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ANN J. O'BRIEN v. PROVIDENT LOAN SOCIETY NEW YORK (07/18/69)
CIVIL COURT OF THE CITY OF NEW YORK, QUEENS COUNTY
1969.NY.42640 <http://www.versuslaw.com>; 302 N.Y.S.2d 889; 60 Misc. 2d 506
July 18, 1969
ANN J. O'BRIEN, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,v.PROVIDENT LOAN SOCIETY OF NEW YORK, DEFENDANT
Scalzi McGarvey & Steele (Spencer Steele of counsel), for plaintiff.
Rein, Mound & Cotton (Arthur N. Brook of counsel), for defendant.
Leonard L. Finz, J.
On this rather unique motion, plaintiff seeks the following multiple relief:
a. To stay all persons represented by plaintiff in the instant action from bringing any other action against defendant on causes of action similar to that stated in said action.
b. To direct defendant to send, to all persons making claim against it on such causes of action, a copy of the order to be entered hereon, directing the Clerk of the Civil Court of the City of New York not to file any summons and complaint in any other action stating such cause of action under a separate index number, but to file the same under the index number of the instant action and to send a copy of the order to be entered hereon to the filer thereof.
c. To direct the defendant to appear for examination before trial at the Civil Court on the ground that the number of claims and the identity of the issues require that an orderly procedure be established to determine defendant's liability. d. To direct the filing of claims and to provide for the payment of disbursements and attorney's fees.
Plaintiff in a rather novel and imaginative proceeding has purported to institute a class action on behalf of herself and many others who are alleged to be similarly situated. She has served a complaint asserting one cause of action against defendant, alleging negligence in the loss of certain property belonging to herself and to the members of the class whom she would purport to represent. The complaint alleges that, upon information and belief, the members of the class number 2,500 and the value of the property lost is $4,000,000, of which plaintiff's own interest is $1,000.
The defendant opposes the motion of plaintiff and, additionally, has cross-moved to dismiss the complaint:
1. Pursuant to CPLR 3211 (subd. [a], par. 3) on the ground that plaintiff lacks legal capacity to bring a representative action on behalf of the other persons whose property may have been lost;
2. Pursuant to CPLR 3211 (subd. [a], par. 7) for failure to state a cause of action.
The cross motion also seeks dismissal of such portion of plaintiff's complaint as attempts to constitute a class action, upon the grounds that the Civil Court does not have monetary jurisdiction of the subject matter thereof.
The facts, which might well serve as the theme of any motion picture or television script, are as follows:
On February 17, 1969, the Provident Loan Society of New York,*fn* at its branch loaning office at 168-32 Hillside Avenue, Jamaica, New York, was invaded by robbers armed with and brandishing pistols. The robbers handcuffed the society's employees under threats of harm and under cover of the pistols. They then proceeded to steal a quantity of collateral being held in the vault. After gathering their loot, they fled. Within minutes, one of the employees was able to break a link in her handcuffs, and pressed an alarm button. (The estimated value of the stolen collateral may be as high as $4,000,000, and the number of pledgors whose property was stolen may be close to 2,500.) Following the robbery of February 17, 1969, a number of the pledgors instituted lawsuits for the loss of their property. A number of those lawsuits are pending in this court, several are pending in the Civil Court, New York County, and one, seeking recovery of $20,000, is pending in the Supreme Court, Nassau County.
In the instant action the plaintiff asserts one single cause of action on behalf of herself and as the representative of all other pledgors whose property may have been stolen from the defendant on February 17, 1969. That cause of action alleges the value of the stolen collateral to be some $4,000,000, with the individual plaintiff's interest therein being $1,000. The thrust of the complaint is to the effect that the plaintiff has appointed herself the representative of some 2,500 pledgors and that she in effect seeks recovery of some $4,000,000 on their behalf.
Plaintiff, in asserting that a properly maintainable class action has been brought, relies upon CPLR 1005 ...