A SUMMARY OF ARTICLE 9 CLASS ACTIONS IN 1998
In 1998, New York Courts dealt with a record number of class actions brought under C.P.L.R. Article 9. In State v. Philip Morris1, a quasi class action brought by the Attorney General pursuant to General Business Law § 342-b, the Westchester County Attorney2 sought to intervene and challenge a proposed settlement of New York State's Medicaid claims against the tobacco companies. In a decision of first impression the Court found a potential conflict of interest [ " the State is a member of the class it purports to represent " ] and held that " GBL § 342-b is subject to and does not supercede the provisions of CPLR Article 9 ". The Court ordered " notice to the class ( of Counties ), and court approval of any settlement or compromise ( pursuant to CPLR 908 ) ". On December 23, 1998 the Court approved of a proposed settlement3.
In five related class actions smokers charged manufacturers with concealing the addictive nature of nicotine. In a reissued Decision the Appellate Division in Small v. Lorillard Tobacco4 denied class certification [ "' a claim which turns on proof of actual addiction would involve far too many subjective factors '" ] and dismissed the fraudulent concealment claims as preempted by the Federal Cigarette Labeling and Advertising Act5. In another smokers' class action, Geiger v. American Tobacco Company6, the Appellate Division reversed and remanded on class certification and dismissed the failure to warn, negligent misrepresentation and warranty claims as preempted by federal statute but found the remaining claims sufficient.
Consumer Goods & Services
In Archer v. Schering-Plough Corp7 the defendant was charged with misrepresenting the protective qualities of its Coppertone tanning products [ " extended exposure to direct sunlight while using SPF2 sunscrean will result in substantial risk of melanoma " ]. The Court dismissed the misrepresentation and failure to warn claims as preempted by and subject to the primary jurisdiction of the FDA. In addition, the Court separately dismissed each cause of action [ " (plaintiff) did not read the disputed labels...did not use the products " ].
In Brower v. Gateway 2000, Inc.8, a computer manufacturer was charged with failing to honor a promise to provide "' service when you need it ' including around-the-clock free technical support, free software technical support and certain on-site services ". The Appellate Division enforced arbitration and choice of forum ( Chicago ) clauses but declined to require arbitration before the International Chamber of Commerce because of inaccessibility and prohibitive costs [ " consumers are thus left with no forum at all in which to resolve a dispute " ].
In Brummel v. Leading Edge Products, Inc.9 a nationwide class of computer purchasers charged the defendant with failing to " provide the service they promised and promoted to the Class ". The Court denied class certification finding eight different warranty certificates, management problems in applying the laws of 50 states and the predominance of individual reliance issues. The Court then granted summary judgment dismissing the complaint.
In Daex Corp. v. I.B.M.10 the defendant was charged with misrepresenting that certain IBM computers " could be upgraded with ' Pentium ' technology in a cost-effective manner ". Plaintiffs sought to strike the complaint's class allegations prior to certification without being forced to send notice to potential class members11. The Court granted this request finding " no reason to believe that absent class members have foregone litigation opportunities in reliance upon the pendency of the class allegations in this case ".
In Karlin v. IVF America, Inc.12, a fertility clinic was charged with misrepresentations and deception. The Court of Appeals granted leave to appeal the decisions of the Appellate Division denying class certification13 and dismissing the G.B.L. §§ 349, 350 claims14.
In Celebrity International, Inc. v. F.W. Woolworth Co15. suppliers charged breach of contract after defendant canceled many orders. The Court denied class certification finding predominant legal [ U.C.C. ] and factual issues. The Court found that given the large individual damages involved Article 9 need not " be liberally construed ".
In Meachum v. Outdoor World Corp.16, defendants were charged with misrepresenting the availability of campgrounds and the quality of services. Although class certification had previously been denied17 the plaintiffs in the first18 and second19 consolidated class actions successfully resisted motions to dismiss their G.B.L. § 349 claims.
In Bader v. Siegel20, defendant was charged with educational fraud for failing " to demonstrate the ' strategies, tactics and formulations ' " of " his private life in order for students to use same as an example ". The Court dismissed the complaint finding the promises " too vague to be enforced " and " puffery incapable of being proved true or false "21.
In Drogin v. General Electric Capital22, the defendant automobile lessor was charged with " failing to apply... profits towards the reduction of the amounts owed under ( each lease ) ". The Court approved23 a settlement [ cash payments or certificates ] and attorneys fees of $203,130.7124.
