Kelley Kronenberg Partner Scott Kagan secured the defeat of class certification and subsequent voluntary discontinuance with prejudice in a putative class action filed in Saratoga County, New York. 

The plaintiff, an attorney proceeding pro se and seeking to represent a proposed class, alleged that construction on adjacent property unreasonably disturbed the quiet enjoyment of tenants and residents at a residential development. The original complaint named the property owner and property manager, asserting claims for private nuisance, breach of contract, constructive eviction, and other theories. The plaintiff later amended the complaint to add multiple construction-related defendants, including Scott’s clients: LeChase Construction Services, LLC, Platinum Builders LLC, and Platinum-LeChase Construction Group, LLC. 

The proposed class encompassed 292 existing residential properties within the development. 

Scott moved to dismiss the amended complaint pursuant to CPLR §§ 3211(a)(1) and (a)(7), arguing that the plaintiff failed to state a cause of action against his clients and that documentary evidence established a defense as a matter of law. The plaintiff filed numerous motions of his own, including applications to certify the class, to file additional amended complaints adding new defendants, and various discovery-related motions. 

The Court addressed all pending motions. On class certification, the Court found the plaintiff’s application untimely. CPLR § 902 requires a plaintiff to move for class certification within 60 days after the time to serve a responsive pleading has expired. The plaintiff commenced the action in April 2023 but did not move for class certification until September 2024. The plaintiff argued that filing an amended complaint reset the deadline, but the Court rejected this interpretation, citing Ortega v. Skyworx Constr. Inc., 221 A.D.3d 463 (1st Dept. 2023), which held that granting an amended complaint does not automatically reset the CPLR 902 filing deadline. The Court denied class certification and amended the caption to remove the purported class. 

The Court also denied the plaintiff’s motions to file additional amended complaints, finding the plaintiff failed to comply with CPLR § 3025(b) by not sufficiently outlining the proposed changes and not demonstrating why the claims could not have been pleaded in the initial action or prior amendments. 

With the class claims defeated and additional amendments blocked, the plaintiff voluntarily discontinued the action with prejudice. 

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