action under the Donnelly Act (General Business Law § 340) because the treble damages remedy provided for in subsection 5 constitutes a ‘penalty’ within the meaning of CPLR 901(b).” Cox v. Microsoft Corp., 290 A.D.2d 206, 737 N.Y.S.2d 1 (N.Y.App.Div.2002). See also Paltre v. Gen. Motors Corp., 26 A.D.3d 481, 483, 810 N.Y.S.2d 496 (N.Y.App.Div. 2006) (“The treble damages provision [in New York’s Donnelly Act] is a penalty within the meaning of § 901(b). The plaintiffs’ Donnelly Act class action may not be maintained because the Donnelly Act does not specifically authorize the recovery of this penalty in a class action[.]”) (citations omitted); Sperry v. Crompton Corp., 26 A.D.3d 488, 489, 810 N.Y.S.2d 498 (N.Y.App.Div.2006), aff'd, 8 N.Y.3d 204, 831 N.Y.S.2d 760, 863 N.E.2d 1012 (2007) (<HOLDING>). As was discussed in Erie Railroad Co. v.
holding that a district court properly dismissed as barred by res judicata an independent action for rescission of a prior judgment on the basis of fraud where the plaintiff failed to mount a viable direct attack on the earlier judgment holding where plaintiffs stake in controversy disappears before there has been effort to certify class action the action must be dismissed holding that because no class was certified at the time the individual claims were dismissed the class action was properly dismissed holding that the court below had properly dismissed the plaintiffs donnelly act class action as barred by cplr  901b holding that district court properly dismissed claims in  2241 petition that had been decided in previous habeas action