18th Annual Workplace Class Action Report - 2022 Edition

390 Annual Workplace Class Action Litigation Report: 2022 Edition emanating from its landfill. Defendant filed a motion to dismiss, and eventually the trial court: (i) granted the motion as to the public nuisance claim because the complaint "did not allege facts that the harm suffered by Plaintiffs as a result of the odors was any different from that experienced by other members of the community; and (ii) denied the motion as to the negligence claim on the grounds that the complaint alleged legally cognizable stigma damages. Id . at *2. Plaintiffs thereafter filed an amended complaint alleging that the noxious odors had "interfered with the exercise of the general public’s rights to breath clean and/or uncontaminated air,” and "suffered a discrete violation of their property rights, separate and apart from the interference with the rights common to the general public" insofar as the odors were substantially interfering with the "use and enjoyment of their properties," and had resulted in a diminution in their property values. Id . at *3. Plaintiffs asserted that the odors permeated the air of local schools and also affected "guests, lodgers and minor children" in ways that did not affect their property rights. Id . The trial court denied Defendant’s motion to dismiss the public nuisance claim in the amended complaint. It found that Plaintiffs had cured the pleading defects. Id . at *4. On appeal, Defendant argued that the trial court erred in permitting the public nuisance claim to proceed on the merits because Plaintiffs did not assert a special injury to confer standing as private individual, to recover damages for a public nuisance. Id . The New York Appellate Division agreed. The Appellate Division found that odors emanating from the landfill may qualify as a public nuisance insofar as they interfered with a common right of the public to clean and fresh air, but since Plaintiffs and the putative class members suffered the same common harm as other nearby property inhabitants, no special injury was proven. The Appellate Division determined that Plaintiffs’ alleged harm was essentially the same for all of the residents in the nearby vicinity of the landfill, i.e ., the community at large. With respect to the negligence claim, the Appellate Division ruled that Plaintiffs failed to plead a legally cognizable injury recognized in tort law because they did not sustain either physical injury or property damage resulting from Defendant’s alleged negligent conduct. The Appellate Division determined that the noxious odors at issue were transient in nature and did not have a continuing physical presence, nor did Plaintiffs allege tangible property damage or physical injury resulting from exposure to the odors. Id . at *11. The Appellate Division therefore affirmed the dismissal of Plaintiffs’ claims. Gesmer, et al. v. Administrative Board Of The New York State Unified Court System, Case No. 532566 (N.Y. App. Div. March 9, 2021). Plaintiffs, a group of state court judges in New York, filed a class action alleging that Defendant, the Administrate Board of the New York State Court System, illegally forced older judges into retirement amid ongoing COVID-19 budget cuts. Defendant denied continuing work certification to 46 of the 49 judges who reached the mandatory retirement age of 70 at the end of 2020. The certification would have allowed the judges over 70 to remain on the bench for an additional two-year period. Plaintiffs moved for a declaratory judgment in the New York Supreme Court of Suffolk County, seeking, among other relief, to have Defendant’s determination annulled and a new determination made in accord with the governing constitutional and statutory standards. The Supreme Court annulled Defendant’s decision to deny the reappointment of the judges on the basis that the decision was arbitrary and capricious and impliedly dismissed Plaintiffs’ remaining causes of action on the grounds that they need not be addressed or were without merit. The parties cross- appealed to the New York Appellate Division. The Appellate Division found error in the underlying order annulling Defendant’s decision to deny reappointment of the judges. It concluded that Defendant was justified in denying the requests for certification. Pursuant to New York constitutional mandate, a state court judge is required to retire on the last day of December in the year in which he or she reaches the age of 70. Thus, the Appellate Division determined that under the New York constitution, Defendant enjoyed the very broadest authority for the exercise of responsible judgment and very nearly unfettered discretion in determining whether to grant applications of judges for certification. Further, the Appellate Division reasoned that Defendant had the power to cut costs in light of a budget shortfall caused by the coronavirus pandemic and given that Defendant had made the extremely difficult judgment call that certification would prove too costly under the economic dilemma presented. In making its decision, Defendant concluded that certification would significantly disrupt overall court operations given that the alternative savings mechanism would require more than 300 layoffs of non-judicial personnel. As such, the Appellate Division opined that Defendant acted in accord with the governing standard and within the scope of its broad authority in basing its ultimate decision on the overall needs of the court system. For these reasons, the Appellate Division reversed the order annulling Defendant’s decision. As to Plaintiff’s cross-appeal, the Appellate Division affirmed the dismissal of Plaintiff’s remaining claims. The Appellate Division outright rejected Plaintiffs’ claim that Defendant targeted the elderly judges for retirement because of their age, since Plaintiffs had failed to make a prima facie showing that Defendant’s decision was