The sole issue in this case is whether "a class action is superior to other available methods for the fair and efficient adjudication of the controversy” (see CPLR 901, subd a, par 5). My brother Justice Suozzi has given a fair and impartial overview of the facts of this case. I would add to that, however, the allegations made by some of the individual plaintiffs.
John and Kathleen Smith are, according to the second amended complaint which appears in the appendix on appeal, white residents of the Town of Brookhaven, residing in Patchogue. The Smiths have six children. Mr. Smith is unemployed and receives public assistance. Because of their low *252income, the Smiths must rent their housing. The only rental units in Brookhaven large enough to meet the Smiths’ needs are individual homes, but house rentals in the town are usually on a temporary basis prior to the sale of the unit by the owner. The said complaint alleges that the Smiths therefore "stand in jeopardy of being forced to locate alternative housing as they have been compelled to do on four separate occasions since 1970.” Ironically, an affidavit in support of plaintiffs’ motion to maintain a class action, states that the Smith family now resides at Wading River in the Town of Southampton. The affidavit alleges that "Brookhaven’s lack of decent, lower cost housing opportunities has now resulted in the Smiths being forced into housing outside of Brookhaven.” As to another of the plaintiffs, Ingrid Evans, the second amended complaint alleges that she had lived with her two children in a deteriorated structure in the Eastport section of Brookhaven. She was forced to leave that residence but was unable to locate decent housing she could afford in Brookhaven. Thus, she moved into her sister’s apartment in a "deteriorating 'welfare’ complex” in Riverhead. It is alleged that this Black former resident "seeks to move back to Brookhaven” from the "overcrowded” apartment in which she now finds herself, but that she "has been and continues to be unable to find suitable decent housing she could afford in the Town.” The afore-mentioned affidavit in support of plaintiffs’ motion to maintain a class action, states that, plaintiff Evans has subsequently managed to secure housing in Brookhaven, but that "[i]n order for [her] to secure a decent housing unit for herself and her two children * * * she is forced to pay a higher rent than she can afford.”
Margaret Melendez is a white low-income resident of Brook-haven receiving public assistance, who lives with her seven children in Patchogue. Since 1972 plaintiff Melendez has been forced to relocate on five separate occasions and the second amended complaint alleges that "the home she currently is renting has been put up for sale by the owner.” The affidavit in support of plaintiffs’ motion to maintain a class action indicates that plaintiff Melendez is now living in Port Jefferson Station. It states that she was "recently notified that the housing she lives in has been the subject of a V.A. foreclosure action and she must therefore vacate the premises.”
Kyger C. Lohman, a white graduate student at Stony Brook University, and Gayle Lohman, a nursery school teacher, *253reside in Setauket, in the Town of Brookhaven. Due to their low income the Lohmans have been compelled to reside in a group situation with three other parties in a house. The second amended complaint alleges that the Lohmans are unable to find affordable alternative housing in the vicinity of Stony Brook University.
Terrance Bostwick is a Black graduate student at Stony Brook University. Because of repeated unsuccessful efforts to locate affordable housing in the area of the university, plaintiff Bostwick "has been forced to reside temporarily in his office at Stony Brook.”
The affidavit in support of plaintiffs’ motion to maintain a class action states that both the Lohmans and Mr. Bostwick have, since the original filing of the complaint, graduated and moved from the area. The affidavit states, however, that the defendants have agreed to stipulate to a substitution of current Stony Brook students who have been unable to secure decent and adequate housing near the university.
Although there are other plaintiffs in this case, the allegations and the migrations of these seven individuals are recounted above since they are illustrative of the need for maintenance of a class action. While the organizational plaintiffs are, presumably, bona fide and very competent representatives of the people who are allegedly injured by Brookhaven’s zoning policies, the presence of the individual plaintiffs serves to impart an element of specificity, immediacy, and direct human need into what might otherwise be viewed as an academic exercise in theoretical swordplay. Theirs is an intimate stake in the resolution of the lawsuit, one which is truly reflective of the class they seek to represent. It cannot be gainsaid that the individual plaintiffs have every right to join the organizational plaintiffs in this suit, nor that their withdrawal would tend to depersonalize what is ultimately a very human conflict.
There is no disagreement among the parties, nor among the members of this court, that plaintiffs have satisfied the first four of the five criteria set forth in CPLR 901 (subd a). Those prerequisites to maintenance of a class action are:
"1. the class is so numerous that joinder of all members, whether otherwise required or permitted, is impracticable;
"2. there are questions of law or fact common to the class which predominate over any question affecting only individual members;
*254"3. the claims or defenses of the representative parties are typical of the claims or defenses of the class;
"4. the representative parties will fairly and adequately protect the interests of the class; and
"5. a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” (CPLR 901, subd a.)
There is divergence of opinion, however, over whether the fifth, and last, of those statutory standards has been met—to wit, whether "a class action is superior to other available methods for the fair and efficient adjudication of the controversy.”
