Canavan v. Chase Manhattan Bank, N.A.

• Decision Date: 23 December 1996
• Parties: William A. CANAVAN, etc., Respondent, v. CHASE MANHATTAN BANK, N.A., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 916

651 N.Y.S.2d 916

234 A.D.2d 493

William A. CANAVAN, etc., Respondent, v. CHASE MANHATTAN BANK, N.A., Appellant.

Supreme Court of New York, Appellate Division Second Department.

Dec. 23, 1996.

Newman & Company, P.C., New York City (Thomas R. Newman and Barry T. Bassis, of counsel), for appellant.

Welby & Brady, LLP, White Plains (William Nathaniel Carroll, of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the defendant's method of calculating interest is contrary to the terms of the plaintiff's mortgage loan agreement, the defendant appeals from an order of the Supreme Court, Westchester County (Barone, J.), entered July 12, 1995, which granted the plaintiff's motion for class action certification pursuant to CPLR article 9. The appeal brings up for review so much of an order of the same court, entered October 25, 1995, as upon reargument, adhered to the original determination (CPLR 5517[b] ).

ORDERED that the appeal from the order entered July 12, 1995, is dismissed, as that order was superseded by the order entered dated October 25, 1995, made upon reargument; and it is further,

ORDERED that the order entered October 25, 1995, is reversed insofar as reviewed, on the law, the order entered July 12, 1995, is vacated, and the plaintiff's motion for class action certification pursuant to CPLR article 9 is denied; and it is further,

ORDERED that the defendant is awarded one bill of costs.

In order to determine whether an action may proceed as a class action, the court shall consider whether the class is so numerous that joinder of all members is impracticable; whether common questions of law and fact predominate; whether the plaintiff's claim is typical of the class; whether the plaintiff will fairly and adequately protect the interests of the class; and whether a class action is the superior method for the fair and efficient adjudication of the controversy (see, CPLR 901[a] ). The plaintiff bears the burden of establishing that the class exists and that the prerequisites are met (see, Brady v. State of New York, 172 A.D.2d 17, 24-25, 576 N.Y.S.2d 896; Askey v. Occidental Chem. Corp., 102 A.D.2d 130, 137, 477 N.Y.S.2d 242; 2 Weinstein-Korn-Miller, NYCivPrac p 901.08). Here, the plaintiff's general, conclusory allegations failed to satisfy this burden (see, Askey v. Occidental Chem. Corp., supra; Dupack v. Nationwide Leisure Corp., 70 A.D.2d 568, 417 N.Y.S.2d 63; 2 Weinstein-Korn-Miller, NYCivPrac p...