Ganci v. Cape Canaveral Tour & Travel, Inc.

21 A.D.3d 399, 799 N.Y.S.2d 737, 2005 N.Y. App. Div. LEXIS 8394

Opinion

In a putative class action, inter alia, to recover damages for violation of the Telephone Consumer Protection Act (47 USC § 227), the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated January 9, 2004, as granted the motion of the defendant King’s Creek Plantation, LLC, to dismiss the complaint pursuant to CPLR 3211 (a) (7) to the extent of dismissing the class action allegations and associated class action relief insofar as asserted against it.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendant King’s Creek Plantation, LLC.

For the reasons set forth in Rudgayzer & Gratt v Cape Canaveral Tour & Travel, Inc. (22 AD3d 148 [2005] [decided herewith]), a class action may not be maintained in this case (see CPLR 901 [b]).

In light of our determination, we do not reach the remaining contention of the defendant King’s Creek Plantation, LLC. Adams, J.P., Krausman, Fisher and Lifson, JJ., concur.