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Current Developments in the Commercial Divisions of the
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Posted: May 9, 2014

Failure Timely to File for Class Certification Mandates Denial of Certification

On April 30, 2014, Justice Bransten of the New York County Commercial Division issued a decision in Egan v. Telomerase Activation Sciences, Inc., 2014 NY Slip Op. 31176(U), denying a motion for class certification as untimely.

In Egan, the plaintiffs commenced an action on July 23, 2012. The defendants answered on October 3, 2012, asserting affirmative defenses. On October 21, 2013, the Court granted the defendants’ motion to file an Amended Answer, adding a counterclaim. On December 23, 2013, the plaintiffs moved for class certification. The court denied the motion with prejudice as untimely, explaining:

To maintain an action as a class action, a plaintiff is required to seek an order certifying the class within sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in the action. Failure to seek class certification within this sixty-day period mandates denial of the class certification motion with prejudice. Plaintiffs filed the instant class certification on December 23, 2013, nearly a year and a half after the commencement of this action and fifteen months after the filing of Defendants’ Answer. While the parties do not specify exactly when Plaintiffs served the Complaint on Defendants – and accordingly when Defendants’ responsive pleadings were due – this motion is nonetheless clearly untimely under CPLR 902. Even assuming for the sake of argument that Defendants interposed their Answer on the day that the Complaint was served, Plaintiffs’ filing of the instant motion nearly fifteen months later was plainly more than sixty days after the time Defendants’ Answer was due. Plaintiffs have offered no justification for this late filing. Accordingly, Plaintiffs’ motion for class certification is denied with prejudice . . . .

(Internal quotations and citations omitted) (emphasis added).

This is yet another example of the importance of tracking the procedural rules relating to an action, lest, as here, a party lose a claim simply through inadvertence.

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