GIOVANNIELLO v. CAROLINA WHOLESALE OFFICE MACHINE COMPANY INC (2006)

In a putative class action, inter alia, to recover damages for violation of the Telephone Consumer Protection Act (47 USC § 227), the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (McCarty III, J.), dated November 23, 2004, as denied his motion for class certification pursuant to CPLR article 9. The appeal brings up for review so much of an order of the same court dated January 31, 2005, as, upon reargument, adhered to the original determination (see CPLR 5517[b] ).

ORDERED that the appeal from the order dated November 23, 2004, is dismissed, as the portion of the order appealed from was superseded by the order dated January 31, 2005, made upon reargument;  and it is further,

ORDERED that the order dated January 31, 2005, is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant.

 For the reasons set forth in Rudgayzer & Gratt v. Cape Canaveral Tour & Travel, 22 A.D.3d 148, 799 N.Y.S.2d 795, a class action may not be maintained in this case (see CPLR 901[b];  Weber v. Rainbow Software, 21 A.D.3d 411, 799 N.Y.S.2d 428;  Giovanniello v. Hispanic Media Group USA, 21 A.D.3d 400, 799 N.Y.S.2d 800;  Ganci v. Cape Canaveral Tour & Travel, 21 A.D.3d 399, 799 N.Y.S.2d 737;  Bonime v. Bridge 21, 21 A.D.3d 393, 799 N.Y.S.2d 417;  Bonime v. Discount Funding Assoc., 21 A.D.3d 393, 799 N.Y.S.2d 418).   Moreover, since a motion for leave to reargue “does not offer an unsuccessful party, as here, successive opportunities to present arguments not previously advanced” (Pryor v. Commonwealth Land Tit. Ins. Co., 17 A.D.3d 434, 436, 793 N.Y.S.2d 452), the plaintiff's argument that CPLR 901(b) does not prohibit maintenance of a class action seeking injunctive relief, which was not presented in the original motion before the Supreme Court, was not properly raised in the motion for leave to reargue (see Amato v. Lord & Taylor, 10 A.D.3d 374, 375, 781 N.Y.S.2d 125).