Giovanniello v. Hispanic Media Group Usa, Inc.

• Decision Date: 08 August 2005
• Docket Number: 2004-06073.
• Parties: RAYMOND GIOVANNIELLO, Appellant, v. HISPANIC MEDIA GROUP USA, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

21 A.D.3d 400

799 N.Y.S.2d 800

2005 NY Slip Op 06302

RAYMOND GIOVANNIELLO, Appellant, v. HISPANIC MEDIA GROUP USA, INC., Respondent.

2004-06073.

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

August 8, 2005.

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 (Jonas, J.), dated May 27, 2004, as, upon granting the defendant's motion for a protective order, in effect, struck the class action allegations and associated class action relief from the complaint and transferred the resulting individual action to the Nassau County District Court.

Ordered that the order is modified, on the law, by deleting the provision thereof transferring the action to the Nassau County District Court; as so modified, the order is affirmed insofar as appealed from, with costs payable to the defendant.

For the reasons set forth in Rudgayzer & Gratt v. Cape Canaveral Tour & Travel, Inc. (22 AD3d 148 [2005] [decided herewith]), a class action may not be maintained in this case (see CPLR 901 [b]).

Nevertheless, because the equitable relief sought by the plaintiff in his individual capacity is not within the limited jurisdiction of the Nassau County District Court (see Uniform District Court Act §§ 202, 209 [b]; CPLR 325 [d]; Palmieri v. C.J. Meat Ctr., 2 Misc 3d 127[A], 2003 NY Slip Op 51683[U]), the action should not have been transferred to that court. [See 4 Misc 3d 440 (2004).]

Adams, J.P., Krausman, Fisher and Lifson, JJ., concur.