Opinion
2345.
December 2, 2003.
Order, Supreme Court, New York County (Charles Ramos, J.), entered April 25, 2003, which, inter alia, denied class certification to plaintiff policyholders in this action alleging deceptive sales techniques, unanimously affirmed, without costs.
Barry A. Weprin, for Plaintiffs-Appellants.
Thomas J. Dougherty, for Defendant-Respondent.
Before: Nardelli, J.P., Rosenberger, Lerner, Friedman, JJ.
Plaintiffs failed to demonstrate questions of fact common to the class which predominate over questions affecting only individual members (CPLR 901[a][2]; Canavan v. Chase Manhattan Bank, 234 A.D.2d 493, 494). "Deceptive acts or practices" (General Business Law § 349) implies more than simply an invented scheme or marketing strategy, but an actual misrepresentation or omission to the consumer ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 325). Any oral communications that may have induced members of the putative class to purchase the policies, as well as the varied use of illustrations concerning the "vanishing premium" concept and the extent to which a purchaser might have been influenced by such illustrations, would require individualized proof in the case of each class member, which would in turn raise questions that would overwhelm any issues common to the class ( Carnegie v. H R Block, 269 A.D.2d 145, 147, lv dismissed 95 N.Y.2d 844; see also Russo v. Massachusetts Mut. Life Ins. Co., 192 Misc.2d 349, in which the court denied class certification in a "vanishing premium" case).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.