Onofrio v. Playboy Club of New York, Inc.
| Decision Date | 14 January 1965 |
| Citation | 15 N.Y.2d 740,257 N.Y.S.2d 171,205 N.E.2d 308 |
| Parties | , 205 N.E.2d 308 Joseph D. ONOFRIO et al., suing on behalf of themselves and all other members of Playboy Club of New York, Inc., similarly situated, Respondents, v. PLAYBOY CLUB OF NEW YORK, INC., Appellant, and International Playboy Clubs, Inc. et al., Defendants. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, First Department, 20 A.D.2d 3, 244 N.Y.S.2d 485.
Certain club members brought a class action against club to impose a constructive trust on the total of the membership fees paid by 50,000 members of the club and to recover damages for breach of contract whereby the club undertook to provide a private key club in New York City for the exclusive use of the 50,000 members.
The Supreme Court, Special Term, New York County, Nathaniel T. Helman, J., entered an order dismissing the second cause of action insofar as it was asserted by club members as representatives of a class, and the club members appealed.
The Appellate Division, Botein, P. J., modified the order on the law to the extent of denying the motion insofar as it was addressed to the second cause of action, affirmed the order as modified, and held that class action could be maintained for breach of contract. Stevens, J., dissented in part because of opinion that a class action could not be maintained for damages for breach of contract.
The question was certified: 'Was the order of Special Term, insofar as it struck all allegations of the second cause of action pertaining to the representative character of the action, dismissed the second cause of action as a class action, and directed each plaintiff to separately state his own cause of action, properly made?'
The club appealed to the Court of Appeals, contending that the Special Term properly eliminated the allegations of the complaint pertaining to a class action and that a class action in the circumstances would violate due process.
Milton Pollack, New York City (Milton Pollack, Samuel N. Greenspoon and Francis E. Koch, New York City, of counsel), for defendant-appellant.
Lo Frisco, Kousi & McCabe, New York City (Anthony F. Lo Frisco, Paul A. Victor, John D. Kousi and Donald G. McCabe, New York City, of counsel), for respondents.
Order reversed, with costs in this Court and in the Appellate Division, and that of Special Term reinstated upon the dissenting opinion at the Appellate Division. Question certified answered in the affirmative.
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