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Evans v. Johnstown, City of

Citation: 9 ELR 20507
No. No. 60835, (N.Y. Sup. Ct., 04/25/1979) Certification of class action preliminarily granted

Supplementing the court's prior decision, 9 ELR 20060, on an action seeking equitable relief and monetary damages for alleged injuries arising from the construction and operation of a municipal sewage plant, the court preliminarily grants a motion to maintain the action as a class action, pursuant to CIV. PRAC. §§ 901-902, subject to the outcome of a "mini-hearing" concerning the description of the class. Plaintiffs are residents and property owners within the class who allege that they suffer from the odor of the sewage plant, must remove from their properities matter discharged from the facilities, live with the threat of disease, and have suffered a diminution of property values. Questions of law and fact clearly predominate over questions concerning individual class members. Distinguishing Wojchiechowski v. Republic Steel Corp., 413 N.Y.S.2d 70 (App. Div. 1979), the court notes that the class need not be described on a person-by-person basis. The allegations of the complaint indicate that joinder would be impracticable; nevertheless, if subsequent information reveals the number of plaintiffs to be substantially less than alleged, the order allowing the class action may be revised. The court assumes that plaintiffs have sufficient financial resources to prosecute the action. Finally, the court rejects defendants' claim that there are antagonistic interests within the class which make is impossible for the named plaintiffs to protect adequately the interests of the class. A class action is of superior usefulness in this instance to avoid a multiplicity of lawsuits otherwise and to allow a proper balancing of the equities as regards an injunction. The individual class members will be able to control the individualized damage hearings, and only the injunctive relief will be handled in class action form. The court will allow "opting out" if an individual class member is opposed to the aims of the class.

The full text of this opinion is available from ELR (11 pp. $1.50, ELR Order No. C-1169).

Counsel for Plaintiffs
Robert J. Kafin
Miller, Mannix, Lemery & Kafin, P.C.
11 Chester St., Glens Falls NY 12801
(518) 793-6611

Counsel for Defendants
Bond, Schoeneck & King
One Lincoln Center, Syracuse NY 13202
(315) 422-0121

Shea, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]