The majority of this court has construed the language of the statute narrowly, holding in effect that a successful attack on the town’s zoning ordinance and practices by any one of the named plaintiffs would, by reason of stare decisis, "automatically benefit all persons in the classes claimed to be represented regardless of whether they are made plaintiffs in this action through the vehicle of a class action.” It is said that the danger of withdrawals from the suit by individual plaintiffs is . "speculative at best” and that "the three organizational plaintiffs are clearly committed to pursuing this matter to its conclusion” anyhow. Finally, it is argued that the possibility of obtaining attorneys’ fees, available at the court’s discretion in a class action (CPLR 909), should not even be considered in deciding whether the maintenance of a class action would be a superior method of adjudication.
I would read the statute more broadly. Given the fact that there are individual plaintiffs in this action, which draws breath and soul from their presence, I believe a key consideration in this case is the mobility which is inevitable in a proceeding as drawn out as this one. The action was commenced more than three years ago, in November, 1975. Because of motions to dismiss, prior appeals, etc., an answer was only recently interposed. As the discussion above concerning seven of the individual plaintiffs shows, people simply do not anchor themselves to one place—particularly when they are living in substandard housing or are obliged to house a large family on a small income. If the injustice these plaintiffs allege really does exist, that very injustice serves to disturb the residential stability necessary to overcome it.
The four subclasses of plaintiffs are detailed in the opinion of the majority. The continued viability of at least two of these *255subclasses—the nonresidents of Brookhaven who are compelled to reside in inadequate housing outside of the town and the Stony Brook University students—is somewhat fragile because of the problem of standing. Fortuitously for the plaintiffs, John and Kathleen Smith moved out of Brookhaven during the period of time that Ingrid Evans (the sole nonresident plaintiff in the second amended complaint who was found by the courts to have standing) moved back in. Had the only move been that of plaintiff Evans, defendants could have moved for a dismissal of the "nonresidents” cause of action. Likewise, the difficulty in maintaining the "Stony Brook” subclass should be obvious. Although defendants did stipulate to a substitution of present Stony Brook students for the Lohmans and Mr. Bostwick, the tenuous nature of that subclass should not be masked by defendants’ current largess.
Nor is the subclass of "all low and moderate-income and minority citizens of the Town * * * who reside in substandard and inadequate housing”, an unassailable entity. Appellants’ brief indicates that "[s]everal of the individual low income plaintiffs have, in fact, temporarily improved their housing situations * * * Indeed, not one of the individual low income plaintiffs found to have standing in this case is currently residing in the housing unit [he] lived in when the complaint was originally served. In most instances, the plaintiffs have lived in three to four different locations since this action was undertaken.”
These facts contradict the majority’s assessment that future housing shifts by the individual plaintiffs are "speculative”. Maintenance of this action in a class form would insure that the claims of the various subclasses would not be mooted, since "the class of unnamed persons * * * [will have] acquired a legal status separate from the interests] asserted by [the individual plaintiffs]” (see Sosna v Iowa, 419 US 393, 399). In interpreting the Federal rule which formed the pattern for the enactment of CPLR 901 (2 Weinstein-Korn-Miller, NY Civ Prac, par 901.03), the courts have considered it "dispositive” on the question of "superiority” that the action would go no further without class suit designation (see Korn v Franchard Corp., 456 F2d 1206).
It is no answer that defendants have allowed liberal substitution of parties. Aside from the fact that defendants’ tolerant attitude is subject to change at any moment (and, for tactical reasons, such a change might be expected as soon as the "class *256action” issue is finally determined in their favor), the constant substitution of parties can hardly be defended as a more "efficient” method for the adjudication of the controversy (see CPLR 901, subd a, par 5).
Nor is it decisive that the organizational plaintiffs are "committed to pursuing this matter to its conclusion.” None of the organizations allege injury to themselves as organizations, and therefore their standing derives solely from their representation of "members who have been injured in fact, and thus could have brought suit in their own right” (see Simon v Eastern Ky. Welfare Rights Organization, 426 US 26, 40). Significantly, the town has not heretofore challenged the standing of either Suffolk Housing Services or the Brookhaven Housing Coalition. In substantially denying a prior motion to dismiss the complaint, Special Term described "their standing [as] questionable” (Suffolk Housing Servs. v Town of Brookhaven, 91 Misc 2d 80, 92, mod 63 AD2d 731). The third organizational plaintiff, the Patchogue-Brookhaven Branch of the NAACP, was found to have standing on the ground that the second and fourth causes of action claimed discrimination against minority group persons.
In the event the individual plaintiffs’ claims were to be mooted by reason of residential shifts, it is not inconceivable that the town would mount an attack on Suffolk Housing Services and the Brookhaven Housing Coalition on the basis of lack of standing. Were they successful, it appears that all subclasses except that composed of Brookhaven homeowner taxpayers, who allege that they have been "deprived of the opportunity of living in a racially * * * balanced community,” would be nonsuited. The possibility exists that this suit could be reduced from its present form to one based solely on alleged racial discrimination. That is obviously not the main thrust of the instant action, and it is apparent that the ability of these individual plaintiffs to "remain” in this suit is important not only from a moral or tactical standpoint, but for technical legal reasons as well.
