New York Court of Appeals, 1987

Weinberg v. Hertz Corp.

New York Court of Appeals · Decided May 7, 1987

69 N.Y.2d 979; 509 N.E.2d 347; 516 N.Y.S.2d 652; 1987 N.Y. LEXIS 16748

Cases that cite this one

54 later published cases cite this decision. The 25 that cite it most often are listed here.

BP America Production Co. v. Patterson (Colo. 2011)
Patterson v. BP America Production Co. (Colo. App. 2010)
City of New York v. Maul (N.Y. 2010)
Garcia v. Medved Chevrolet, Inc. (Colo. App. 2009)
Farmers Insurance Exchange v. Benzing (Colo. 2009)
Sumitomo Copper Litigation v. Credit Lyonnais Rouse, Ltd. (2d Cir. 2001)
Medicare Beneficiaries' Defense Fund Ex Rel. Klass v. Shield (District Court, E.D. New York 1996)
In re Crazy Eddie Securities Litigation (District Court, E.D. New York 1992)
Oppenheimer-Palmieri Fund, L.P. v. Peat Marwick Main & Co. (District Court, E.D. New York 1992)
Ackerman v. Price Waterhouse (Appellate Division of the Supreme Court of New York 1998)
Hogan v. Ulta Salon (New York Supreme Court, New York County 2024)
Kozak v. Kushner Vil. 329 E. 9th St. LLC (Appellate Division of the Supreme Court of New York 2024)
Jackson v. Citywide Mobile Response Corp. (New York Supreme Court 2023)
Matter of Stewart v. Roberts (Appellate Division of the Supreme Court of New York 2021)
Diamond v. New York City Hous. Auth. (Appellate Division of the Supreme Court of New York 2020)
Vandee v. Suit-Kote Corp. (Appellate Division of the Supreme Court of New York 2018)
Matter of Stewart v. Roberts (Appellate Division of the Supreme Court of New York 2018)
Nawrocki v. Proto Construction & Dev. Corp. (Appellate Division of the Supreme Court of New York 2011)
Pludeman v. Northern Leasing Systems, Inc. (Appellate Division of the Supreme Court of New York 2010)
Dowd v. Alliance Mortgage Co. (Appellate Division of the Supreme Court of New York 2010)
Brissenden v. Time Warner Cable (New York Supreme Court 2009)
Yeger v. ETrade Securities LLC (Appellate Division of the Supreme Court of New York 2008)
Alix v. Wal-Mart Stores, Inc. (Appellate Division of the Supreme Court of New York 2008)
Globe Surgical Supply v. GEICO Insurance (Appellate Division of the Supreme Court of New York 2008)
Pavlou v. City of New York (N.Y. 2007)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

*981In a prior motion to dismiss the causes of action based upon General Business Law § 349 (h), defendant argued that a class action was not maintainable, even for actual damages, because under CPLR 901 (b) the representative plaintiff would be required to waive the class members’ right to seek a penalty or the statutorily prescribed minimum damages (General Business Law § 349 [h]; see, e.g., Klapak v Pappas, 79 AD2d 602). Although the trial court at that time denied both defendant’s motion and plaintiff’s cross motion for an order certifying a class action, it expressly rejected defendant’s argument, holding that plaintiff was entitled to seek class relief if certain conditions not relevant here were satisfied. On defendant’s appeal, the Appellate Division affirmed the trial court’s order, without opinion.

Plaintiff’s renewed motion for an order allowing the class action was subsequently denied by the trial court on the ground that the cost of identifying and notifying the class members would be unduly burdensome to defendant. On plaintiff’s appeal, the Appellate Division disagreed with this conclusion and reversed, permitting the action to be prosecuted in the form of a class action. Thereafter, the Appellate Division granted defendant leave to appeal to this court, certifying the following question: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?”

Defendant’s contention that, as a matter of law, a class action for actual damages under General Business Law § 349 may not be maintained was determined against it by the prior nonfinal Appellate Division order. The correctness of that prior order is not reviewable in this appeal from a second nonfinal Appellate Division order, even though the former may have necessarily affected the latter (see, CPLR 5501 [a] [1]). Thus, the only question before us is whether, assuming a class action is available, the Appellate Division abused its discretion in permitting this action to proceed in that form (see, Herrick v Second Cuthouse, 64 NY2d 692, 693; Brady v Ottaway Newspapers, 63 NY2d 1031, 1032-1033).

We conclude that there was no abuse of discretion here. The Appellate Division weighed all of the relevant factors (CPLR 901, 902) and, in contrast to the trial court, found that prosecution of the claims in class action form was "superior to *982other available methods for the fair and efficient adjudication of the controversy” (CPLR 901 [a] [5]). We see no reason to disturb that inherently discretionary determination.

Chief Judge Wachtler and Judges Simons, Alexander, Titone, Hancock, Jr., and Bellacosa concur in memorandum; Judge Kaye taking no part.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, etc.

Case-law data current through September 30, 2026. Source: CourtListener bulk data.