The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiffs commenced this purported class action alleging claims under, inter alia, the Fair Housing Act, the Civil Rights Act, the Racketeering Influenced and Corrupt Organizations Act ("RICO"), and the New York General Business Law, as well as common law causes of action, all arising from their purchase of homes from the defendants on Long Island and Staten Island between 1994 and 2001. Pending before the Court is Plaintiffs' motion for certification of this case as a class action pursuant to Federal Rule of Civil Procedure 23(a) and (b)(3). For the reasons set forth below, Plaintiffs' motion is denied.
In this proposed class action, Plaintiffs challenge an alleged policy and practice of race discrimination and racial steering committed by the Defendants. Plaintiffs, on behalf of over 400 homeowners, allege that Defendants Isaac Toussie, Robert Toussie, Toussie Family Homes, David Park Estates, Inc., Easy Home Program Corporation, East Coast Land Developers Corporation, Flend Corporation, Fobert Corporation, Housing Corporation of America, Marconi Realty Ltd., Rod Staten Corporation, Toussie Family Enterprises Ltd., Toussie Group Ltd., Your Long Island Home Corp., and Your Staten Island Home Corp. (the "Toussie Defendants" or "Sellers")*fn1 through a discriminatory policy and procedure, systematically steered minority home buyers to racially segregated neighborhoods on Long Island and Staten Island to buy homes they could not afford and that were overpriced, had mortgage and/or property tax payments that were dramatically higher than represented, defectively built, lack promised amenities and were located in different towns and worse neighborhoods than represented.*fn2
Plaintiffs seek certification of a liability class with respect to Long Island defined as follows:
All Blacks and Hispanics who purchased residential real estate from the Sellers and who:
(a) because of their race and/or national origin, were, pursuant to the Sellers' blanket policies and standard practices, steered to areas Defendants had designated for Black and Hispanic purchasers (the "Designated Areas"); and
(b) because of Defendants' standard deceptive conduct, purchased intentionally overpriced and over-appraised homes, homes with mortgages they could not afford, homes with property tax payments higher than represented, homes that were defectively built, homes lacking in promised amenities, and/or homes located in different towns and in worse neighborhoods than represented.
Plaintiffs also seek certification of the following liability subclass with respect to Staten Island:
All persons who purchased residential real estate from Sellers, and who, because of Defendants' deceptive conduct, purchased intentionally overpriced and over-appraised homes, homes with mortgages they could not afford, homes with property tax payments higher than represented, homes that were defectively built, homes lacking in promised amenities, and/or homes located in different towns and in worse neighborhoods than represented.
Pls.' Mem. filed pursuant to Court's March 1, 2007 Order ("Pls.' Supp. Mem.) at 1-2.
Sellers oppose class certification on the grounds that the proposed class is not ascertainable, common issues do not predominate, and a class action is not superior to individual actions. In addition, Sellers assert that Plaintiffs' claims are not typical and they and their counsel are not adequate representatives.
The facts as alleged by Plaintiffs are as follows: The Toussie Defendants were, during the relevant time period, involved in the business of buying land and creating residential subdivisions. In the residential subdivisions that they create and build, the Toussies have implemented a policy by which they covertly steer minority buyers to purchase defective homes in predominantly minority neighborhoods and away from predominantly white neighborhoods. Defendant Isaac Toussie instructed his sales staff that certain areas were designated as "whites only" areas and reprimanded sales agents who showed homes to minorities in areas designated exclusively for whites.
The Toussie Defendants targeted minorities by advertising in newspapers and other media that cater to minorities. Also, they falsely advertised (1) sponsorship by the NAACP, (2) praise from Black celebrities and (3) that they were the official builder of the Long Island Housing Partnership. Once potential customers personally came in, their applications were coded by race, color and/or national origin. Minority customers who inquired about purchasing homes in predominantly white communities were ...