Dupack v. Nationwide Leisure Corp.

• Decision Date: 29 January 1980
• Citation: 424 N.Y.S.2d 436,73 A.D.2d 903
• Parties: Mildred DUPACK et al., Plaintiffs-Appellants, v. NATIONWIDE LEISURE CORPORATION et al., Defendants, Fidelity and Deposit Company of Maryland Inc., Defendant-Respondent. Marion KLAKIS et al., Plaintiffs-Appellants, v. NATIONWIDE LEISURE CORPORATION et al., Defendants, Fidelity and Deposit Company of Maryland Inc., Defendant-Respondent. Richard BERGER et al., Plaintiffs-Respondents, v. NATIONWIDE LEISURE CORPORATION et al., Defendants, St. Paul Fire and Marine Insurance Company, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 436

424 N.Y.S.2d 436

73 A.D.2d 903

Mildred DUPACK et al., Plaintiffs-Appellants, v. NATIONWIDE LEISURE CORPORATION et al., Defendants, Fidelity and Deposit Company of Maryland Inc., Defendant-Respondent.

Marion KLAKIS et al., Plaintiffs-Appellants, v. NATIONWIDE LEISURE CORPORATION et al., Defendants, Fidelity and Deposit Company of Maryland Inc., Defendant-Respondent.

Richard BERGER et al., Plaintiffs-Respondents, v. NATIONWIDE LEISURE CORPORATION et al., Defendants, St. Paul Fire and Marine Insurance Company, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Jan. 29, 1980.

T. A. Dickerson, New York City, for plaintiffs-appellants and plaintiffs-respondents.

H. J. Wallach, New York City, for defendant-respondent and defendant-appellant.

Before KUPFERMAN, J. P., and BIRNS, FEIN, MARKEWICH and LUPIANO, JJ.

MEMORANDUM DECISION.

7110 Order, Supreme Court, New York County, entered August 24, 1978, granting the motion of respondent Fidelity and Deposit Company of Maryland, Inc. to dismiss the complaint, is unanimously reversed on the law, without costs and without disbursements, and the motion to dismiss as against the surety is denied, and the fourth action against the surety is reinstated.

7111 Order, Supreme Court, New York County, entered August 23, 1978, granting the motion of respondent Fidelity and Deposit Company of Maryland, Inc. to dismiss the complaint, is unanimously reversed on the law, without costs and without disbursements, and the motion to dismiss as against the surety is denied, and the fourth cause of action against the surety is reinstated.

7112 Order, Supreme Court, New York County, entered September 7, 1978, denying the motion of appellant to dismiss the complaint, is unanimously affirmed, without costs.

Plaintiffs in each action purport to represent a class of consumers who contracted for separate charter tour vacations from defendants Nationwide Leisure Corporation and Stuart Graff. Plaintiffs allege breach of contract and fraudulent misrepresentation, claiming they did not receive air transportation (Klakis ) or accommodations (Dupack and Berger ) in accordance with their contract with the tour operator, Nationwide.

In Dupack, complainants contracted for a one week tour during the summer of 1977. The accommodations specified were to be a "new Superior First Class Holiday Inn. or similar" in Munich, Germany. Upon arrival, different accommodations, allegedly inferior in terms of quality and location, were substituted. An earlier review by this court of an order of Special Term denying class status (Dupack v. Nationwide Leisure Corporation, 70 A.D.2d 568, 417 N.Y.S.2d 63) held that Dupack could not represent persons who did not stay at the hotel to which she was assigned. She was granted leave to renew her motion for class status after discovery of the nature and size of that class.

In Berger, complainants contracted for a charter tour to London, England, during the summer of 1976, which also specified a particular hotel, the Kensington Close Hotel in London, or similar. As in Dupack, the substituted accommodations were alleged to be substantially inferior in quality and location, lacking facilities such as pool and sauna, and situated in remote, unsafe areas.

In Klakis, complainants contracted for a five day, four night charter tour with accommodations at a hotel in Nassau/Paradise Island, scheduled to leave from John F. Kennedy International Airport on January 22, 1978 at 6 A.M. The flight finally left at 9 A.M. January 23, 1978, but there were additional delays in transportation. Tour members were not permitted to occupy their rooms immediately upon arrival. They were compelled to give up their rooms early on the morning of the day of departure resulting in hours of inconvenience. These alleged breaches of the contract for transportation and accommodations resulted in a tour of two and a half days and three nights. As in Dupack, this court affirmed a denial of class action status with leave to renew after discovery. Klakis v. Nationwide Leisure Corporation, App.Div., 422 N.Y.S.2d 407. Here, there appear to be only twenty-one tour members who have not yet settled their claims, nor has it been shown that complaints of purported class members are the same as, or typical of those of plaintiffs.

These charter tours were organized...