

Astil v Kumquat Props., LLC (2015 NY Slip Op 01544)





Astil v Kumquat Props., LLC


2015 NY Slip Op 01544


Decided on February 19, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 19, 2015

Friedman, J.P., Andrias, Moskowitz, DeGrasse, Richter, JJ.


14285 151650/13

[*1] Joseph Astil, etc., Plaintiff-Respondent,
vKumquat Properties, LLC, et al., Defendants-Appellants.


Kerley, Walsh, Matera & Cinquemani, PC, Seaford (Lauren B. Bristol of counsel), for appellants.
Imbesi Christensen, New York (Jeanne Christensen of counsel), for respondent.

Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered November 22, 2013, which, in this action alleging personal property damage, granted plaintiff's motion to voluntarily discontinue the action, with prejudice as to the named plaintiff and without prejudice as to all other similarly situated plaintiffs, and denied as moot defendants' motion for partial summary judgment dismissing the proposed class action claims with prejudice, unanimously affirmed, with costs.
The motion court providently exercised its discretion in granting plaintiff's motion to discontinue this action (see Tucker v Tucker , 55 NY2d 378, 383 [1982]; Burnham Serv. Corp. v National Council on Compensation Ins. , 288 AD2d 31, 32 [1st Dept 2001]).
Given the foregoing determination, the motion court properly denied as moot defendants' motion for partial summary judgment dismissing the proposed class action claims with prejudice. As the motion court noted, even if it had granted defendants' motion on the ground that plaintiff failed to seek class certification within the time required by CPLR 902, the determination would apply only to the named plaintiff and would not bar other potential class members from bringing an action and seeking class certification (see Huebner v Caldwell & Cook , 139 Misc 2d 288, 292 [Sup Ct, NY County 1988] ["when a class is not certified, unnamed plaintiffs are not subject to [*2]res judicata effects of judicial decisions pertaining to the class"]).
We have considered defendants' remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 19, 2015
CLERK


