Maxine Jennings v. Domestic Finance Corp.

55 A.D.2d 832, 390 N.Y.S.2d 316, 1976 N.Y. App. Div. LEXIS 15646

Opinion

Order unanimously modified in accordance with memorandum and, as modified, affirmed, without costs. Memorandum: Special Term erred in dismissing the summons and complaint on the ground that plaintiffs should have commenced a special proceeding pursuant to section 47-e of the Personal Property Law. The relief afforded by that section is the vacation of a wage assignment, and plaintiffs have specifically denied that they seek such relief despite the fact that it may be available to them. Since defendant makes no claim that the complaint fails to state a cause of action, we refrain from reaching that issue. Plaintiffs’ motion for an order to maintain this as a class action was properly denied. Their mere conclusory allegation of the prerequisites contained in CPLR 901 (subd a) does not, on this record, furnish a sufficient basis upon which to predicate an order allowing a class action. Plaintiffs have made no effort to meet their burden of proving that a class action is appropriate (see 2 Weinstein-Korn-Miller, NY Civ Prac, par 902.02; see, also, Albertson’s, Inc. v Amalgamated Sugar Co., 503 F2d 459, 463). (Appeal from order of Onondaga Supreme Court—dismiss complaint.) Present—Marsh, P. J., Mahoney, Dillon, Goldman and Witmer, JJ.