We write with regard to an article published in the New York Law Journal of Wednesday, February 7, 2018, titled “Putative Class Actions For Rent Overcharges,” written by Warren A. Estis and Michael E. Feinstein. The article described a recent decision by Justice Erika M. Edwards in Maddicks v. Big City Realty, dismissing the complaint, at the motion to dismiss stage for, inter alia, failure to establish the CPLR 901(a) prerequisites of commonality and superiority. This firm represents the plaintiffs in Maddicks.
Messrs. Estis’ and Feinstein’s article is misleading in several respects. Their firm, Rosenberg and Estis, represents landlords in multiple class action matters raising similar claims to Maddicks, many of which are currently sub judice. In those currently pending matters, they have put forth Justice Edward’s decision in Maddicks as supporting dismissal of class actions at the threshold stage. Far from being impartial writers, they have a vested interest in how the Maddicks decision is perceived by the members of the bench, many of whom are among your readers. They conveniently fail to disclose that interest.
Second, the article selectively quotes from Justice Edwards’ opinion in Maddicks, apparently in an attempt to bolster the decision’s implications for class-action practice in the landlord-tenant area. For instance, the article fails to note that Judge Edwards improvidently held that a class-action is not superior because the analysis of class claims “could be onerous”—a hypothetical determination that not only was premature at the pre-class certification, motion to dismiss stage, but which is unsupported in law, and is a standard that could be wrongfully used to dismiss any class action.
Third, the article fails to disclose that Maddicks is on appeal to the First Department, where it has been fully briefed, and could be argued as early as the March 2018 term. We believe that the First Department will find that several grounds exist for reversing Maddicks, including, but not limited to: that the ruling was made sua sponte on grounds unaddressed by the parties; that class actions may not be dismissed for failure to meet the CPLR 901(a) requirements at the pre-class certification stage; that holding a class action to be inappropriate because tenants “may wish” to opt out ignored clear Court of Appeals precedent in Borden v. 400 E. 55th Street, 24 NY3d 382 ; and for holding that claims for un-performed and under-performed individual apartment improvements could not be heard in the same action as claims arising out of failures to register apartments with DHCR, but that each of those claims must be brought as separate cases.
Lucas Ferrara is a partner at Newman Ferrara.