Upon the foregoing papers, the motion by plaintiff Michael Amalfitano for an order granting class action certification pursuant to CPLR 901 and 902 and appointing said plaintiff as lead plaintiff and his attorneys as class counsel is granted to the extent of certifying this matter as a class action (as further defined herein), appointing Michael Amalfitano as lead plaintiff and appointing Beatie and Osborn LLP and Todd C. Bank as class counsel.

In this action, plaintiff alleges that defendants Sprint Corporation and Sprint Spectrum, L.P., d/b/a Sprint PCS (collectively, Sprint), as well as Tandy Corporation d/b/a Radio Shack (Radio Shack), failed to honor $50 rebate promotion which was offered with the purchase of a Qualcomm 2700 wireless telephone. Plaintiff asserts claims for fraud, breach of contract, negligent misrepresentation and a violation of General Business Law § 349.

At his deposition, plaintiff testified that he entered a Radio Shack store with the intention [*2]of purchasing a Qualcomm 2700 model wireless telephone (Model 2700), rather than the Qualcomm 1920 model featured in a Radio Shack newspaper advertisement which referred to a $50 rebate. However, according to plaintiff, a store employee told him that the model in which he was interested was eligible for the rebate and that the advertisement contained a "misprint." Plaintiff thereafter purchased the Model 2700. Plaintiff further testified that after he sent the rebate form and cash register receipt to Young America Corporation (Young America), the rebate administrator, his request was rejected because the model he purchased was not allegedly eligible for the rebate.

In his motion, plaintiff asserts that Sprint and Radio Shack "misrepresented to hundreds, if not thousands, of individuals across the country that they, the consumers, could receive a rebate for the Qualcomm 2700 using the Qualcomm 1920 rebate form." According to documents obtained from Young America, including a "call log," dozens of people were allegedly told by Radio Shack employees that they would be able to receive the rebate if they purchased the Qualcomm 2700 telephone. Plaintiff seeks to certify a class of "all purchasers of Qualcomm 2700 cellular phones with Sprint PCS service whose purchases were made at Radio Shack stores between July 20, 1998 and August 31, 1998."^[FN1] Plaintiff also seeks to have himself appointed as lead plaintiff in the class action and to have his attorneys, Beatie and Osborn LLP and Todd C. Bank, appointed as class counsel. In support of his request for class action certification, plaintiff asserts that the class contains "thousands of class members" since Radio Shack sold 21,000 Qualcomm 2700 telephones during the promotion period and more than 1600 people contacted Young America to discuss the rebate problem. Plaintiff adds that, even if individual issues exist as to whether a particular consumer relied upon the misrepresentation of a Radio Shack employee, the class may be certified, especially since "[i]ntent and reliance are not elements of either a breach of contract claim or a Section 349 [claim]."

In opposition to the motion, defendants contend that plaintiff's General Business Law § 349 claim is not proper for a class action because it applies to deceptive acts which occurred in New York and plaintiff has failed to demonstrate that other states have enacted similar laws. Further, because plaintiff did not allegedly rely upon any misrepresentations in making his purchase and was offered a $50 store credit after his rebate request was rejected, defendants argue that plaintiff is not a representative class member. Moreover, because each class plaintiff will have to testify as to whether he or she relied upon a misrepresentation and what circumstances gave rise to the misrepresentation, defendants maintain that the claims of the class members are not typical. Should class action certification be granted, defendants suggest that the class include only Radio Shack customers who purchased a Qualcomm 2700 telephone in New York State during the promotion period based upon a representation that the Model 2700 qualified for the rebate, who applied for a rebate and were rejected because of an incorrect telephone model number and who were offered neither a $50 rebate nor something of equivalent value.

In order to be entitled to proceed as a class action, the plaintiff must affirmatively establish each of the five prerequisite elements to class certification (CPLR 901, 902). Thus, plaintiff herein must establish: (1) numerosity; (2) the existence and predominance of common [*3]questions of fact and law between plaintiff's claim and those of the putative class members, (3) that plaintiff's claim is typical and representative of those of the class, (4) that plaintiff will fairly and adequately protect the interests of the class; and (5) that a class action is superior to other available methods for the fair and effective adjudication of the controversy (CPLR 901).^[FN2] Failure to make a showing of any of the requisite elements for class certification will result in a denial of the motion for certification (see e.g., Reifen v Nationwide Leisure Corp., 75 AD2d 551).

