Cammayo v. 1AND8, Inc.

Cammayo v 1AND8, Inc. 2026 NY Slip Op 05762 October 7, 2026 Appellate Division, Second Department Ottley Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Katherine Cammayo, etc., respondent, v 1AND8, Inc., etc., appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on October 7, 2026 2025-00971, 2025-08669, (Index No. 150173/24) Colleen D. Duffy, J.P. Barry E. Warhit Lourdes M. Ventura Lisa S. Ottley, JJ. Sheppard, Mullin, Richter & Hampton LLP, New York, NY (Bradley Rank, Joshua Schlenger, and Sascha Henry, pro hac vice, of counsel), for appellant. Bursor & Fisher, P.A., White Plains, NY (Phillip L. Fraietta, Eleanor R. Grasso, and Stefan Bogdanovich of counsel), for respondent. APPEALS by the defendant, in a putative class action to recover damages for a violation of Arts and Cultural Affairs Law § 25.07(4), from (1) an order of the Supreme Court, Richmond County (Lizette Colon, J.), dated December 5, 2024, and (2) an order of the same court dated June 12, 2025. The order dated December 5, 2024, denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint. The order dated June 12, 2025, insofar as appealed from, denied the defendant's motion for summary judgment dismissing the complaint. Ottley, J. [*1] OPINION & ORDER In this case of first impression, this Court determines that, under the circumstances, the voluntary payment doctrine does not preclude a cause of action for damages alleging a violation of Arts and Cultural Affairs Law § 25.07(4). For the reasons that follow, we conclude that the Supreme Court properly determined that (1) the plaintiff, Katherine Cammayo, has standing to commence this putative class action, pursuant to Arts and Cultural Affairs Law § 25.33, (2) the complaint states a cause of action alleging a violation of Arts and Cultural Affairs Law § 25.07(4), and (3) under the circumstances of this case, the voluntary payment doctrine does not preclude the cause of action alleging a violation of Arts and Cultural Affairs Law § 25.07(4). I. Material Facts and Procedural Background In January 2024, the plaintiff, individually and on behalf of others similarly situated, commenced this putative class action against the defendant, 1AND8, Inc., the owner and operator of the Museum of Ice Cream located in New York City, to recover damages that she allegedly sustained in October 2023, when she purchased, via the defendant's webpage, three tickets to the Museum of Ice Cream. According to the plaintiff, the total price of the three tickets equaled the sum of $172.20, of which $40.20 was for "Taxes and Fees." The plaintiff alleged, inter alia, that at the defendant's checkout page, she hovered over a question mark iconography next to the total price of $172.20, revealing that $11.70 of the total amount of $40.20 denominated as "Taxes and Fees" was for taxes and $28.50 was for service fees, calculated to be $9.50 per ticket. The plaintiff alleged that, thereafter, she purchased the tickets and received a purchase receipt for the transaction—showing an order total of $172.20 with a description delineating that $132 was for "3x Admission" and $40.20 was for "Taxes and Fees." According to the plaintiff, the purchase receipt did not delineate [*2]how much of the amount of $40.20 constituted taxes and how much constituted fees. The plaintiff alleged that the defendant violated Arts and Cultural Affairs Law § 25.07(4) by failing to disclose the total cost of the tickets at the beginning of the purchase process and failing to "clearly and conspicuously" disclose the service fees as required by the statute. The defendant answered the complaint, generally denying the allegations contained therein and asserting 13 affirmative defenses, including, but not limited to, lack of standing, failure to state a claim, estoppel/waiver, and lack of injury. II. Orders Appealed from A. The Defendant's Motion Pursuant to CPLR 3211(a) Prior to discovery, the defendant moved pursuant to CPLR 3211(a)(3) and (7) to dismiss the complaint, contending, among other things, that (1) the plaintiff failed to plead facts demonstrating an injury caused by the alleged violation of Arts and Cultural Affairs Law § 25.07(4) sufficient to confer standing, (2) the complaint failed to state a cause of action because the voluntary payment doctrine bars the claim asserted against the defendant, and (3) the plaintiff failed to allege an injury in accordance with Arts and Cultural Affairs Law § 25.33. In opposition, the plaintiff argued that (1) as a ticket purchaser, she has standing, (2) she was injured by paying a fee rendered unlawful by the defendant's violation of Arts and Cultural Affairs Law § 25.07(4), (3) the voluntary payment doctrine does not apply to unlawfully charged fees, and (4) a plaintiff need not plead facts negating an affirmative defense. In reply, the defendant maintained that the plaintiff did not suffer any concrete harm or actual damages because she did not allege that she had overpaid for the tickets, that the tickets were scarce, and/or that there were any time restraints to purchasing the tickets. In an order dated December 5, 2024 (hereinafter the December 2024 order), the Supreme Court denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint. B. The