Opinion
2061
October 30, 2003.
Order, Supreme Court, Bronx County (Paul Victor, J.), entered July 2, 2002, which granted plaintiff's motion for class certification and denied defendants' cross motion for summary judgment, unanimously modified, on the law, to grant partial summary judgment dismissing the complaint only insofar as its allegations of unauthorized fees relate to the Sheriff's administrative fee, and otherwise affirmed, without costs.
Brian J. Isaac, for plaintiff-respondent.
Drake A. Colley, for defendants-appellants.
Before: Andrias, J.P., Saxe, Williams, Marlow, Gonzalez, JJ.
Each element of the Sheriff's administrative fee, in connection with the New York City "Scofftow" program (NY City Administrative Code § 19-212), has a statutory basis (CPLR 8011[b][2],[3] and [d]). The same cannot be said for the towing charge, where a triable issue of fact exists as to the Sheriff's exaction of an amount exceeding the contracted fee. Similarly, the statutory right to poundage must be strictly construed (Personeni v. Aquino, 6 N.Y.2d 35, 37), and here the calculation was based upon more than just the value of the property levied upon (see S. Indus. v. Jeremias, 66 A.D.2d 178; Hollister v. Hollister, 33 A.D.2d 821), namely, the judgment as improperly augmented by additional fees in connection with the collection.
Among other reasons, the fact that the discrepancy in each case is relatively small, but the size of the potential class is large, militates in favor of class certification under the circumstances (see Tindell v. Koch, 164 A.D.2d 689).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.