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Posted: December 21, 2013

Attempt To Certify Class Action by Tenants Injured By Hurricane Sandy Summarily Dismissed

On December 11, 2013, Justice Kornreich of the New York County Commercial Division issued a decision in Adler v. Ogden Cap Props., LLC, 2013 NY Slip Op. 23428, denying class certification to a plaintiff class purporting to represent all renters in the State of New York against a proposed defendant class of all landlords in the State of New York, with the goal of obtaining rent rebates for violations of the warranty of habitability, RPL § 253-b, caused by Superstorm Sandy.

The proposed class representatives asserted a number of claims, which Justice Kornreich addressed as follows:

  • The warranty of habitability is based in contract, so claims under RPL § 253-b cannot be brought against non-parties to the lease, such as landlords’ agents;
  • For the same reason, plaintiffs could not recover on their unjust enrichment claims, which cannot be brought where there is a contract between the parties;
  • Two of the plaintiffs who left their apartments before the storm—as opposed to being forced out afterwards because of uninhabitable conditions caused by the storm—were not eligible for warranty of habitability damages, because RPL § 253-b is intended to compensate people for living in an uninhabitable residence;
  • The plaintiffs who left before the storm were ineligible to serve as class representatives because they had no individual claim under RPL § 253-b;
  • Because each member of the proposed plaintiff class had vastly different damages, the proposed plaintiff class was so legally defective on its face as to not even merit class discovery, and the largest possible class that the court would even consider would be composed of the tenants of a particular building;
  • A defendant class would not be certified either, due to due process concerns and the factual differences between each landlord’s conduct;
  • Individual actions in the Housing Court were likely the most effective route to compensating tenants for warranty of habitability damages.

Based upon these holdings, all claims were dismissed. Those tenants who remained in their apartments during the storm were given leave to replead, but were cautioned that the court had serious misgivings about certifying any plaintiff or defendant class.

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