Holmes v. Perales

175 A.D.2d 797

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 5, 1991
• Status: Published

Opinion

— In an action, inter alia, for a judgment declaring that the schedule of minimum shelter allowances in Suffolk County is invalid, the defendants separately appeal, as limited by their notices of appeal and briefs, from (1) so much of an order of the Supreme Court, Suffolk County (Orgera, J.), entered December 22, 1988, as denied the motion of the defendant Perales, in which the defendant Bartsch joined, pursuant to CPLR 3211 (a) (7), to dismiss the complaint for failure to state a cause of action, and granted that branch of the plaintiff Renita Holmes’ motion which was for certain preliminary injunctive relief, and (2) stated portions of an order of the same court (Namm, J.), dated July 20, 1989, which, inter alia, upon reargument, granted that branch of the plaintiff’s motion which was for certification of the complaint as a class action; and the plaintiff Holmes cross-appeals from so much of the order entered December 22, 1988, as denied that branch of her motion which was for certification of the complaint as a class action.

Ordered that the cross appeal is dismissed, without costs or disbursements, as the provision of the order entered December 22, 1988, cross-appealed from was superseded by the order dated July 20, 1989, made upon reargument which granted class action certification; and it is further,

Ordered that the order entered December 22, 1988, is affirmed insofar as appealed from, without costs or disbursements (see, Sharp v Perales, 175 AD2d 800 [decided herewith]); and it is further,

Ordered that the order dated July 20, 1989, is modified, on the law, by (1) deleting from the first decretal paragraph the provision that granted that branch of the plaintiff Holmes’ motion which was for certification of the complaint as a class action and substituting therefor a provision denying that branch of the motion, (2) deleting from the third decretal paragraph thereof the words "as a member of the class”, (3) deleting from the fourth, fifth, sixth, seventh and eighth decretal paragraphs the following words "and all others similarly situated who were members of the holmes class”, and (4) deleting from the ninth decretal paragraph the following words, "and who are members of the holmes class”; and as so modified, the order dated July 20, 1989, is affirmed insofar as appealed from, without costs or disbursements (see, Sharp v Perales, supra). Thompson, J. P., Bracken, Lawrence and Eiber, JJ., concur.