Astil v. Kumquat Properties, LLC

125 A.D.3d 522, 4 N.Y.S.3d 179

Opinion

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered November 22, 2013, which, in this action alleging personal property damage, granted plaintiffs motion to voluntarily discontinue the action, with prejudice as to the named plaintiff and without prejudice as to all other similarly situated plaintiffs, and denied as moot defendants’ motion for partial summary judgment dismissing the proposed class action claims with prejudice, unanimously affirmed, with costs.

The motion court providently exercised its discretion in granting plaintiffs motion to discontinue this action (see Tucker v Tucker, 55 NY2d 378, 383 [1982]; Burnham Serv. Corp. v National Council on Compensation Ins., 288 AD2d 31, 32 [1st Dept 2001]).

Given the foregoing determination, the motion court properly denied as moot defendants’ motion for partial summary judgment dismissing the proposed class action claims with prejudice. As the motion court noted, even if it had granted defendants’ motion on the ground that plaintiff failed to seek class certification within the time required by CPLR 902, the determination would apply only to the named plaintiff and would not bar other potential class members from bringing an action and seeking class certification (see Huebner v Caldwell & Cook, 139 Misc 2d 288, 292 [Sup Ct, Monroe County 1988] [“when a class is not certified, unnamed plaintiffs are not subject to res judicata effects of judicial decisions pertaining to the class”]).

We have considered defendants’ remaining arguments and find them unavailing.

Concur — Friedman, J.P., Andrias, Moskowitz, DeGrasse and Richter, JJ.