Gudz v. Jemrock Realty Co., LLC

Moskowitz and Manzanet-Daniels, JJ.,

dissent in a memorandum by Manzanet-Daniels, J, as follows: This appeal requires us to consider what constitutes a “penalty” for purposes of the class action statute, CPLR 901 (b), and whether a putative class representative may waive such penalty and still be deemed an adequate class representative.

CPLR 901 (b) expressly provides that “[u]nless 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…