You are here: / / Class Certification Not Available When Action Seeks Payment of a Nonwaivable...

Class Certification Not Available When Action Seeks Payment of a Nonwaivable Penalty

The Second Department, reversing Supreme Court, determined the respondent county’s request for class certification should not have been granted because the action sought payment of a penalty.  The county was seeking to act on behalf of 55 other governmental agencies to recover a “hotel tax” which allegedly was not fully paid by the appellants, online sellers of hotel accommodations:

Pursuant to CPLR 901(b), “Unless a statute creating or imposing a penalty, or a minimum measure of recovery specifically authorizes the recovery thereof in a class action, an action to recover a penalty, or minimum measure of recovery created or imposed by statute may not be maintained as a class action.” “However, even where a statute creates or imposes a penalty, the restriction of CPLR 901(b) is inapplicable where the class representative seeks to recover only actual damages and waives the penalty on behalf of the class, and individual class members are allowed to opt out of the class to pursue their punitive damages claims” … . Nonetheless, the “waiver” exception to CPLR 901(b) does not apply where a penalty is mandatory and cannot be waived … .

Here, the plaintiff cannot obtain class certification of this action because, under the plaintiff’s own Hotel Tax law, it is required to recover a “penalty” of 5% of the amount of the tax allegedly due from the appellants within the meaning of CPLR 901(b), the recovery of which in a class action is not specifically authorized in the Hotel Tax law, and the imposition of which cannot be waived, as conceded by the plaintiff’s representative during the deposition. Accordingly, the Supreme Court should have denied the plaintiff’s motion pursuant to CPLR article 9 for class certification of this action. County of Nassau v Expedia Inc, 2014 NY Slip Op 06050, 2nd Depy 9-10-14

 

You might also like
In an Appeal from an Order Made Upon Appellant’s Default, Only Matters Contested Below Can Be Heard—Here the Only Matter Contested Below Was Appellants’ Request for an Adjournment to Obtain New Counsel—Relevant Review Criteria Explained
A COURT REVIEWING THE DENIAL OF A FOIL REQUEST CANNOT BASE ITS RULING AFFIRMING THE DENIAL ON A GROUND NOT RAISED BY THE AGENCY TO WHICH THE REQUEST WAS MADE (SECOND DEPT).
Affirmative Defense Waived by Absence from Initial Answer May Be Included in Amended Answer.
IT IS PROPER TO MAKE PARTICIPATION IN COUNSELING A COMPONENT OF A PARENTAL ACCESS ORDER, BUT IT IS IMPROPER TO CONDITION A FUTURE APPLICATION FOR PARENTAL ACCESS ON PARTICIPATION IN COUNSELING (SECOND DEPT).
Failure to Identify Industrial Code Violation in Pleadings Not Fatal/Supervisory Criteria for Labor Law 200(1) Action Explained
Defendant Did Not Demonstrate Lack of Constructive Notice in Slip and Fall Case—Slip and Fall Cause of Action Should Not Have Been Dismissed.
IN A FORECLOSURE ACTION, ANY DEFICIENCIES IN PLAINTIFF’S COUNSEL’S CERTIFICATE OF MERIT (CPLR 3012-B) CAN NOT BE THE BASIS FOR DEFENDANT’S MOTION TO DISMISS ALLEGING PLAINTIFF’S LACK OF STANDING (SECOND DEPT).
QUESTION OF FACT WHETHER THE ENCROACHMENT OF A FIRE ESCAPE HOVERING OVER A PORTION OF DEFENDANT’S PROPERTY WAS HOSTILE AND CONTINUOUS FOR THE PRESCRIPTIVE PERIOD (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

60-Day Rule Did Not Apply—Failure to Submit Proposed Order Within 60 Days... Late Motion to Amend Complaint Should Have Been Granted–No Showing of...