Appeal No. 2 | N.Y. App. Div. | Sep 30, 1997
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Although Supreme Court properly found that the prerequisites for class action certification set forth in CPLR 901 (a) have been met, plaintiffs are barred by CPLR 901 (b) from maintaining a class action for the minimum and treble damages imposed by section 349 (h) of the General Business Law. On this appeal, however, plaintiffs consent to strike that portion of the sixth cause of action seeking that relief and to limit their demand to actual damages. Thus, CPLR 901 (b) is no longer applicable and that cause of action may be maintained as a class action (see, Super Glue Corp. v Avis Rent A Car Sys., 132 AD2d 604, 606). We therefore modify the order in accordance with the concession made by plaintiffs. We further modify the order by providing that any class member wishing to pursue statutory minimum and treble damages under the sixth cause of action may opt out of the class and bring an individual action. (Appeals from Order of Supreme Court, Monroe County, Fisher, J.—Class Action.) Present—Lawton, J. P., Hayes, Wisner, Boehm and Fallon, JJ.