In Kahn v. Bell Atlantic NYNEX Mobile25, it was charged that defendant's cellular phone service agreement contained an automatic renewal clause in violation of General Obligations Law § 5-903. A proposed settlement provided two sub classes with 30 to 180 free minutes of airtime and the payment of legal fees of $225,000. Noting that "' Quickie ' or ' sweetheart ' settlements are to be avoided " the Court rejected the settlement [ " no evidence had been offered which would permit (the) Court to make an independent assessment of the value of the airtime " ] and the fee application [ " only the attorneys ( will benefit ) " ].
In Faden Bayes Corp. v. Ford Motor Corp26 the defendant was charged with " misrepresent(ing)...that the ( 1996 Ford Explorer Limited ) was equipped with...Automatic Ride Control ". Prior to the lawsuit Ford refunded $650 to each purchaser and lessee. The Court dismissed that complaint27 finding no deception, no reliance and no damages.
In Brown v. Ford Motor Co28., it was charged that 1991-1994 Ford Explorers suffered from "' vibration problem(s)'...when operated at ' certain normal speeds '". The Court dismissed the complaint finding no damages, no " promise, language, claim (or), warranty " and no viable claim applicable to the named plaintiffs' claims under Georgia, Illinois, Connecticut and New York State law.
In Gordon v. Ford Motor Co29 it was charged that 1988 and 1989 Lincoln Continentals had " different malfunctions ". In denying class certification the Court found a predominance of individual issues [ " varied extended service plans ", " Warranty rights appear...as diverse as the claims of perceived problems " ].
In Cronin v. Cunard Line Limited30, it was charged that defendant's " port and handling charge(s)...often exceed(ing) $150 per passenger " were misleading and deceptive. The Appellate Division enforced a clause in the passenger ticket requiring commencement of non-physical injury lawsuits within six months31, rejected equitable tolling32 and dismissed the complaint.
In Makastchian v. Oxford Health Plans, Inc.33 insureds challenged retroactive termination of " health care coverage without prior notification ". The Court granted class certification finding that the " overwhelming issue is... proper notification (of) termination of benefits ", and ordered defendant to pay the initial costs of notice [ " plaintiffs have shown a likelihood of success on the merits " ].
In Sterling v. Ackerman34, insureds sought recovery of medical fees paid in " excess of amounts allowed by...Medicare limiting charge statutes ". The Court denied motions to dismiss for failure to exhaust administrative remedies, no private right of action and no claim under G.B.L § 349 and ordered discovery on class issues.
In Kenavan v. Empire Blue Cross35, a class of Medigap insureds claimed defendant failed " to increase the benefits to cover the increase in the co-insurance...(resulting from ) reduced Medicare payments ". After class certification was granted in federal court the action was remanded to state court where summary judgment was granted and the class awarded in excess of $3 million in damages. The Appellate Division affirmed and approved of unclaimed funds escheating to the state.
In Cole v. Equitable Life Assurance Society36 and Russo v. Massachusetts Mutual Life Ins. Co.37, defendants were charged with misrepresenting that premiums would vanish when they did not. In Cole the Court dismissed breach of contract and negligent misrepresentation claims and denied certification " in the absence of any viable claim ". In Russo the Court denied certification finding only oral misrepresentations and predominance of individual reliance issues.
In Tiganu v. Romanian Orthodox Episcopate38, unhappy parishioners [ " St. Mary's is torn by an internal conflict... expulsions of Church members abound; the faithful are forced to leave..." ] sought a declaratory judgment " to validate the right of ( those ) who have complied with the rules of the Church...to vote in electing the Parish Council...".
Terminated employees in Westchester County [ Holcomb v. O'Rourke39 ] and Nassau County [ Weitzenberg v. Nassau County40 ] sought reinstatement and lost wages. In Holcomb, an Article 78 action, the class claimed " the County had acted improperly in eliminating their positions ". Finding an exception to the governmental operations rule the Appellate Division granted class certification. In Weitzenberg, the Appellate Division denied class certification finding no common course of misconduct[ " numerous differences among the members of the proposed class " ].
