Giovanniello v. Hispanic Media Group USA, Inc.

Appellate Division of the Supreme Court of New York

Giovanniello v. Hispanic Media Group USA, Inc.

21 A.D.3d 400, 799 N.Y.S.2d 800

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 8, 2005

StatusPublished

Cited by2 cases

This text of 21 A.D.3d 400 (Giovanniello v. Hispanic Media Group USA, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Giovanniello v. Hispanic Media Group USA, Inc., 21 A.D.3d 400, 799 N.Y.S.2d 800 (N.Y. Ct. App. 2005).

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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 his brief, from so much of an order of the Supreme Court, Nassau County (Jonas, J.), dated May 27, 2004, as, upon granting the defendant’s motion for a protective order, in effect, struck the class action allegations and associated class action relief from the complaint and transferred the resulting individual action to the Nassau County District Court.

Ordered that the order is modified, on the law, by deleting the provision thereof transferring the action to the Nassau County District Court; as so modified, the order is affirmed insofar as appealed from, with costs payable to the defendant.

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]).

Nevertheless, because the equitable relief sought by the plaintiff in his individual capacity is not within the limited jurisdiction of the Nassau County District Court (see Uniform District Court Act §§ 202, 209 [b]; CPLR 325 [d]; Palmieri v C.J. Meat Ctr., 2 Misc 3d 127[A], 2003 NY Slip Op 51683[U]), the action should not have been transferred to that court. Adams, J.P., Krausman, Fisher and Lifson, JJ., concur. [See 4 Misc 3d 440 (2004).]

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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 his brief, from so much of an order of the Supreme Court, Nassau County (Jonas, J.), dated May 27, 2004, as, upon granting the defendant’s motion for a protective order, in effect, struck the class action allegations and associated class action relief from the complaint and transferred the resulting individual action to the Nassau County District Court.

Ordered that the order is modified, on the law, by deleting the provision thereof transferring the action to the Nassau County District Court; as so modified, the order is affirmed insofar as appealed from, with costs payable to the defendant.

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]).

Nevertheless, because the equitable relief sought by the plaintiff in his individual capacity is not within the limited jurisdiction of the Nassau County District Court (see Uniform District Court Act §§ 202, 209 [b]; CPLR 325 [d]; Palmieri v C.J. Meat Ctr., 2 Misc 3d 127[A], 2003 NY Slip Op 51683[U]), the action should not have been transferred to that court. Adams, J.P., Krausman, Fisher and Lifson, JJ., concur. [See 4 Misc 3d 440 (2004).]

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Bluebook (online)

21 A.D.3d 400, 799 N.Y.S.2d 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giovanniello-v-hispanic-media-group-usa-inc-nyappdiv-2005.

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