LORRAINE BORDEN, ETC. plf-res, v. 400 EAST 55TH STREET ASSOCIATES, L.P., defap

9284N-9285N. LORRAINE BORDEN, ETC. plf-res, v. 400 EAST 55TH STREET ASSOCIATES, L.P., defap — Rosenberg & Estis, P.C., New York (Jeffrey Turkel of counsel), for ap — Bernstein Liebhard, LLP, New York (Gabriel G. Galletti of counsel), for res — Order, Supreme Court, New York County (Judith J. Gische, J.), entered April 13, 2012, which, upon renewal, granted plaintiff's motion for class certification and related relief, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 10, 2011, which denied plaintiff's motion for class certification, without prejudice to renew upon submission of an affidavit by plaintiff demonstrating that she is a proper class representative, unanimously dismissed, without costs, as academic.

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9284N-9285N. LORRAINE BORDEN, ETC. plf-res, v. 400 EAST 55TH STREET ASSOCIATES, L.P., defap — Rosenberg & Estis, P.C., New York (Jeffrey Turkel of counsel), for ap — Bernstein Liebhard, LLP, New York (Gabriel G. Galletti of counsel), for res — Order, Supreme Court, New York County (Judith J. Gische, J.), entered April 13, 2012, which, upon renewal, granted plaintiff’s motion for class certification and related relief, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered November 10, 2011, which denied plaintiff’s motion for class certification, without prejudice to renew upon submission of an affidavit by plaintiff demonstrating that she is a proper class representative, unanimously dismissed, without costs, as academic.

CPLR 901(b), which prohibits a class action to recover a penalty or minimum damages imposed by statute where the statute does not explicitly authorize a class recovery thereof, does not bar plaintiff’s putative class action. Plaintiff has waived her right to treble damages under Rent Stabilization Law (RSL) (Administrative Code of the City of NY) §26-516(a), and individual class members will be allowed to opt out of the class to pursue their treble damages claims, should they believe there is a lawful basis for doing so (see Downing v. First Lenox Terrace Assoc., __ AD3d __; Gudz v. Jemrock Realty Co., __ AD3d __ [decided simultaneously herewith]). Although plaintiff did not waive her right to reimbursement for alleged overcharges and interest, and for attorneys’ fees, those claims do not render her action an action to recover a penalty for purposes of CPLR 901(b) (see Downing; Gudz).

LORRAINE BORDEN, ETC. plf-res, v. 400 EAST 55TH STREET ASSOCIATES, L.P., defap

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