Opinion
January 16, 1984
In an action to recover damages for breach of contract and fraudulent representations, plaintiffs appeal from an order of the Supreme Court, Nassau County (Morrison, J.), entered December 1, 1982, which denied their motion for class action certification. Order affirmed, without costs or disbursements. CPLR 902 provides that the plaintiff "shall move for an order" to determine whether an action is to be maintained as a class action, "[w]ithin sixty days after the time to serve a responsive pleading has expired for all persons named as defendants in an action brought as a class action". The motion for class action certification herein was not made until over four years had passed since joinder of issue. Under these circumstances, Special Term did not err in denying the motion for class action certification ( O'Hara v Del Bello, 47 N.Y.2d 363; Matter of Shook v Lavine, 49 A.D.2d 238; CPLR 902, subd 4). Titone, J.P., Mangano, O'Connor and Brown, JJ., concur.