OPINION OF THE COURT

PETERS, J.P.

Plaintiffs, who at the time had criminal charges pending against them in defendants Onondaga, Ontario, Schuyler, Suffolk and Washington Counties (hereinafter collectively referred to as the counties), commenced this putative class action alleging that the current system of public defense is systemically deficient and poses a grave risk that indigent criminal defendants are being or will be denied their constitutional right to counsel. They sought, among other things, a declaration that their constitutional rights and those of the class are being violated and an injunction requiring defendants to provide a system of public defense consistent with those guarantees. On a prior appeal, this Court found, by a plurality, that the complaint alleged only nonjusticiable claims of ineffective assistance of counsel and granted defendant State of New York's motion to dismiss (66 A.D.3d 84 [2009]). The Court of Appeals subsequently modified this Court's order and reinstated a portion of the complaint, concluding that plaintiffs stated a claim for both actual and "constructive" denial of the right to counsel under Gideon v Wainwright (372 U.S. 335 [1963]) and that such systemic claims are justiciable in a collateral civil action seeking prospective relief (15 N.Y.3d 8, 22-23 [2010]).

In the meantime, plaintiffs moved for class action certification, seeking certification of a class of

Supreme Court denied the motion, finding that plaintiffs had failed to demonstrate that they would fairly and adequately protect the interests of the entire class and that a class action was superior to other available methods for resolving the claims. Plaintiffs appeal and we reverse.

In order to obtain class action certification, a party must establish that:

Significantly, these criteria must be liberally construed and "any error, if there is to be one, should be . . . in favor of allowing the class action" (Pruitt v Rockefeller Ctr. Props., 167 A.D.2d 14, 21 [1991] [internal quotation marks and citation omitted]; accord Lauer v New York Tel. Co., 231 A.D.2d 126, 130 [1997]; see Liechtung v Tower Air, 269 A.D.2d 363, 364 [2000]; Friar v Vanguard Holding Corp., 78 A.D.2d 83, 91 [1980]). Furthermore, while the determination as to whether a lawsuit qualifies as a class action rests within the sound discretion of the trial court, we are vested with a corresponding power to substitute our own discretion for that of the trial court, even in the absence of an abuse of that discretion (see City of New York v Maul, 14 N.Y.3d 499, 509 [2010]; Small v Lorillard Tobacco Co., 94 N.Y.2d 43, 52-53 [1999]).

Following these principles, and guided by the Court of Appeals' articulation of plaintiffs' claim subsequent to Supreme Court's determination, we find that plaintiffs satisfied all of the prerequisites to class action certification. There can be no serious dispute that the proposed class, consisting of potentially tens of thousands of individuals, meets the numerosity requirement (see CPLR 901 [a] [1]). Furthermore, common questions of law and fact predominate over questions affecting only individual class members (see CPLR 901 [a] [2]). Significantly, the Court of Appeals dismissed the complaint to the extent that it was premised on performance based claims of ineffective assistance of counsel, thereby obviating any need to conduct individualized inquiries into the performance of the class members' individual attorneys. With only the claims of "outright" and "constructive denial" of the right to counsel at a critical stage of the criminal proceeding remaining (15 NY3d at 22-23), the "basic, unadorned question presented [in this action] is whether the State has met its obligation to provide counsel" (id. at 23). That is, the inquiry distills to whether, "in one or more of the five counties at issue[,] the basic constitutional mandate for the provision of counsel to indigent defendants at all critical stages is at risk of being left unmet because of systemic conditions" (id. at 25). It is this concrete legal issue, and the constitutional right to counsel sought to be vindicated, that is common to all members of the class and transcends any individual questions. That the class members may have suffered the deprivation of their constitutional right to counsel in varying manners—be it through outright denial of counsel during arraignment or a bail hearing, or nonrepresentation at a critical stage—does not compel a conclusion that individual issues predominate; "it is `predominance, not identity or unanimity,' that is the linchpin of commonality" (City of New York v Maul, 14 NY3d at 514, quoting Friar v Vanguard Holding Corp., 78 AD2d at 98; see Fleming v Barnwell Nursing Home & Health Facilities, 309 A.D.2d 1132, 1133-1134 [2003]). Likewise, "the fact that questions peculiar to each individual may remain after resolution of the common questions is not fatal to the class action" (City of New York v Maul, 14 NY3d at 514 [internal quotation marks and citation omitted]). Additionally, inasmuch as the named plaintiffs' claims derive from the same course of conduct that gives rise to the claims of the other class members and is based upon the same legal theory (see Super Glue Corp. v Avis Rent A Car Sys., 132 A.D.2d 604, 607 [1987]; Friar v Vanguard Holding Corp., 78 AD2d at 99), the prerequisite of typicality is also satisfied (see CPLR 901 [a] [3]).

