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THOMAS CHERRY et al., Indi v. dually and on Behalf of all those Similarly Situated, Respondents,

Memorandum:

We conclude that Supreme Court properly granted plaintiffs' motion for class certification pursuant to CPLR article 9, for the reasons set forth in our decision in Freeman v. Great Lakes Energy Partners ( 12 AD3d 1170). Here, as in Freeman, plaintiffs met their burden of establishing the prerequisites of CPLR 901 (a) and thus established their entitlement to class certification ( see generally Casey v. Prudential Sec., 268 AD2d 833, 834). Plaintiffs submitted evidence that they are 3 of approximately 471 landowners who are similarly situated, one of the four named plaintiffs having died following commencement of the action. Thus, plaintiffs thereby established that "the class is so numerous that joinder of all members . . . is impracticable" (CPLR 901 [a] [1]). In addition, we note that the commonality requirement set forth in CPLR 901 (a) (2) "requires predominance, not identity or unanimity, among class members" ( Friar v. Vanguard Holding Corp., 78 AD2d 83, 98), and here the common questions of law and fact concern defendants' alleged common use of a methodology to manipulate the figure upon which plaintiffs' royalties were based.

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CHERRY v. RESOURCE AMERICA, INC
(Feb 4, 2005)