Kensington Gate Owners, Inc. v. Kalikow

99 A.D.2d 506, 471 N.Y.S.2d 11, 1984 N.Y. App. Div. LEXIS 16706

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 16, 1984
• Status: Published

Opinion

In an action to recover damages for breach of contract and fraudulent representations, plaintiffs appeal from an order of the Supreme Court, Nassau County (Morrison, J.), entered December 1, 1982, which denied their motion for class action certification. Order affirmed, without costs or disbursements. CPLR 902 provides that the plaintiff “shall move for an order” to determine whether an action is to be maintained as a class action, “[wjithin sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action”. The motion for class action certification herein was not made until over four years had passed since joinder of issue. Under these circumstances, Special Term did not err in denying the motion for class action certification (O’Hara v Del Bello, 47 NY2d 363; Matter of Shook v Lavine, 49 AD2d 238; CPLR 902, subd 4). Titone, J. P., Mangano, O’Connor and Brown, JJ., concur.