Yesawich, Jr., J., dissents and votes to reverse in a memorandum. Yesawich, Jr., J. (dissenting). I respectfully disagree. While exhaustion of administrative remedies before commencing suit is indeed the usual rule, that is not the situation where the agency’s action is asserted to be either unconstitutional or beyond its authority (see, Watergate II Apts, v Buffalo Sewer Auth., 46 NY2d 52, 57). Here, plaintiff challenges the applicability of Tax Law § 1105 (b) to Federally mandated interstate subscriber line charges. Whether a certain provision of the Tax Law applies in a given situation is an issue which may be presented to a court directly (see, e.g., Matter of Durham Temporaries v New York State Tax Commn., 132 AD2d 843, 844). It is, therefore, not necessary that plaintiff first seek administrative redress before initiating this action.
Further, in my view, plaintiff’s request for class action certification should have been granted. Essentially, this aspect of the parties’ dispute centers on whether class action treatment would be superior to other available methods for the fair and efficient adjudication of this controversy (CPLR 901 [a] [5]). In cases involving large numbers of individuals who sustained negligible damage, the provisions of CPLR article 9 must be liberally construed (see, 2 Weinstein-Korn-Miller, NY Civ Prac 1| 901.01). Practically, the damages suffered by any single RTC customer, said to be $0.18 per month for residential customers and $0.28 per line per month for business customers, would be insufficient to justify the expense of either individual litigation or administrative appeal; thus, I find unpersuasive RTC and the intervenors’ suggestion that the existence of an established administrative procedure for recouping tax refunds provides the best method for vindicating the rights of these members of the proposed class (2 Weinstein-Korn-Miller, NY Civ Prac |j 901.19).
Nor does the fact that the government is a party, without *804more, foreclose the possibility of class certification (see, e.g., Ammon v Suffolk County, 67 AD2d 959, 960). Although generally, when governmental operations are involved stare decisis will adequately protect subsequent litigants (see, Matter of Rivera v Trimarco, 36 NY2d 747, 749), '[sjtare decisis is not a certain or uniform remedy where damages are sought” (2 Weinstein-Korn-Miller, NY Civ Prac If 901.20). Here, plaintiff seeks money damages, in addition to injunctive relief, for amounts paid pursuant to an allegedly unauthorized tax. Questions of law and fact, virtually identical for all members of the proposed class, predominate over plaintiff’s individual concerns (see, CPLR 901 [a] [2]). Neither RTC nor intervenors suggest that plaintiff’s claims are not typical or that plaintiff will not fairly and adequately protect the interest of the class (CPLR 901 [a] [3], [4]). In sum, denying plaintiff’s request for class certification was error (see, Matter of Dudley v Kerwick, 84 AD2d 884, 885; Ammon v Suffolk County, 67 AD2d 959, 960, supra).
Because neither party argued the merits of the underlying legal issue before Supreme Court, and the record is not sufficiently developed to enable this court to resolve the legality of taxing end user common line charges, summary judgment is inappropriate at this time. A remittal for the purpose of allowing the parties to amplify the record so that the merits can be addressed by Supreme Court is in order.