Sharp v. Perales

175 A.D.2d 800, 573 N.Y.S.2d 410, 1991 N.Y. App. Div. LEXIS 10797

• 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 the defendants’ practice of failing to supplement shelter allowances is invalid, and for injunctive relief, the defendants separately appeal from so much of an order of the Supreme Court, Suffolk County (Orgera, J.), entered November 16, 1988, as denied their motions pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action, and granted those branches of the plaintiff’s motion which were for certification of the complaint as a class action, and certain preliminary injunctive relief.

Ordered that the order is modified, on the law, by deleting the second decretal paragraph which granted that branch of the plaintiff’s motion which was for certification of the complaint as a class action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

As conceded by the appellant Perales, the complaint which, inter alia, challenged the adequacy of the shelter allowance schedule, pursuant to 18 NYCRR 352.3 (a) and 352.7 (g), states a cause of action (see, Jiggetts v Grinker, 75 NY2d 411).

However, we agree with the appellants that under the circumstances herein, certification of the complaint as a class action is unnecessary (see, Matter of Jones v Berman, 37 NY2d 42, 57; Jiggetts v Grinker, 148 AD2d 1, 21, revd on other grounds 75 NY2d 411, 414, n 2, supra; cf., Allen v Blum, 58 NY2d 954, 956; Tindell v Koch, 164 AD2d 689).

The appellants’ remaining contentions are without merit. Thompson, J. P., Bracken, Lawrence and Eiber, JJ., concur.