737 N.Y.S.2d 4 | N.Y. App. Div. | 2002
Order, Supreme Court, New York County (Helen Freedman, J.), entered October 12, 2000, which, in an action under General Business Law § 340 (the Donnelly Act), insofar as appealed from, denied plaintiffs’ motion for class certification, unanimously affirmed, without costs.
Private persons cannot bring a class action under the Donnelly Act because the treble damages remedy provided in General Business Law § 340 (5) is a “penalty” within the meaning of CPLR 901 (b), the recovery of which in a class action is not specifically authorized and the imposition of which cannot be waived (Rubin v Nine W. Group, 1999 NY Misc LEXIS 655, *10-14, 1999 WL 1425364, *4-5 [Sup Ct, Westchester County, John DiBlasi, J.]; Russo & Dubin v Allied Maintenance Corp., 95 Misc 2d 344, 348-349 [Sup Ct, NY County, Hilda Schwartz, J., 1978]; Blumenthal v American Socy. of Travel Agents, 1977 WL 18392, *3 [Sup Ct, NY County, Arnold Féin, J.]; see also, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C901:7; Cox v Microsoft Corp., 290 AD2d