BRADLEY C. ALDRICH, MICHAEL ARNOLD, ESTELA SALAS and STEPHANIE WEIER, on behalf of thennselves and all others similarly situated, Plaintiffs,
NORTHERN LEASING SYSTEMS, INC., JAY COHEN STEVE BERNARDONE, RICH HAHN, SARA KRIEGER AND JOHN DOES 1-50, Defendants. Index No. 602803/07
DECISION & ORDER
HON. MARTIN SHULMAN, J.S.C.
Plaintiffs move by order to show cause ("OSC") for leave to amend their complaint in this purported class action lawsuit. Defendants Northern Leasing Systems, Inc. ("NLS") and individual defendants Jay Cohen, Steve Bernardone, Rich Hahn and Sara Krieger (together with NLS, "defendants") oppose the motion.
Plaintiffs commenced this action based upon defendants' alleged practice of unlawfully accessing and/or making adverse entries in their consumer credit reports (CCR). The original complaint alleged violations of the Fair Credit Reporting Act ("FCRA"), 15 USC §§ 1681, et seq.; General Business Law ("GBL") §380, etseq. ("NYFCRA"); GBL §349 (deceptive trade practices); and defamation. By decision and order dated March 12, 2009, this court dismissed the GBL §349 and defamation causes of action (Counts IX and X, respectively). Plaintiffs' remaining causes of action for violations of the FCRA and NYFCRA allege that defendants: (1) willfully obtained plaintiffs' CCRs without a permissible purpose (Counts I and V); (2) negligently obtained plaintiffs' CCRs without a permissible purpose (Counts II and VI); (3) negligently refused or failed to investigate and/or rectify errors in reporting (Counts III and VII); and (4) willfully refused or failed to investigate and/or rectify errors in reporting (Counts IV and VIII).
Subsequently, plaintiffs moved for class certification on the unlawful access causes of action (Counts I, II, V and VI) as well as partial summary judgment thereon. Defendants cross-moved for partial summary judgment dismissing these four causes of action. By decision and order dated August 16, 2012 (the "8/16/12 decision"), this court inter alia: denied plaintiffs' motion for class certification and partial summary judgment; granted defendants' cross-motion for summary judgment dismissing Counts I and V alleging defendants willfully obtained plaintiffs' CCRs without a permissible purpose in violation of the FCRA and the NYFCRA against all defendants and further dismissing Counts II and VI alleging defendants negligently obtained plaintiffs' CCRs without a permissible purpose in violation of the FCRA and NYFCRA solely as against the individual defendants.
Plaintiffs' Proposed Amendments
The proposed amended complaint ("AC") primarily seeks to add the allegation that defendants failed to give advance written notice to plaintiffs prior to accessing their CCRs as the NYFCRA (GBL §380-b[b]) requires. It also seeks to streamline plaintiffs' allegations by removing plaintiff Stephanie Weier from the caption due to her bankruptcy filing, deleting references to her within the AC and deleting dismissed Counts I (wilful violation of FCRA §1681 b[f] by accessing CCRs without a permissible purpose), IX (GBL §349) and X (defamation). Plaintiffs contend NLS will not be "unduly prejudiced" by the amendment since discovery is ongoing and no further proceedings are presently scheduled.
Defendants oppose the proposed amendment on the following grounds:
• as this court remarked in its 8/16/12 decision, plaintiffs waited over five (5) years (and over five months after the 8/16/12 decision) to bring a claim they could have asserted from the outset of this litigation, without offering any excuse for their excessive delay;
• the proposed amendment will prejudice defendants because it is barred by the two (2) year statute of limitations for NYFCRA violations (GBL §380-n), which began to run at the time plaintiffs' CCRs were accessed;
• even if the proposed amendment were not time barred, defendants would still be prejudiced because: the claims plaintiffs seek to raise involve issues dating back to 1991; there has been no discovery on such issues; and it is likely that relevant documents may have been lost or discarded and memories will have faded, thus impairing defendants' ability to obtain relevant discovery to aid their defense;
• prejudice to defendants is not limited to the three (3) named plaintiffs since the AC seeks to assert time-barred claims on behalf of more than 500, 000 class members when only those class claims arising after December 2010 ...