O'Hara v. Del Bello

Citation418 N.Y.S.2d 334,391 N.E.2d 1311,47 N.Y.2d 363
Parties, 391 N.E.2d 1311 Frederick A. O'HARA, on behalf of himself and all others similarly situated, Respondent, v. Alfred B. DEL BELLO, as County Executive of the County of Westchester, et al., Appellants.
Decision Date12 June 1979
CourtNew York Court of Appeals
Samuel S. Yasgur, County Atty. (Kenneth E. Powell, Jonathan Lovett and Peter J. Holmes, White Plains, of counsel), for appellants
OPINION OF THE COURT

JONES, Judge.

An affirmance of an award of summary judgment to petitioner, granted on respondents' motion to dismiss the petition under CPLR 3211 (subd. (a), pars. 2, 7) prior to service of an answer, presents no reversible error of law in this court when it appears that the determination on the merits involved only a question of law which was argued by the parties on the motion and respondents have at no time identified or demonstrated the existence of any material factual issues. When there has been a failure to comply with the procedures and requirements of CPLR article 9 for determination of class action status for the litigation, however, class action relief is not available.

In this proceeding, in which officials of Westchester County have been directed by the courts below to honor and pay travel vouchers properly certified and presented to the county for payment for the period November, 1975 to April 1, 1977, the order of the Appellate Division must be modified to limit to the named petitioner, a court stenographer of the Supreme Court for the Ninth Judicial District, the relief that has been granted.

The proceeding was commenced on or about February 18, 1977 by the individual petitioner "on behalf of himself and all others similarly situated" the others described as Supreme Court reporters in Westchester County who had been denied payment of their authorized and approved travel vouchers by the county pursuant to CPLR article 78 for a judgment directing payment of properly certified travel vouchers, past and future. On the return day of the petition, March 24, 1977, respondents, county officials, without having served an answer, moved to dismiss the petition on the ground that petitioner had failed to exhaust administrative remedies available to him and that "No cause of action has been established" against respondents. Following oral argument and submission of supporting and opposing affidavits, on May 18, 1977 the Justice at Special Term granted judgment denying the motion to dismiss and directing payment by them of all properly certified travel vouchers presented for the period from November, 1975 to April 1, 1977. No determination was included in the judgment whether the proceeding could be maintained as a class action and no order so determining was otherwise issued.

On July 21, 1977 the county officials moved for reargument of the judgment on the grounds that they had not been given notice that the court might treat the motion to dismiss as one for summary judgment and had not been afforded an opportunity to serve an answer and that no determination had ever been made regarding the propriety of maintaining a class action. Petitioner did not oppose the making of the motion for reargument but by responsive affidavit sought to justify and uphold Special Term's award of affirmative relief in his favor prior to service of an answer on the ground that only an issue of law on undisputed facts was presented, and to sustain the treatment of the proceeding as a class action as a discretionary, Sua sponte determination by the court. The reply affidavit submitted on behalf of the county officials, although stating that there were issues of fact not yet before the court, failed to identify any such issue. The affidavit originally served with the notice of motion for reargument had been devoid even of an allegation of the existence of factual issues. It had however specified respects in which there had been failure of compliance with CPLR article 9 (the class action article) namely, that no hearing had been held to determine the applicability of class relief, no order had ever been issued permitting the class action and no definitive description of the class had ever been made, either during the pendency of the proceeding or in the judgment, all as required by CPLR 901, 902, 903 and 905.

The motion for reargument was granted, but the court adhered to its previous decision, stating that only a question of law had been posed by the litigation and that the matter had been so argued by the county officials themselves. It added the observation that the class to which the ruling applied is small and their identities a matter of record namely, the official court reporters of the Ninth Judicial District. The Appellate Division, 62 A.D.2d 1034, 404 N.Y.S.2d 34 affirmed Special Term's order on the motion for reargument.

With respect to respondents' claim that, absent notice as prescribed by CPLR 3211 (subd. (c)), summary judgment should not have been granted to petitioner on their motion to dismiss the petition under paragraphs 2 and 7 of subdivision (a) of that section, we note that there were no disputed questions of fact, that none were identified when their motion for reargument was entertained, and that the sole issue was one of statutory construction on which rested the right to reimbursement from the county of travel expenses incurred by a court stenographer, the precise question fully addressed by the parties on the motion to dismiss. Additionally, the county officials have failed to show how they have been prejudiced by their failure to receive notice under subdivision (c). In these circumstances we cannot say that it was error as a matter of law for the Appellate Division to have affirmed the summary judgment granted below.

Inasmuch as there was a failure to comply with the procedural and substantive provisions of CPLR article 9 with respect to class action, however, there is no basis for granting relief other than to the individual party who brought the proceeding. Accordingly, the order of the Appellate Division should be modified to limit the relief to the named petitioner.

We cannot accept the proposal advanced by the dissenter that the case should now be remitted to Special Term for a determination under CPLR article 9 whether a class action may be maintained a procedure which is not suggested by petitioner himself. The explicit design of article 9, as of rule 23 of the Federal Rules of Civil Procedure, the general scheme of which it incorporates, is that a determination as to the appropriateness of class action relief shall be promptly made at the outset of the litigation. The commentary accompanying the class action legislation sponsored by the Judicial Conference which was substantially enacted as article 9 by chapter 207 of the Laws of 1975 included the statement: "Proposed section 902 would adopt the federal policy of determining, at least tentatively, the propriety of maintaining a class action in the initial stages of the proceedings" (Twenty-first Ann. Report of N.Y.Judicial Conference, 1976, p. 252). Of particular significance, too, is the sentence in the Judicial Conference Report which follows that just quoted: "A wide range of discretion would enable the court to vary the order At any time before reaching a decision on the merits." (Id.; emphasis added.) Also notable is the fact that, when section 902 was enacted by the Legislature it specified in even more explicit language than did its Federal counterpart (Fed.Rules Civ.Proc., rule 23, subd. (c), par. (1)) the latter being the form proposed by the Judicial Conference the time for class action status determination. Whereas the Federal rule and the Judicial Conference proposal provided that the determination shall be made "As soon as practicable after the commencement of the action", section 902 as enacted requires that the plaintiff shall move for an order to determine class action status within 60 days after time for service of defendant's responsive pleading has expired clearly a time early in the litigation and one contemplating address to the issue whether the litigation shall proceed as a class action well before any determination on the merits of the action. *

To countenance making the determination as to the identity of the beneficiaries on whose behalf the litigation had been prosecuted or defended after its outcome is known would be to open the possibility both of conferring a gratuitous benefit on persons who have not been parties and were not at any time exposed to the risk of an adverse adjudication and further of substantially...

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