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Froehlich v. Toia

71 A.D.2d 824 Court N.Y. App. Div. Decision date 1979-07-13 English

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In the Matter of Frederick Froehlich et al., Appellants, and Leo Preston et al., Intervenors-Appellants, v Philip L. Toia, as Commissioner of the New York State Department of Social Services, et al., Respondents.

Judgment unanimously affirmed, without costs. Memorandum: Petitioner and interveners brought this CPLR article 78 proceeding seeking to review a determination of respondent State Commissioner of Social Services which denied retroactive effect to a Court of Appeals determination in Matter of Dumbleton v Reed ( 40 NY2d 586 ). Petitioners appeal only from that part of the judgment at Special Term that denied their motion that the proceeding be maintained as a class action. Class action certification is a question vested in the sound discretion of the court (CPLR 901, subd a, par 5; Matter of Shook v Lavine, 49 AD2d 238 ; Siegel, New York Practice, §§ 141, 142). The fact that this proceeding involved a governmental operation does not, standing alone, bar a class action (Matter of Knapp v Michaux, 55 AD2d 1025 ). Where, as here, there is no common question of law to be determined, but only the facts of each individual’s circumstances to be examined sepa

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rately, no economy of judicial time is gained by granting class action certification. Further, such relief is unnecessary since the respondent has acquiesced in the decision and subsequent petitioners are adequately protected by the principle of stare decisis (Matter of Dumbleton v Reed, supra; Matter of Martin v Lavine, 39 NY2d 72 ). Where class action status is not obtained in a proceeding under CPLR article 9, attorneys’ fees may not be awarded (CPLR 909). (Appeal from judgment of Steuben Supreme Court— art 78.) Present—Cardamone, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.

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