Summary
In McKinnon v International Fidelity Insurance Co. (281 AD2d 283 [1st Dept 2001]), involving a claim by clients of a bail bond service, proof of liability turned on the personal interactions between individual bail bond sales persons and the client.
Summary of this case from Krebs v. the Canyon Club, Inc.Opinion
March 20, 2001.
Order, Supreme Court, New York County (Barry Cozier, J.), entered on or about June 7, 2000, which denied plaintiff's motion for class certification pursuant to CPLR 901 and 902, unanimously affirmed, without costs.
Brad N. Friedman, for plaintiff-appellant.
Before: Rosenberger, J.P., Williams, Mazzarelli, Andrias, Rubin, JJ.
Plaintiff's motion for class certification in this action alleging that defendants engaged in a pattern of charging fees for bail bonds in excess of the statutory maximum, was properly denied in light of her failure to demonstrate, inter alia, that "there are questions of law or fact common to the class which predominate over any questions affecting only individual members" (CPLR 901[a][2]). The alleged wrongs were individual in nature or are subject to individual defenses (see,Mitchell v. Barrios-Paoli, 253 A.D.2d 281, 291). Here, to determine whether the alleged overcharges occurred, the court will have to inquire into the specific nature and purpose of the fees charged in each instance. In addition, inquiry will need to be made as to what each bail bondsmen told each client the fees were for, whether the client actually received additional services for the fees other than simply obtaining the bail bond, and whether any oral misrepresentations were made or written contracts entered into concerning fees for additional services. Accordingly, since substantiation of the claims herein will require individualized proof concerning the various bases of liability and are subject to individualized defenses, the motion court properly denied class certification (see, Banks v. Carroll Graf Publishers Inc., 267 A.D.2d 68).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.