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Globe Surgical Supply v. Allstate Insurance Co.

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


April 21, 2009

GLOBE SURGICAL SUPPLY, AS ASSIGNEE OF CHARLES CHARLOTIN, ETC., APPELLANT,
v.
ALLSTATE INSURANCE COMPANY, RESPONDENT.

In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered April 26, 2007, as denied that branch of its motion which was to certify a class pursuant to CPLR article 9.

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.

PETER B. SKELOS, J.P., STEVEN W. FISHER, HOWARD MILLER, RANDALL T. ENG, JJ.

(Index No. 9018/04)

DECISION & ORDER

ORDERED that the order is modified, on the law and in the exercise of discretion, by adding the words "without prejudice to renewal of the motion" following the words "class action certification is DENIED"; as so modified, the order is affirmed, with costs to the plaintiff.

This action is in all material respects identical to Globe Surgical Supply v GEICO Ins. Co. (59 AD3d 129). As in that case, and for the reasons stated therein, Globe Surgical Supply, as assignee of Charles Charlotin, met all of the class certification prerequisites in the instant matter except adequacy of representation (see CPLR 901[a][4]). Accordingly, that branch of its motion which was to certify a class action should have been denied without prejudice to renewal (see Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129).

SKELOS, J.P., FISHER, MILLER and ENG, JJ., concur.

20090421

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