Dupack v. Nationwide Leisure Corp.
| Decision Date | 31 May 1979 |
| Citation | 70 A.D.2d 568,417 N.Y.S.2d 63 |
| Parties | Mildred DUPACK et al., Plaintiffs-Appellants, v. NATIONWIDE LEISURE CORPORATION et al., Defendants, Nationwide Leisure Corporation et al., Defendants-Respondents. |
| Court | New York Supreme Court — Appellate Division |
T. A. Dickerson, New York City, for plaintiffs-appellants.
P. M. Kazin, New York City, for defendants-respondents.
Before BIRNS, J. P., and FEIN, SANDLER, SILVERMAN and ROSS, JJ.
Order, Supreme Court, New York County, entered February 14, 1979, denying plaintiffs' motion to certify the action as a class action and for partial summary judgment on the issue of liability on the second cause of action for breach of contract against defendants Nationwide Leisure Corporation and Stuart Graff, and granting said defendants' cross-motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny the cross-motion for summary judgment as to plaintiff Mildred Dupack against Nationwide Leisure Corp. on all causes of action and against Stuart Graff on the first cause of action and otherwise affirmed, without costs or disbursements on the appeal, without prejudice to renewal of the motions for summary judgment after completion of discovery proceedings and to renewal of plaintiff's motion for class action certification after conduct of sufficient disclosure to ascertain the facts in relation to the nature and size of the class.
The action was commenced by plaintiffs, who purport to represent persons who contracted with Nationwide in planning a one week charter tour to Munich, Germany during the period from April 1, 1977 through October 28, 1977. Plaintiffs assert that the class sought to be certified consists of approximately 4,000 persons who took the 31 charter tours to Munich during that period of time. The complaint, with causes of action sounding in fraudulent misrepresentation and breach of contract, alleges that a brochure circulated by defendants offered accommodation for seven nights at the "new Superior First Class Holiday Inn, or similar" located "in the heart of Schwabing". Plaintiff Mildred Dupack claims that upon arrival in Munich, she and her husband were advised that the Holiday Inn had no rooms and, accordingly, arrangements were made for her to stay at the Europa Hotel, "an inferior hotel" located "in a slum area of Munich which was unsafe, dirty and seedy and . . . not centrally located to that portion of Munich wherein the Holiday Inn was located." It is claimed that other members of the tour group were sent to various inferior hotels in substitution for the promised accommodations.
In opposition to plaintiffs' motion for summary relief, defendants claimed that accommodations at the Europa were similar to those available at the Holiday Inn, that both are well maintained, located...
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