Opinion
November 15, 1989
Appeal from the Supreme Court, Erie County, Ostrowski, J.
Present — Denman, J.P., Green, Pine, Balio and Lawton, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: The court erred in granting plaintiffs' motion for class certification of a plaintiffs' class, pursuant to CPLR 902, for the cause of action seeking statutory interest on escrow accounts for the period between discharge of mortgages and payment of the account balance to the mortgagors. That motion was made in response to defendants' motion to dismiss. Without responsive pleadings, precertification discovery or the benefit of a "mini-hearing", and without enabling defendants to contest class certification on the merits, that order was premature (see, Chimenti v American Express Co., 97 A.D.2d 351, mot to dismiss appeal granted 61 N.Y.2d 669; see also, Katz v NVF Co., 100 A.D.2d 470, 473-474) and therefore is reversed, without prejudice.