Opinion
March 5, 1979
In a proceeding pursuant to CPLR article 78 which was transformed by Special Term into an action for a declaratory judgment and a permanent injunction, the appeal is from an order of the Supreme Court, Dutchess County, entered May 16, 1978, which (1) granted plaintiff's motion for (a) an examination before trial and the production of certain records of the defendant and (b) a stay and an extension of the time within which to move to confirm class action status and (2) denied the defendant's cross motion for summary judgment. Order reversed, on the law, without costs or disbursements, the motion is denied and the cross motion is granted to the extent that the action is dismissed for failure to state a cause of action. In this action, plaintiff seeks to maintain a class action against the defendant New York State Department of Law because of the issuance of subpoenas in consumer fraud cases by certified mail instead of by personal service upon it and other persons, firms, corporations or associations similarly situated. As a general rule where governmental operations are involved and subsequent complainants will be adequately protected by the principles of stare decisis, a class action will not be permitted (see Matter of Martin v. Lavine, 39 N.Y.2d 72; Baumes v. Lavine, 38 N.Y.2d 296; Perez v. Dumpson, 58 A.D.2d 887). Since such is the case here the asserted class action claim does not state a cause of action. Where, unlike here, subsequent complainants will not be adequately protected, class action status will be confirmed (see Ammon v. Suffolk County, 67 A.D.2d 959). In the instant case the motion to stay and extend the time to confirm class action status and for an examination before trial and production of records must be denied and the action must be dismissed. Damiani, J.P., Titone, Suozzi and Shapiro, JJ., concur.