Opinion
February 28, 1995
Appeal from the Supreme Court, New York County (William Davis, J.).
The representative plaintiff's allegations that defendant practiced some form of bad faith or unfair dealing in the performance of the parties' contract were not addressed in the prior order of this Court sustaining plaintiff's third and tenth causes of action on motions for summary judgment ( 181 A.D.2d 493, lv dismissed 80 N.Y.2d 893). We now conclude that the representative plaintiff has failed to adduce any proof of having suffered the injuries she alleges on behalf of the class, and thus is "`simply not eligible to represent a class of persons who did allegedly suffer injury'" (General Tel. Co. v. Falcon, 457 U.S. 147, 156), if there be such person. Since this Court's prior approval of a class action was based on the assumption that the representative plaintiff shared some of the causes of action of the putative class, albeit not necessarily all (see, Weinberg v Hertz Corp., 116 A.D.2d 1, 6-7, affd 69 N.Y.2d 979), and since the current representative plaintiff shares none, decertification was proper.
We have considered plaintiff's remaining arguments and find them to be without merit.
Concur — Murphy, P.J., Ellerin, Kupferman, Williams and Tom, JJ.