Gerwin & Ehrenclou v. 964 Third Avenue Associates

90 A.D.2d 712, 455 N.Y.S.2d 637, 1982 N.Y. App. Div. LEXIS 18885

Opinion

Order, Supreme Court, New York County (Price, J.), entered June 10, 1982, which granted plaintiff’s motion to permit the action to proceed as a class action, defined the class and fixed the terms of notice to the class, unanimously reversed, on the law and the facts and in the exercise of discretion, and motion denied, without costs, and without prejudice to renewal by plaintiff upon presentation of further factual evidence. Plaintiff is a commercial tenant of the subject’ premises, a 39-story building, and brought this action against the landlord and its general partners alleging, inter alia, fraudulent overcharge under rent escalation clauses in the premises’ leases. The moving affidavit is vague and lacking in detail as to the alleged fraudulent and improper practices of the landlord. It makes an inadequate showing of the existence of a class, providing only conclusory allegations that the other tenants in the building have standard leases, whereas there are indications of some disparities in the pertinent provisions. Plaintiff has not met its burden of giving evidentiary support to its contention that the class exists and that the prerequisites are met. Concur — Carro, J. P., Asch, Silverman and Milonas, JJ.