Giovanniello v. Carolina Wholesale Office Machine Company, Inc.

• Decision Date: 16 May 2006
• Docket Number: 2004-10868.,2006-04498.
• Citation: 29 A.D.3d 737,815 N.Y.S.2d 248,2006 NY Slip Op 03842
• Parties: RAYMOND GIOVANNIELLO, Appellant, v. CAROLINA WHOLESALE OFFICE MACHINE COMPANY, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

29 A.D.3d 737

815 N.Y.S.2d 248

2006 NY Slip Op 03842

RAYMOND GIOVANNIELLO, Appellant, v. CAROLINA WHOLESALE OFFICE MACHINE COMPANY, INC., Respondent.

2004-10868.

2006-04498.

Appellate Division of the Supreme Court of the State of New York, Second Department.

May 16, 2006.

In a putative class action, inter alia, to recover damages for violation of the Telephone Consumer Protection Act (47 USC § 227), the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (McCarty III, J.), dated November 23, 2004, as denied his motion for class certification pursuant to CPLR article 9. The appeal brings up for review so much of an order of the same court dated January 31, 2005, as, upon reargument, adhered to the original determination (see CPLR 5517 [b]).

Ordered that the appeal from the order dated November 23, 2004 is dismissed, as the portion of the order appealed from was superseded by the order dated January 31, 2005, made upon reargument; and it is further,

Ordered that the order dated January 31, 2005 is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendant.

For the reasons set forth in Rudgayzer & Gratt v Cape Canaveral Tour & Travel, Inc. (22 AD3d 148 [2005]), a class action may not be maintained in this case (see CPLR 901 [b]; Weber v Rainbow Software, Inc., 21 AD3d 411 [2005]; Giovanniello v Hispanic Media Group USA, Inc., 21 AD3d 400 [2005]; Ganci v Cape Canaveral Tour & Travel, Inc., 21 AD3d 399 [2005]; Bonime v Bridge 21, Inc., 21 AD3d 393 [2005]; Bonime v Discount Funding Assoc., Inc., 21 AD3d 393 [2005]). Moreover, since a motion for leave to reargue "does not offer an unsuccessful party, as here, successive opportunities to present arguments not previously advanced" (Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d 434, 436 [2005]), the plaintiff's argument that CPLR 901 (b) does not prohibit maintenance of a class action seeking injunctive relief, which was not presented in the original motion before the Supreme Court, was not properly raised in the motion for leave to reargue (see Amato v Lord & Taylor, Inc., 10 AD3d 374, 375 [2004]).

Florio, J.P., Luciano, Spolzino and Fisher, JJ., concur.