The possibility that these plaintiffs may be entitled to attorneys’ fees in the event they can maintain this as a class action is also to be taken into account in assessing the superiority of the class form. "[T]he traditional American rule ordinarily disfavors the allowance of attorneys’ fees in the absence of statutory or contractual authorization” (Hall v Cole, 412 US 1, 4; 20 Am Jur 2d, Costs, § 72; 22 Am Jur 2d, *257Damages, § 165). New York law is in accord with the so-called "American” rule (3 NY Jur, Attorney and Client, § 83).
One such statutory authorization for an award of attorneys’ fees is contained in CPLR 909. That section provides that "[i]f a judgment in an action maintained as a class action is rendered in favor of the class, the court in its discretion may award attorneys’ fees to the representatives of the class based on the reasonable value of legal services rendered and if justice requires, allow recovery of the amount awarded from the opponent of the class.” The purpose of this section is to provide access to the courts in a proper case for persons who could not otherwise feasibly bring individual actions.
"In many class action situations, involving such claims as those of consumers, persons damaged by violation of environmental protection statutes or to enforce various regulatory provisions, the interest of each member of the class may be miniscule in comparison to the size of the controversy and to the legal time and effort which would be involved. No one of these class members could feasibly bring an individual action since the legal fees might exceed the amount of the individual claims and most competent attorneys would be unwilling to handle such a small case. Thus it may be that the only way that the wrongs to these persons can be remedied is through a class action. To provide the incentive to competent and experienced attorneys to handle the complex problems which are inherent in class actions and to assure forceful prosecution of such actions, it is essential that the court have power to award appropriate counsel fees. Since it would be unreasonable to require the representative parties to pay the fees, for the same reasons that an individual suit is unfeasible, the most just and reasonable solution is to award the payment of fees out of the fund created for the benefit of the class and thus spread the litigation expenses among those who stand to benefit from the judgment” (2 Weinstein-Korn-Miller, NY Civ Prac, par 909.01). Where there is no fund the court may, in the interest of justice, allow recovery of the amount awarded from the opponent of the class (2 Weinstein-Korn-Miller, NY Civ Prac, par 909.02).
The purpose of CPLR 909 dovetails with one of the main criteria employed by the courts in assessing whether a class action would be superior to other methods of adjudication. Maintenance of a class action will be considered "superior to other available methods for the fair and efficient adjudication *258of the controversy” where "[t]he individual members of the proposed classes have little interest in pressing their relatively small claims in the absence of a class action and it is unlikely these claims could be vindicated in any other manner” (Matter of Antibiotic Antitrust Actions, 333 F Supp 267, 271). That is precisely the case at bar. It is doubtful whether these individual plaintiffs would have pressed their claims without the class action form with its attendant possibilities for recovery of attorneys’ fees.
The majority’s fear, that "[t]o allow a class action in the case at bar would signal an open-ended invitation to the initiation of class actions against governmental bodies * * * for no valid * * * purpose other than the recovery of attorneys’ fees”, perceives a baseless spectre. All of the aforementioned five criteria for class action maintenance must be sustained. A spurious action would likely founder well before reaching consideration of the "superiority” requirement here at issue. Not surprisingly, the Federal courts "have generally held that if all other prerequisites have been satisfied, then the class action is the most effective means of proceeding” (2 Weinstein-Korn-Miller, NY Civ Prac, par 901.11; see, e.g., Elkind v Liggett & Myers, 66 FRD 36). Furthermore, the courts can surely be entrusted to soundly exercise the discretionary power given them by the statute. Only where "justice requires” will attorneys’ fees be awarded by the courts (CPLR 909).
The majority opinion properly recognizes that there is no per se rule proscribing the maintenance of class actions against governmental bodies (see, also, Ammon v Suffolk County, 67 AD2d 959; Beekman v City of New York, 65 AD2d 317). It would, however, construe the "superiority” requirement in CPLR 901 (subd a, par 5) in a very narrow way; one which looks only to the potential end result of the litigation. I would look to the course of the litigation itself, and hold that both a fairer and more efficient adjudication of this controversy would be had through maintenance of a class action. This is especially so because of the presence of the individual plaintiffs, the fundamental grievants against the town.
Accordingly, I would reverse Special Term and grant plaintiffs’ motion for an order maintaining the action as a class action.
Cohalan and Martuscello, JJ., concur with Suozzi, J.; Margett, J., dissents and votes to reverse the order and grant *259class action certification, with an opinion, in which Hopkins, J. P., concurs.
Order of the Supreme Court, Suffolk County, dated October 12, 1978, affirmed, without costs or disbursements.