Weinberg v. Hertz Corp.
| Decision Date | 07 May 1987 |
| Citation | 69 N.Y.2d 979,516 N.Y.S.2d 652,509 N.E.2d 347 |
| Parties | , 509 N.E.2d 347 Frederic E. WEINBERG, Individually and on Behalf of All Others Similarly Situated, Respondent, v. HERTZ CORPORATION, Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 116 A.D.2d 1, 499 N.Y.S.2d 693, should be affirme with costs, and the question certified answered in the affirmative.
In a prior motion to dismiss the causes of action based upon General Business Law § 349(h), defendant argued that a class action was not maintainable, even for actual damages, because under CPLR 901(b) the representative plaintiff would be required to waive the class members' right to seek a penalty or the statutorily prescribed minimum damages (General Business Law § 349[h]; see, e.g., Klapak v. Pappas, 79 A.D.2d 602, 433 N.Y.S.2d 500). Although the trial court at that time denied both defendant's motion and plaintiff's cross motion for an order certifying a class action, it expressly rejected defendant's argument, holding that plaintiff was entitled to seek class relief if certain conditions not relevant here were satisfied. On defendant's appeal, the Appellate Division affirmed the trial court's order, without opinion.
Plaintiff's renewed motion for an order allowing the class action was subsequently denied by the trial court on the ground that the cost of identifying and notifying the class members would be unduly burdensome to defendant. On plaintiff's appeal, the Appellate Division disagreed with this conclusion and reversed, permitting the action to be prosecuted in the form of a class action. Thereafter, the Appellate Division granted defendant leave to appeal to this court, certifying the following question: "Was the order of this Court, which reversed the order of the Supreme Court, properly made?"
Defendant's contention that, as a matter of law, a class action for actual damages under General Business Law § 349 may not be maintained was determined against it by the prior nonfinal Appellate Division order. The correctness of that prior order is not reviewable in this appeal from a second nonfinal Appellate Division order, even though the former may have necessarily affected the latter (see, CPLR 5501[a][1] ). Thus, the only question before us is whether, assuming a class action is available,...
To continue reading
Request your trial
-
Pludeman v. Northern Leasing Sys., Inc.
...if the prerequisites promulgated by CPLR 901(a) are met ( Weinberg v. Hertz Corp., 116 A.D.2d 1, 4, 499 N.Y.S.2d 693 [1986], affd. 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 N.E.2d 347 [1987] ). Those prerequisites are (1) that the class is so numerous that joinder of all members is impracticable......
- People v. Gaworecki
-
City of N.Y. v. Maul
...intermediate appellate court role and powers" (94 N.Y.2d at 55, 698 N.Y.S.2d 615, 720 N.E.2d 892). In Weinberg v. Hertz Corp., 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 N.E.2d 347 (1987), plaintiffs commenced an action against an automobile rental company alleging three unfair and deceptive prac......
-
Ackerman v. Price Waterhouse
... ... Lilarn Properties Corp., 84 N.Y.2d 519, 521, 620 N.Y.S.2d 310, 644 N.E.2d 1001; Cooney v. Osgood Machinery, 81 N.Y.2d 66, ... should not be denied on the ground that individual issues of reliance exist (see, Weinberg v. Hertz Corp., 116 A.D.2d 1, 7, 499 N.Y.S.2d 693, affd. 69 N.Y.2d 979, 516 N.Y.S.2d 652, 509 ... ...
-
Chapter § 5.03 FALSE, MISLEADING AND DECEPTIVE ADVERTISING IN THE TRAVEL INDUSTRY
...(failure to inform renter of additional charge imposed for out of state return of vehicle).[175] New York: Weinberg v. The Hertz Corp., 69 N.Y.2d 979, 516 N.Y.S.2d 652 (1987) (excessive charges for collision damage waivers, personal accident insurance and late return fees). See § 4.04[5] su......
-
New York State class actions: make it work - fulfill the promise.
...enactment of Article 9 in 1975. Dickerson, Consumer Class Actions, supra note 14, at 6 (citations omitted). (18) Weinberg v. Hertz Corp., 69 N.Y.2d 979, 509 N.E.2d 347, 516 N.Y.S.2d 652 (1987), aff'g 116 A.D.2d 1,499 N.Y.S.2d 693 (App. Div. 1st Dep't 1986) (granting class action certificati......
-
Chapter § 3.04 RENTAL CARS
...replacement gasoline charges; class certification granted). New York: Weinberg v. The Hertz Corp., 116 A.D.2d 1, 499 N.Y.S.2d 693, aff'd 69 N.Y.2d 979, 516 N.Y.S.2d 652 (1987) (gasoline refueling charges excessive "resulting in charges . . . of $1.85 per gallon" and that such charges were v......
-
Chapter § 6.01 THE IMPACT OF CLASS ACTIONS
...damage waivers was unconscionable; certification denied). New York: Weinberg v. The Hertz Corp., 116 A.D.2d 1, 499 N.Y.S.D.2d 693, aff'd 69 N.Y.2d 979, 516 N.Y.S.2d 652 (1987) (excessive gasoline refueling charges; certification granted to class of 2.8 million consumers); Super Glue Corp. v......