Four different classes of employees [ Pesantez v. Boyle Environmental Services41, Cantos v. Castle Abatement Corp.42, Gomez v. Gateway Demolition Corp.43, Woods v. Champion Courier, Inc.44 ] sought payment of prevailing wages and benefits pursuant to Labor Law § 220. In Pesantez, the Appellate Division granted certification of the breach of contract claim and denial of the § 220 claim for failure to exhaust administrative remedies. In Cantos, the Appellate Division reinstated a stricken Answer to a class action certified in 1996. In Gomez, the Court dismissed the class allegations for failure to move for certification within 60 days [ 15 months delay ]. In Woods, the plaintiff sought to avoid the prohibition of CPLR 901(b) by waiving punitive damages. The Court denied certification for lack of adequate representation and superiority finding that the Labor Commissioner " may bring claims collectively on behalf of employees of a single business without forfeiting the punitive damages afforded by the Labor Law ".
In Myers v. City of Schenectady45, retired city employers sought full reimbursement of Medicare part B premiums as a vested contract benefit. The Appellate Division affirmed class certification and summary judgment for the class.
In Brown v. State of New York46 a class of African American men in Oneonta alleged " the conduct of law enforcement officials was racially motivated ". The Appellate Division affirmed the Court of Claims' grant of class certification but modified on the burden of proof required of the plaintiffs [ strict scrutiny test sufficient ].
In Aprea v. Hazeltine Corp47 homeowners charged that defendant's chemicals contaminated " soil, air and groundwater " reducing property values within a quarter mile of the plant. Finding the predominance of individual issues of causation and damages the Appellate Division denied class certification.
In Lewis v. Forest Hills Gardens Corp.48, motorists challenged defendant's excessive fines for illegal parking. The Appellate Division denied class certification finding " plaintiff is a not a suitable ( class ) representative ".
In Butler v. Wing49, taxpayers challenged the constitutionality of the Statewide Offset Program which permits the offsetting of tax refunds with debts owed to State agencies.
The Court granted certification and found the challenged program unconstitutional.
In New York City Coalition v. Giulliani50, the Appellate Division affirmed class certification and a finding of criminal contempt against New York City for failing " to promulgate and enforce written policies and procedures for carrying out their duties...to alleviate the danger of children being exposed to lead-based paint in multiple dwellings ". The action was remanded on the method and cost of notice.
In Phoenix Owners Corp. v. Time Warner, Inc.51, property owners charged cable companies with stealing electricity to boost " the strength of ( their ) cable signals ". The Court approved a proposed settlement but declined to award attorneys fees under the lodestar or percentage method [ " ( the record ) provides no documentary support for the services rendered on an hourly basis " ].
In Bauer v. Mellon Mortgage Co.52, mortgagees claimed defendant violated State private mortgage insurance [ PMI ] law by failing to inform them that PMI was not needed when the unpaid balance fell below 75%. The Court dismissed some claims, e.g., breach of fiduciary duty, and sustained others, e.g., breach of contract and GBL § 349.
Condos & Tenants
In Zehnder v. Ginsburg53, condo owners sued defendant architects for faulty construction. The Appellate Division denied certification finding a predominance of individual issues and a lack of typiClass Action Litigationty [ " ( condo ) units... not of uniform design " ].
In Lang v. Pataki54 New York City residential tenants sued a defendant class of landlords and a defendant class of Housing Court Judges and Clerks claiming RPAPL § 745(2)'s requirement for deposit of postpetition rent or immediate trial was unconstitutional. The Court denied class certification and a motion seeking a preliminary injunction.
In Daniel v. State55, tenants sought review " of overcharge claims " pending before defendant. The Court denied class certification for failing to exhaust administrative remedies, predominance of individual issues, inadequate representation and governmental operations rule.
In Ackerman v. Price Waterhouse56, limited partners claimed defendant rendered negligent tax advice. Declining to certify a global class [ " widely divergent laws of multiple jurisdictions " ], the Appellate Division certified a New York class applying the law of New York or Pennsylvania. The Court also held that reliance could be presumed where the alleged misrepresentations are uniform and printed.
In Seinfeld v. Robinson57, a derivative action was settled without financial compensation to the class. Applying the substantial benefit theory [ " a substantial benefit accruing to the corporation need not have a readily ascertainable monetary value " ] the Appellate Division held that attorneys fees should be awarded and remanded for a hearing.
In Lum v. Opticon, Inc58, a derivative suit, plaintiff's attorneys won a trial verdict of $2.4 million and applied for an award of fees and costs. Finding no " appreciable difference in calculating the fee under Delaware or New York law " the Court awarded fees and costs using the lodestar method.
