Ganci v Cape Canaveral Tour & Travel, Inc.

2005 NY Slip Op 06301

Decided on August 8, 2005

Appellate Division, Second Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 8, 2005
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
THOMAS A. ADAMS, J.P.
GABRIEL M. KRAUSMAN
STEVEN W. FISHER
ROBERT A. LIFSON, JJ.
2004-01119






Todd C. Bank, Kew Gardens, N.Y., for appellant.
Boundas Skarzynski Walsh & Black, LLC, New York, N.Y.
(William M. Billings and Weinstock
& Scavo, P.C., Atlanta, GA., of
counsel), for defendants Cape
Canaveral Tour and Travel, Inc., Kosmas
Group International, Inc., Nicholas
Kosmas, Robert P. Kosmas, a/k/a
Paul R. Kosmas, and Steven P.
Kosmas, d/b/a Etourandtravel, Inc.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New
York, N.Y. (Cynthia Neugebauer,
Eugene T. Boulé, and Debra Adler
of counsel), for respondent.

In a putative class action, inter alia, to recover damages for violation of the Telephone Consumer Protection Act (47 USC § 227), the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Barasch, J.), dated January 9, 2004, as granted the motion of the defendant King's Creek Plantation, LLC, to dismiss the complaint pursuant to CPLR 3211(a)(7) to the extent of dismissing the class action allegations and associated class action relief insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the defendant King's Creek Plantation, LLC.

For the reasons set forth in Rudgayzer & Gratt v Cape Canaveral Tour and Travel, [*2]Inc. ( AD3d , decided herewith), a class action may not be maintained in this case (see CPLR 901[b]).

In light of our determination, we do not reach the remaining contention of the defendant King's Creek Plantation, LLC.
ADAMS, J.P., KRAUSMAN, FISHER and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court