With no explanation, chose the best option from "A", "B", "C" or "D". 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.

A: holding where plaintiffs stake in controversy disappears before there has been effort to certify class action the action must be dismissed
B: holding that because no class was certified at the time the individual claims were dismissed the class action was properly dismissed
C: 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
D: holding that the court below had properly dismissed the plaintiffs donnelly act class action as barred by cplr  901b
D.