| Vasquez v National Sec. Corp. |
| 2016 NY Slip Op 03817 [139 AD3d 503] |
| May 12, 2016 |
| Appellate Division, First Department |
[*1]
| Christopher Vasquez, Individually and on Behalf ofOther Persons Similarly Situated, Respondent, v National SecuritiesCorporation, Appellant, et al., Defendant. |
Baker & Hostetler LLP, New York (Daniel J. Buzzetta of counsel), forappellant.
Virginia & Ambinder, LLP, New York (James Emmet Murphy of counsel), forrespondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), enteredMay 4, 2015, which granted plaintiff's motion to give notice of the impending dismissalof the complaint to putative class members pursuant to CPLR 908, unanimouslyaffirmed, without costs.
The motion court correctly required notice of the impending dismissal of the putativeclass action even though the class had not been certified. The court correctly relied onour decision in Avena v Ford Motor Co. (85 AD2d 149 [1st Dept 1982]), thesubsequent amendment of Federal Rules of Civil Procedure rule 23 (e) to restrict thenotice requirement to dismissals, discontinuances and compromises of "certified class"actions notwithstanding. The legislature, presumably aware of the law as stated inAvena, has not amended CPLR 908 to conform to the federal statute. Althoughdefendant-appellant raises policy arguments in support of its position, its remedy lieswith the legislature and not with this Court (see Bright Homes v Wright, 8 NY2d157, 162 [1960]).
We have considered defendant-appellant's other contentions and find themunavailing. Concur—Tom, J.P., Friedman, Saxe and Richter, JJ. [Prior CaseHistory: 48 Misc 3d 597.]