In London v. Versus Technology, Inc.59, warrant holders charged the issuer with breaching an " anti-dilution provision " in a warrant agreement. The Court denied class certification for failing to establish numerosity and " the financial means to pursue the action ".
In Greater New York Health Care Facilities Ass'n v. DeBuono61, the Court of Appeals denied a motion to intervene and challenge a proposed settlement of nursing home Medicaid claims. Though denominated as a class action it was never certified as such and intervenors had done nothing to protect their rights.
In Seittelman v. Sobol62, medicaid applicants challenged regulations limiting reimbursement for medical services. Class certification was granted and the Court of Appeals found the regulation null and void in part and awarded " retroactive reimbursement ( at the rate ) in effect at the time the...services were rendered ".
In EFS Medical Supplies, Inc. v. Dowling63, the Appellate Division denied class certification and dismissed the complaints of medical providers seeking to force the State " to pay Medicare cost sharing claims...in connection with treatment of Medicare- eligible patients " as barred by a four month Statute of Limitations.
In Chalfin v. Sabol64, the Appellate Division certified a class of New York City Medicaid recipients and held invalid a regulation limiting medicaid reimbursement for certain pre- application expenses.
In Non-Emergency Transporters v. Hammons65, a class of medical providers challenged a new " transportation plan that would reduce ( Medicaid ) reimbursement rates for ambulette service providers ". The Appellate Division denied class certification and dismissed the complaint finding a rationale basis for the plan.
In Santana v. Hammons66, Matthews v. Barrios-Paoli67 and Grover v. Wing68 welfare recipients challenged Work Experience Program or " workfare " regulations. In Santana the Court granted class certification and a preliminary injunction to welfare recipients with physical or psychological limitations challenging a loss of workfare benefits " due to various medical... appointments ". In Matthews the Court granted class certification to high school students claiming " that ( workfare program ) assignments interfere with...highschool studies " and held applicable regulations unconstitutional. In Grover the Appellate Division held that welfare recipients challenging workfare rates of pay should proceed pursuant to Article 78 and not " as a putative class action ".
In Doe v. Wing69, a class action challenging welfare eligibility rules designed to comply with the Court's earlier ruling in Brown v. Wing70 [ six month residency requirements for welfare eligibility unconstitutional ] the Court granted class certification and held the new rules unconstitutional as well.
(*)Thomas A. Dickerson is a Westchester County Court Judge and author of Class Actions: the Law of 50 States [ Law Journal Press, New York, New York, 1981-2000 ]. Kenneth A. Manning is a partner in Phillips, Lytle, Hitchcock, Blaine & Huber in Buffalo.
FOOTNOTES1 State of New York v. Philip Morris, Inc., Index No. 400369/97, N.Y. Sup. (SC).
2 See Greene, The County Fights for Its Share Of Tobacco Settlement, New York Sunday Times, Westchester Section, November 29, 1998, p. 1.
3 See N. 1, supra. Decision dated December 23, 1998.
4 Small v. Lorillard Tobacco Company, Inc., New York Law Journal, November 2, 1998, p. 25, col. 3 ( N.Y. App. Div. ).
5 15 U.S.C. § 1331. See e.g., Griesenbeck v. American Tobacco Co., 897 F. Supp. 815, 825 ( D.N.J. 1995 ); Allgood v. R.J. Reynolds Tobacco Co., 80 F. 3d 168, 171 ( 5th Cir. 1996 ), cert. denied, 117 S. Ct. 300 ( 1996 ).
6 Geiger v. American Tobacco Company, __A.D. 2d__, 674 N.Y.S. 2d 775 ( 1998 ).
7 Archer v. Schering-Plough Corp., Index No. 603336/97, N.Y. Sup. (CR).
8 Brower v. Gateway 2000, Inc., 246 A.D. 2d 246, 676 N.Y.S. 2d 569 ( 1998 ).
9 Brummel v. Leading Edge Products, Inc., New York Law Journal, February 19, 1998, p. 28, col. 4 ( N.Y. Sup. ).
10 Daex Corp. v. International Business Machines, New York Law Journal, Dec. 14, 1998, p. 29, col. 3 ( N.Y. Sup. ).
11 See Avena v. Ford Motor Co., 85 A.D. 2d 149, 447 N.Y.S. 2d 278 ( 1982 )( notice required prior to pre-certification discontinuance ).
