Ballen v. Anne Storch International Asti Tours, Inc.

46 A.D.2d 643, 360 N.Y.S.2d 436, 1974 N.Y. App. Div. LEXIS 3758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1974
• Status: Published

Opinion

Order, Supreme Court, New York County, entered on February 6,1974, denying appellant’s motion to dismiss the complaint herein for failure to state a cause of action, or for alternative relief, unanimously modified, on the law, to the extent of striking from the complaint those portions which refer to the representative character of the action arid otherwise affirmed, without costs and without disbursements. The complaint attempts to allege a class action on behalf of all participants in a specific tour and on behalf of all others who arranged tours which were “ under the management of * * * and similarly mis-managed ” by appellant. The complaint, in three causes of action, charges appellant with “ breaches of the agreement” (par. 21) and alleges that it “falsely and fraudulently” (par. 22) and “negligently and maliciously” (par. 27) represented to the plaintiffs the flight times, accommodations and services which were to be supplied. Such pleading, insofar as it purports to allege a class action, is insufficient, in that the requisite unity of interest is lacking. (Society Milion Athena v. National Bank of Greece, 281 N. Y. 282, 293; Hall v. Coburn Corp. of Amer., 26 N Y 2d 396.) Moreover, claims of fraud and misrepresentation do not form a' proper basis for a class action. (Greeley v. Bockatoay Point Development Corp., 15 A D 2d 528.) Whether or .not the requisite reliance exists is subjective with each individual plaintiff. Settle order on notice. Concur — Markewich, J. P., Kupferman, Steuer, Tilzer and Capozzoli, JJ.