Sup. 2014) (Arts and Cultural Affairs Law 25.30(1)(c)).
