Summary
holding that defendant's fees could not be found "excessive" under Section 349 of the NYGBL where those fees were "always disclosed by [defendant]"
Summary of this case from Fishon v. InteractiveOpinion
September 8, 1994
Appeal from the Supreme Court, New York County (Stephen G. Crane, J.).
Plaintiff's first cause of action, brought under section 349 Gen. Bus. of the General Business Law which prohibits deceptive acts and practices, should have been dismissed. Although plaintiff contends defendant's fees are "excessive", there is no dispute that such fees are always disclosed by Ticketmaster. Therefore, the "challenged business practices" do not "violate the prohibition against deceptive business practices under General Business Law § 349, since the record shows that these practices are fully disclosed prior to [the sale of tickets]" (Lewis v Hertz Corp., 181 A.D.2d 493, 494, lv dismissed 80 N.Y.2d 893 [emphasis added]).
Further, the allegations of plaintiff's counsel in a hearsay affirmation were insufficient to raise any issue of fact, and the conclusory and speculative plea for further discovery should have been denied. While plaintiff alleged collusion between defendant and promoters in allocation of tickets, plaintiff could and should have availed herself of the administrative filings required pursuant to the Arts and Cultural Affairs Law to establish a nexus between her speculation and the actual ratio of box office sales to Ticketmaster sales.
Likewise, the IAS Court erred in not dismissing the fourth cause of action, brought pursuant to General Business Law § 340 (Donnelly Act), charging defendant with entering "into contracts in restraint of trade" and engaging "in monopolistic practices violative of GBL 340". While plaintiff alleged a conspiracy, the conclusory allegations were legally insufficient to make out a violation of the Donnelly Act (Creative Trading Co. v Larkin-Pluznick-Larkin, 75 N.Y.2d 830, revg for reasons stated in dissenting mem of Sullivan, J., 148 A.D.2d 352, 354-357). Furthermore, a Donnelly Act violation to restrain trade can only occur when the "conspirators" are in competition with one another or with the plaintiff. This situation is not present herein, where defendant and the "venues" which it deals with, such as theatres, stadiums, arenas and promoters, are in the respective positions of agent and principal, not competitors (see, Fuchs Sugars Syrups v. Amstar Corp., 602 F.2d 1025, 1031, cert denied 444 U.S. 917; Dawn to Dusk v. Brunckhorst Co., 23 A.D.2d 780, 781). Finally, the IAS Court sustained the sixth cause of action for unjust enrichment because it "hinges on the practices claimed by plaintiff to be illegal". Since we find the other causes of action alleging illegality to be meritless, this cause of action must also fail.
However, the IAS Court properly denied plaintiff's cross motion to add a seventh cause of action. While plaintiff sought to assert a new claim under article 25 of the Arts and Cultural Affairs Law, in section 25.29 (1), the Legislature exempted the very activity of which plaintiff complained. Agents of the operator, such as defendant, are not precluded from charging a service fee and that section does not require such charges to always be the same.
We have examined plaintiff's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Carro, Ellerin and Asch, JJ.