Banks v. County of Suffolk , 519 N.Y.S.2d 657 ( 1987 )

In an action to, inter alia, recover fees paid to the Suffolk County Clerk to defray the cost of tax map verification prior to the recording of conveyances of real property affecting land in Suffolk County, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Lama, J.), dated March 4, 1986 as granted the plaintiff’s motion for class action certification.

Ordered that the order is reversed insofar as appealed from, with costs, the motion is denied, and the complaint is dismissed.

The plaintiff brought this action to, inter alia, challenge the validity of a $3 certification fee which has been charged by the defendant County of Suffolk since 1977 for verifying tax map designations before certain real property instruments are recorded, and to recover all such fees which have been collected by the county.

A hearing was held to determine whether there was a sufficient evidentiary basis to support the prerequisites for a class action established by CPLR 901. At the hearing, the plaintiff stated that the first time he paid the tax map verification fee to the defendants was in 1981. Since the fee has been retroactively validated by the Legislature as of November 1, 1980 (see, L 1984, ch 484, § 1), the plaintiff would be unable to recover any tax map verification fees he had paid to the defendants. Consequently, this plaintiff would be unable to fairly and adequately protect the interests of the class, and class action certification must be denied (see, CPLR 901 [a] [4]). Niehoff, J. P., Lawrence, Weinstein and Kunzeman, JJ., concur.