Bronts v. Kirwan ( 1977 )

In an action, inter alia, to enjoin officers of the New York State Police from removing or evicting any person from real property when such person entered into possession of the real property as an incident of employment, plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Orange County, entered September 8, 1975, as dismissed the complaint against respondents. Order affirmed insofar as appealed from, without costs or disbursements. The plaintiff is not such a representative of a class as would entitle him to bring this action as a class action and, considered as an action by him individually, the complaint fails to set forth a cause of action against the respondents. Cohalan, Acting P. J., Rabin and Shapiro, JJ., concur; O’Connor, J., dissents and votes to modify the order by adding thereto a provision granting plaintiff leave to amend his complaint as against respondents so as to set forth facts sufficient to constitute a cause of action against them, with the following memorandum: It is true that no class action lies herein (cf. Matter of Jones v Berman, 37 NY2d 42; Matter of Bey v Hentel, 36 NY2d 747, 749; Ray v Marine Midland Grace Trust Co., 35 NY2d 147), and that the complaint pleads no cognizable cause of action against respondents. However, the nature of plaintiff’s allegations against respondents requires in the interests of justice, that he be given leave to amend his complaint, if he be so advised, so as to set forth, with particularity, the facts constituting respondents’ direct involvement, if any, in his allegedly wrongful eviction.