Moreover, plaintiffs have demonstrated that the representative parties would fairly and adequately protect the interests of the entire class (see CPLR 901 [a] [4]). Plaintiffs submitted evidence that class counsel is highly experienced in class action litigation and has sufficient resources available to adequately protect and represent the class (see City of New York v Maul, 59 A.D.3d 187, 190 [2009], affd 14 N.Y.3d 499 [2010]; Globe Surgical Supply v GEICO Ins. Co., 59 A.D.3d 129, 144 [2008]). Furthermore, affidavits from the named plaintiffs established that they are familiar with the litigation and understand the issues involved, and several of the representative plaintiffs also indicated that they joined in the lawsuit not in an effort to alter the outcomes of their individual cases, but in order to improve the indigent defense system. The fact that the criminal cases of the named plaintiffs have terminated does not, in our view, suggest that they will not adequately pursue the action (cf. United States Parole Comm'n v Geraghty, 445 U.S. 388, 397-400 [1980]).

Nor do we perceive a potential conflict of interest between plaintiffs and members of the proposed class. In finding otherwise, Supreme Court reasoned that plaintiffs' failure to pursue a damages claim in this action would bar class members, under principles of res judicata, from subsequently bringing individual legal malpractice claims against their criminal attorneys. However, "a class action judgment `will as a rule bind only as to matters actually litigated and not necessarily those which merely might have been'" (Matter of Dvelis v New York State Dept. of Social Servs., 146 A.D.2d 875, 877 [1989], lv denied 74 N.Y.2d 608 [1989], quoting Siegel, NY Prac § 454, at 600; see Eliasof v Metropolitan Life Ins. Co., 39 A.D.3d 801, 803 [2007]; cf. Murphy v Erie County, 28 N.Y.2d 80, 85-86 [1971]). Here, individualized damage claims related to counsel's performance in any given criminal proceeding will not and, in light of the Court of Appeals' circumscription of plaintiffs' claim, cannot be litigated in this action. Accordingly, we fail to find the existence of any conflict of interest and conclude that plaintiffs have made a sufficient showing that the representative plaintiffs will adequately protect the interests of the class.

Finally, unlike Supreme Court, we find that a class action is superior to other available methods for obtaining a fair and efficient adjudication of this controversy (see CPLR 901 [a] [5]). Defendants urge, and Supreme Court found, that class action certification is unnecessary and unwarranted here in light of the government operations rule. "That rule cautions against class certification where governmental operations are involved, since any relief granted to the named plaintiffs would adequately flow to and protect others similarly situated under principles of stare decisis" (New York City Coalition to End Lead Poisoning v Giuliani, 245 A.D.2d 49, 51 [1997] [citations omitted]; see Matter of Martin v Lavine, 39 N.Y.2d 72, 75 [1976]; Matter of Jones v Berman, 37 N.Y.2d 42, 57 [1975]; Matter of Legal Aid Socy. v New York City Police Dept., 274 A.D.2d 207, 213 [2000], lv dismissed and denied 95 N.Y.2d 956 [2000]). While we find a measure of merit to the assertion that injunctive relief granted to these 20 plaintiffs—i.e., the provision of a public defense system that ensures that indigent criminal defendants receive their constitutionally guaranteed right to counsel—would protect the proposed class of indigent defendants in the counties, we perceive other compelling concerns weighing in favor of, and thus making superior, a class action for the purpose of adjudicating this dispute.

First, denial of class certification gives rise to the possibility of multiple lawsuits involving claims duplicative of those asserted in this action and inconsistent rulings by various courts in this state (see New York City Coalition to End Lead Poisoning v Giuliani, 245 AD2d at 52; Tindell v Koch, 164 A.D.2d 689, 695 [1991]). As noted by the Court of Appeals,

We also find that proceeding in the absence of class action status would subject the prosecution of this case to significant discovery challenges. Plaintiffs claim that their constitutional right to counsel, as well as that of all other indigent criminal defendants in the counties, are being systemically denied due to deficiencies in the public defense system. It follows that, in order to prove their claim, plaintiffs will be saddled with the enormous task of establishing that deprivations of counsel to indigent defendants are not simply isolated occurrences in the case of these 20 plaintiffs, but are a common or routine happenstance in the counties. Supreme Court found that plaintiffs can call current indigent defendants as nonparty witnesses and rely on the histories of their criminal proceedings in order to prove their claim, yet, without class action certification, the hurdle of ascertaining the identity of those indigent defendants and/or accessing the histories of their criminal proceedings may prove insurmountable.

Finally, and in our view not insignificantly, our research has failed to identify a single case involving claims of systemic deficiencies which seek widespread, systematic reform that has not been maintained as a class action (see e.g. City of New York v Maul, 14 N.Y.3d 499 [2010], supra; Brad H. v City of New York, 276 A.D.2d 440 [2000], affg 185 Misc.2d 420 [2000]; New York City Coalition to End Lead Poisoning v Giuliani, 245 A.D.2d 49, 51 [1997], supra). Mindful of the liberal construction we must give to CPLR article 9, and reiterating that any error should be resolved in favor of granting class action certification (see Lauer v New York Tel. Co., 231 A.D.2d 126, 130 [1997], supra; Pruitt v Rockefeller Ctr. Props., 167 A.D.2d 14, 21 [1991], supra), we conclude that the unique circumstances of this case render a class action superior to other methods of adjudicating this controversy.

Ordered that the order is reversed, on the facts, with costs, and motion granted.