Consumer Class Actions in New York - New York City Bar Association

een described as Aunquestionably . . . the most troublesome@ prerequisite. Friar, 78
A.D.2d at 95. It has foiled many an attempt to certify. In Friar, the Second Department
wrote
In the Federal system, the Apredominance@ inquiry has led to
widely differing and irreconcilable results because of the
practice of focusing upon the delineation of all questions as
either Acommon@ or Aindividual@ and then deciding which
group outweighs the other. Discrete weighing has evoked
criticism from those who suggest that the focus of the
predomination inquiry should be that of promoting efficient
economy of judicial resources. . . . We, too, abjure the
weighing process in the belief that the decision as to whether
there are common predominating questions of fact or law so as
to support a class action should not be determined by any
mechanical test, but rather, Awhether the use of a class action
would >achieve economies of time, effort, and expense, and
promote uniformity of decision as to persons similarly
situated=”.
Id. at 96-97 (citations omitted).
Indeed, more often than not, when class treatment of a claim is denied in New York
for a reason other than standing or pleading, the reason has been the absence of a
predominance of common questions. The mere existence of individual questions, however,
should not defeat class certification. See Pruitt v. Rockefeller Center Properties, Inc., 167
A.D.2d 14, 21-22 (1st Dep=t 1991); Gilman v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
93 Misc.2d 941, 944 (Sup. Ct. N.Y. Co. 1978).
So long as there is a Acommon legal grievance,@ New York courts should grant
class certification, notwithstanding possible differences regarding some factual issues or in
the amount or measure or damages. See Weinberg v. Hertz Corp., 116 A.D.2d 1, 6-7 (1st
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