In a 4-3 decision last month, a divided New York Court of Appeals held that where an action brought as a class action is voluntarily dismissed, CPLR 908 requires both (1) judicial approval and (2) notice to the putative class, even where the class has not been certified, and even if no class certification motion has been made. Desrosiers v. Perry Ellis Menswear, 2017 NY Slip. Op. 08620, 2017 WL 6327106 (Ct. App., Dec. 12, 2017). In rejecting an appeal to overrule a 35-year-old First Department precedent, the court described changes proposed for CPLR 908 in two Reports of the New York City Bar and a bill introduced in 2016, and held that this was the proper approach to change the existing reading of the rule. 2017 WL 6327106 at *5.
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