Defendants note that the representations allegedly made by Radio Shack employees to purchasers of the Model 2700 were verbal and, therefore, those communications would require individualized proof in the case of each class member which would, in turn, raise questions that would overwhelm any issues common to the class. However, the oral representations aside, plaintiff relies upon the rebate form which was distributed to and utilized by hundreds of purchasers of the Model 2700. Under the circumstances, questions of law and fact common to the proposed class members predominate over issues peculiar to individual class members (see Watts v Wing, 308 AD2d 391). Contrary to defendants' contention, plaintiff has stated that he entered the store with knowledge of the rebate and the representation that the rebate covered the Model 2700 was the reason he made such purchase at Radio Shack. Moreover, Radio Shack's subsequent offer of a store credit to plaintiff does not mean that he did not suffer any damages since he expected a return of cash after sending in his rebate form.

According to the records of Young America, 1,838 people purchased a telephone which was not covered by the rebate offer. While it is unclear whether all of those people purchased their telephones at Radio Shack, Young America's call records do indicate that 133 callers claimed to have been misinformed by a Radio Shack employee prior to their purchase. Since "numerosity is presumed at a level of 40 members" (see Consolidated Rail Corp. v Town of Hyde Park, 47 F.3d 473, 483), the number of proposed plaintiffs herein exceeds the threshold and numerosity is therefore satisfied.

Given the expertise of plaintiff's counsel, which is not disputed by defendants, and the fact that plaintiff's predicament would appear to be typical of those of the proposed class, it is evident that both plaintiff and his attorneys would adequately and fairly represent the interest of the class (see Conrad v Hackett, 149 Misc 2d 56). Accordingly, plaintiff's request for class action certification is granted.

Although class action certification is appropriate, defendants argue that the court should narrow plaintiff's definition of the proposed class which is "overly broad and not sustainable under New York law."

New York's Consumer Protection Act - - - General Business Law article 22-A - - - was enacted to provide consumers with a means of redress for injuries caused by deceptive acts and practices (see General Business Law § 349). General Business Law § 349, upon which plaintiff relies, requires that the transaction in which the consumer is deceived must occur in New York (see Goshen v Mutual Life Ins. Co. Of New York, 98 NY2d 314). Therefore, to the extent that the class action purports to assert General Business Law § 349 claims on behalf of its members, [*4]those claims must be limited to New York purchasers. On that basis, the argument has been made by defendants that plaintiff's claims would not be typical of the class and, thus, he would not be a representative plaintiff for the class. Plaintiff counters that argument by noting that other states have consumer protection statutes which are similar to General Business Law § 349. Unfortunately, plaintiff has not demonstrated that the statutes are comparable and that they require the same proofs (see Ackerman v Price Waterhouse, 252 AD2d 179). Since plaintiff has asserted claims for breach of contract, fraud and negligent misrepresentations which do involve the element of commonality, it is appropriate to dismiss the General Business Law § 349 claim from the class action complaint and allow plaintiff to proceed as lead plaintiff with respect to the remaining claims.

However, since plaintiff's claim is not simply that he (and others) did not receive a rebate but that they were promised one, the class proposed by plaintiff - - - to include all purchasers of Model 2700 cellular telephones at Radio Shack in a given period - - - is overboard. Given this court's dismissal of plaintiff's General Business Law § 349 claim and its rejection of defendants' position that customers who were offered a store credit were not damaged, defendants' proposed definition of the class is likewise rejected. Accordingly, class certification is granted to include those Radio Shack customers who purchased a Qualcomm 2700 cellular telephone between July 20, 1998 and August 31, 1998 and who applied for a rebate which was rejected on the basis that the model did not qualify for the rebate offer.^[FN3]

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.