12 Karlin v. IVF America, Inc., 92 N.Y. 2d 807, 678 N.Y.S. 2d 593, 700 N.E. 2d 1229 ( 1998 ).
13 Id at 239 A.D. 2d 562, 657 N.Y.S. 2d 460 ( 1997 ).
14 Id at 239 A.D. 2d 560, 658 N.Y.S. 2d 73, 75 ( 1997 ).
15 Celebrity International, Inc. v. F.W. Woolworth Co., New York Law Journal, December 22, 1998, p. 26, col. 1 ( N.Y. Sup. ).
16 Meachum v. Outdoor World Corp., Index No. 26917/94, Queens Sup. (DG).
17 Meachum v. Outdoor World Corp., 171 Misc. 2d 354, 654 N.Y.S. 2d 240 ( 1996 ).
18 Id at 235 A.D. 2d 462, 652 N.Y.S. 2d 749 ( 1997 ).
19 See N. 17, supra. Decision And Order dated October 16, 1998.
20 Bader v. Siegel, 238 A.D. 2d 272, 657 N.Y.S. 2d 28 ( 1996 ).
21 Compare: Andre v. Pace University, 161 Misc. 2d 613, 618 N.Y.S.2d 975 ( 1994 ), rev'd, 170 Misc. 2d 893, 655 N.Y.S. 2d 777 ( N.Y.A.T. 1996 )( claims for educational malpractice not recognized in New York State ).
22 Drogin v. General Electric Capital Auto Financial Services, Inc., Index No. 95/112141, N.Y. Sup. (BC).
23 Id. Order Of Settlement Approval And Final Judgment Dated July 7, 1998.
24 For a discussion of establishing the value of non-cash settlements and awarding fees in coupon settlements see Dickerson, Class Actions: The Law of 50 States, Law Journal Seminars-Press, 1988-1998, §§ 9.03[c], 10.01.
25 Kahn v. Bell Atlantic NYNEX Mobile, New York Law Journal, June 4, 1998, p. 29, col. 2 ( N.Y. Sup. ).
26 Faden Bayes Corp. v. Ford Motor Corp., Index No. 601076/97, N.Y. Sup. (CR).
27 Id. Decision dated January 16, 1998.
28 Brown v. Ford Motor Co., New York Law Journal, April 17, 1998, p. 26, col. 6 ( N.Y. Sup. ).
29 Gordon v. Ford Motor Company, Index No. 104635/94, N.Y. Sup. (LF).
30 Cronin v. Cunard Line Limited, __A.D. 2d__, 672 N.Y.S. 2d 864 ( 1998 ).
31 See Dickerson, Travel Law, Law Journal Seminars-Press, 1981- 1998, § 3.03 for a discussion of pro-cruiseline policies including enforceability of short time limitations, forum selection clauses and choice of law clauses.
32 Compare: Yollin v. Holland America Cruises, Inc., 97 A.D. 2d 720, 468 N.Y.S. 2d 873 ( 1983 )( contractual time limitations tolled for all putative class members by filing of class action within time limits ).
33 Makastchian v. Oxford Health Plans, Inc., New York Law Journal, August 3, 1998, p. 28, col. 1 ( N.Y. Sup. ).
34 Sterling v. Ackerman, 244 A.D. 2d 170, 663 N.Y.S. 2d 842
( 1997 ).
35 Kenavan v. Empire Blue Cross and Blue Shield, __A.D. 2d__, 677 N.Y.S. 2d 560 ( 1998 ).
36 Cole v. Equitable Life Assurance Society of the United States, New York Law Journal, February 26, 1998, p. 28, col. 2
( N.Y. Sup. ). Compare: In re Jackson Nat. Life Ins. Co., 1998 WL 772185 ( W.D. Mich. 1998 )( certification denied to vanishing premium class action; too many individual issues including the application of laws of many states ).
