The New York Islanders Hockey Club, L.P secured a victory of sorts when a New York state trial court denied a bid by some ticketholders — who overpaid for regular season tickets in exchange for an opportunity to purchase playoff tickets — to expand a legal dispute from a handful of plaintiffs to hundreds of plaintiffs.
In early 2015, when it appeared that the Islanders would qualify for the Stanley Cup playoffs, the Islanders advertised a ticket package in which a purchaser could allegedly (1) buy ten regular season tickets with a $60 face value; and (2) acquire the right to purchase playoff tickets.
Plaintiff Shaun Zeitlin purchased two of the ten-ticket packages (20 tickets in total), each with a face value of $60, for which he paid a total of $1,225 (including a $25 convenience charge). Although the plaintiff paid a total of $1,225 for the package, the face value of the tickets he received allegedly amounted to less than that sum.
When the plaintiff called the Islander’s ticket office and inquired about the price discrepancy, he was allegedly informed that the cost above the ticket’s face value was a premium charged for “playoff (purchase) rights”.
It may be worth noting that some 449 fans purchased the ticket package, according to the defendant. The defendant further claimed that 330 of the foregoing purchasers actually “underpaid” for the package. There were, however, 119 purchasers who ultimately overpaid for the package, at least based upon the face value of the tickets they received, generating a total face-value overpayment of some $17,047, including the plaintiff’s $166 overpayment. The Islanders claimed that overpayments occurred because of the “overwhelming” response to the ticket plan which necessitated that they substitute games with a lesser ticket face value for sold-out, premium-type games.
The plaintiff sued on March 19, 2015 alleging that the defendant “engaged in false and deceptive business practices by failing to disclose to the plaintiff (and other members of the purported class), that purchasers of the plan would be charged a playoff premium and would receive inferior tickets with a lesser face value than that for which they bargained.”
The defendant answered that after it learned of the plaintiff’s lawsuit, it contacted most of the 119 patrons who paid more than the face value of the tickets they received, and offered refunds and other items in settlement of any refund claims. According to the Islanders, 101 of the 119 overpaying customers have, to date, accepted the refund offer and executed an irrevocable written release which was made part of the refund offer.
The plaintiff then sought a preliminary injunction: (1) prohibiting the defendant from communicating, utilizing and/or enforcing individual settlement offers made to members of the plaintiff’s proposed class until such time as the Court has reviewed and approved the contents of any such communications; (2) requiring the defendant, at its sole expense, to supplement and release communications with a court-approved notice from the plaintiff’s counsel which informs class members of their rights with respect to the within class action; and (3) directing the defendant to supply the plaintiff’s counsel with a list of the names and addresses of all ticket purchasers to whom the defendant mailed settlement and release communications, is determined as herein provided.
In its analysis, the court noted that to obtain a preliminary injunction, a movant must demonstrate by clear and convincing evidence: “(1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant’s favor (Matter of Rice, 105 AD3d 962, 963 N.Y.S.2d 327 [2d Dept. 2013]; Yedlin v. Lieberman, 102 AD3d 769, 961 N.Y.S.2d 186 [2d Dept. 2013]; CPLR 6301 see also, Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839, 840, 833 N.E.2d 191, 800 N.Y.S.2d 48 [2005]; Aetna Ins. Co. v. Capasso, 75 NY2d 860, 862, 552 N.E.2d 166, 552 N.Y.S.2d 918 [1990]; Armanida Realty Corp. v. Town of Oyster Bay, supra; CPLR 6301). ‘Conclusory statements lacking factual evidentiary detail warrant denial of a motion seeking a preliminary injunction’ (1234 Broadway LLC v. West Side SRO Law Project, 86 AD3d 18, 23-24, 924 N.Y.S.2d 35 [1st Dept. 2011]; see, Hui v. New Clients, Inc., 126 AD3d 759 [2d Dept. 2015]).
“With these principles in mind, the court agrees that the plaintiff has not demonstrated his entitlement to the status quo altering, provisional relief sought. More particularly, the plaintiff has failed to adequately detail the alleged imminent and non-speculative harm which would result in the absence of the requested injunctive relief, and has similarly failed to demonstrate that any claimed injury would not be otherwise compensable by money damages (American Commerce Ins. Co. v. Francois, 125 AD3d 903 [2d Dept. 2015]; East Coast Drilling, Inc. v. Total Structure Enterprise, Inc., 106 AD3d 688, 964 N.Y.S.2d 238 [2d Dept. 2013]; L & M 353 Franklyn Ave., LLC v. S. Land Development, LLC, 98 AD3d 721, 950 N.Y.S.2d 484 [2d Dept. 2012]). While the plaintiff claims that without injunctive relief with respect to, inter alia, the defendant’s settlement offers and communications, the putative class members ‘could’ sustain irreparable injury, he never explains precisely how this alleged harm would actually result. Rather, the plaintiff’s allegations with respect to the issue of irreparable or imminent harm are unsubstantiated and conjectural (American Commerce Ins. Co. v. Francois, supra,; Hui v. New Clients, Inc., supra, 759 Trump on the Ocean, LLC v. Ash, supra).”
In addition, the plaintiff “has failed to otherwise establish that a balancing of the equities supports an award of the relief sought on the motion (American Commerce Ins. Co. v. Francois, supra; Copart of Conn., Inc. v. Long Is. Auto Realty, LLC, 42 AD3d 420, 421, 839 N.Y.S.2d 791 [2d Dept. 2007]),” wrote the court.
Shaun Zeitlin, Individually and On Behalf of all Others Similarly Situated v. New York Islanders Hockey Club, L.P.; S.Ct.N.Y., Nassau Co.; 47 Misc. 3d 1220(A); 2015 N.Y. Misc. LEXIS 1632; 2015 NY Slip Op 50728(U); 5/14/15
Attorneys of Record: (for plaintiff) Blau Leonard Law Group, LLC, Huntington, NY; Kleinman LLC, Uniondale, NY. (for defendant) Farrell Fritz, P.C., Uniondale, NY.
