Becker v. Empire of America Federal Savings Bank

155 A.D.2d 923, 547 N.Y.S.2d 745, 1989 N.Y. App. Div. LEXIS 14775

Opinion

— Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The court erred in granting plaintiffs’ motion for class certification of a plaintiffs’ class, pursuant to CPLR 902, for the cause of action seeking statutory interest on escrow accounts for the period between discharge of mortgages and payment of the account balance to the mortgagors. That motion was made in response to defendants’ motion to dismiss. Without responsive pleadings, precertification discovery or the benefit of a "mini-hearing”, and without enabling defendants to contest class certification on the merits, that order was premature (see, Chimenti v American Express Co., 97 AD2d 351, mot to dismiss appeal granted 61 NY2d 669; see also, Katz v NVF Co., 100 AD2d 470, 473-474) and therefore is reversed, without prejudice. (Appeals from order of Supreme Court, Erie County, Ostrowski, J. — dismiss complaint; class certification.) Present — Denman, J. P., Green, Pine, Balio and Lawton, JJ.