37 Russo v. Massachusetts Mutual Life Insurance Co.,__A.D. 2d__, __N.Y.S. 2d__, 1998 WL 827789 ( N.Y. Sup. 1998 ).
38 Tiganu v. Romanian Orthodox Episcopate of America, Index No. 20162, Queens Sup.
39 Holcomb v. O'Rourke, __A.D. 2d__, 679 N.Y.S. 2d 698 ( 1998 ).
40 Weitzenberg v. Nassau County Department of Recreation and Parks, __A.D. 2d__, 672 N.Y.S. 2d 110 ( 1998 ).
41 Pesantez v. Boyle Environmental Services, __A.D. 2d__, 673 N.Y.S. 2d 658 ( 1998 ).
42 Cantos v. Castle Abatement Corp., __A.D. 2d__, 673 N.Y.S. 2d 662 ( 1998 ).
43 Gomez v. Gateway Demolition Corp., New York Law Journal, March 1, 1998, p. 32, col. 3 ( Queens Sup. ).
44 Woods v. Champion Courier, Inc., New York Law Journal, October 9, 1998, p. 26, col. 1 ( N.Y. Sup. ).
45 Myers v. City of Schenectady, 244 A.D. 2d 845, 665 N.Y.S. 2d 716 ( 1997 ).
46 Brown v. State of New York, __A.D. 2d__,__N.Y.S. 2D__, 1998 WL 835197 ( 1998 ).
47 Aprea v. Hazeltine Corp., 247 A.D. 2d 564, 669 N.Y.S. 2d 61
( 1998 ).
48 Lewis v. Forest Hills Gardens Corp., __A.D. 2d__, 676 N.Y.S. 2d 515 ( 1998 ).
49 Butler v. Wing, 177 Misc. 2d 779, 677 N.Y.S. 2d 216 ( 1998 ).
50 New York City Coalition To End Lead Poisoning v. Giuliani, 245 A.D. 2d 49, 668 N.Y.S. 2d 90 ( 1997 ).
51 Phoenix Owners Corp. v. Time Warner Inc., New York Law Journal, March 5, 1998, p. 28, col. 1 ( N.Y. Sup. ).
52 Bauer v. Mellon Mortgage Co., New York Law Journal, August 14, 1998, p. 21, col. 5 ( N.Y. Sup. ).
53 Zehnder v. Ginsburg & Ginsburg Architects, __A.D. 2d__, 678 N.Y.S. 2d 376 ( 1998 ).
54 Lang v. Pataki, 176 Misc. 2d 676, 674 N.Y.S. 2d 903 ( 1998 ).
55 Daniel v. New York State Div. of Housing, __Misc. 2d__, 1998 WL 828089 ( 1998 ).
56 Ackerman v. Price Waterhouse, __A.D. 2d__, 1998 WL 851946, New York Law Journal, December 4, 1998, p. 25, col. 3 ( 1998 ).
57 Seinfeld v. Robinson, 246 A.D. 2d 291, 676 N.Y.S. 2d 579
( 1998 ).
58 Lum v. Opticon, Inc., New York Law Journal, January 26, 1998, p. 29, col. 6 ( Nassau Sup. ).
59 London v. Versus Technology, Inc., Index No. 120758/96, N.Y. Sup. (CR), Decision dated July 2, 1998..
60 Rosan v. IWI Holding Limited, Index No. 604731/96, N.Y. Sup.
( BS ), Decision dated July 1998.
61 Greater New York Health Care Facilities Ass'n v. DeBuono, 91 N.Y. 2d 716, 674 N.Y.S. 2d 634, 697 N.E. 2d 589 ( 1998 ).
62 Seittelman v. Sabol, 91 N.Y. 2d 618, 674 N.Y.S. 2d 253
( 1998 ).
63 EFS Medical Supplies, Inc. v. Dowling, __A.D. 2d__, 1998 WL 877874, New York Law Journal, December 18, 1998, p. 25, col. 3
( 1998 ).
64 Chalfin v. Sabol, 247 A.D. 2d 309, 669 N.Y.S. 2d 45 ( 1998 ).
65 Non-Emergency Transporters of New York, Inc. v. Hammons,
__A.D. 2d__, 672 N.Y.S. 2d 16 ( 1998 ).
66 Santana v. Hammons, 177 Misc. 2d 223, 673 N.Y.S. 2d 882
( 1998 ).
67 Matthews v. Barrios-Paoli, __Misc. 2d__, 676 N.Y.S. 2d 757
( 1998 ).
68 Grover v. Wing, 246 A.D. 2d 813, 667 N.Y.S. 2d 785 ( 1998 ).
69 Doe v. Wing, Index No. 98/2903, Monroe Sup. (AS), Decision dated July 30, 1998.
70 Brown v. Wing, 170 Misc. 2d 554, 649 N.Y.S. 2d 988 ( 1996 ), aff'd 241 A.D. 2d 956, 663 N.Y.S. 2d 1025 ( 1997 ).