Defendant's Motion for Summary Judgment Following the completion of discovery, the defendant moved for summary judgment dismissing the complaint on the grounds that (1) Arts and Cultural Affairs Law is not a strict liability statute and, therefore, not every technical violation of the Arts and Cultural Affairs Law is per se actionable, (2) the plaintiff did not demonstrate actual damages by reason of the alleged violation of Arts and Cultural Affairs Law § 25.07(4), (3) the plaintiff was not forced to pay the service fee, (4) the total cost of the tickets was disclosed at the final checkout screen before the plaintiff purchased the tickets, (5) the plaintiff's claim against the defendant is barred by the voluntary payment doctrine because there was full disclosure prior to the plaintiff voluntarily making payment, and (6) the plaintiff's lack of knowledge about the fee being unlawful was not a mistake of law exception to the applicability of the voluntary payment doctrine. In opposition, the plaintiff argued that (1) pursuant to Arts and Cultural Affairs Law § 25.33, a violation of the Arts and Cultural Affairs Law, standing alone, is sufficient to establish an injury, (2) her payment of a fee, made unlawful by the defendant's failure to timely disclose, is an economic injury and she did not need to present evidence of separate damages apart from the payment of the fee, (3) her knowledge of the fee prior to purchasing the tickets is irrelevant because the statute requires that the total cost and fees be displayed prior to the ticket being "selected" for purchase, and (4) the voluntary payment doctrine does not preclude a cause of action to recover damages arising out of unlawful fees or for violations of the Arts and Cultural Affairs Law based on a lack of full disclosure. By order dated July 12, 2025 (hereinafter the July 2025 order), the Supreme Court, inter alia, denied the defendant's motion for summary judgment dismissing the complaint. III. Legal Analysis A. CPLR 3211(a)(3) "Standing is a threshold determination, resting in part on policy considerations, that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria" (Caprer v Nussbaum, 36 AD3d 176, 182 [internal quotation marks omitted]; see Frankel v J.P. Morgan Chase & Co., 193 AD3d 689, 690). "'[A] plaintiff, in order to have standing in a particular dispute, must demonstrate an injury in fact that falls within the relevant zone of interests sought to be protected by law'" (Kraus v Credit Control Servs., Inc., 237 AD3d 1083, 1084, quoting Caprer v Nussbaum, 36 AD3d at 183). "'The existence of an injury in fact—an actual legal stake in the matter being [*3]adjudicated—ensures that the party seeking review has some concrete interest in prosecuting the action which casts the dispute in a form traditionally capable of judicial resolution'" (Estate of Kraft v Kraft, 220 AD3d 748, 750, quoting Silver v Pataki, 96 NY2d 532, 539). "To confer standing, a claimed injury may not depend upon speculation about what might occur in the future, but must consist of cognizable harm, meaning that a plaintiff has been or will be injured" (Frankel v J.P. Morgan Chase & Co., 193 AD3d at 690). "'On a defendant's motion to dismiss the complaint based upon the plaintiff"s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff's lack of standing'" (Golden Jubilee Realty v Castro, LLC, 196 AD3d 680, 682, quoting BAC Home Loans Servicing, LP v Rychik, 161 AD3d 924, 925; see CPLR 3211[a][3]). "'To defeat a defendant's motion, the plaintiff has no burden of establishing its standing as a matter of law'" (Golden Jubilee Realty v Castro, LLC, 196 AD3d at 682, quoting Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 60). Here, the defendant failed to establish, prima facie, that the plaintiff lacked standing to commence this action (see Kraus v Credit Control Servs., Inc., 237 AD3d at 1084; Golden Jubilee Realty v Castro, LLC, 196 AD3d at 682). Arts and Cultural Affairs Law § 25.07(4) provides that the defendant shall disclose the total cost of the ticket, including ancillary fees, prior to the ticket being selected for purchase and that the "service charge, or any other fee or surcharge to the purchaser" be "disclosed in a clear and conspicuous manner" (id.). Arts and Cultural Affairs Law § 25.33 provides that "any person who has been injured by reason of a violation of this article may bring an action in his or her own name to enjoin such unlawful act, an action to recover his or her actual damages or fifty dollars, whichever is greater, or both such actions. The court may award reasonable attorney's fees to a prevailing plaintiff." Here, the complaint alleged, among other things, that the plaintiff was harmed/injured by paying a fee that was rendered unlawful when the defendant violated Arts and Cultural Affairs Law § 25.07(4) by (1) failing to disclose the total cost of the tickets, inclusive of all ancillary fees, at the beginning of the purchase process, (2) increasing the total cost of the ticket during the purchase process, and (3) failing to disclose in a clear and conspicuous manner the portion of the ticket price that represents a service charge, or any other fee or surcharge. Consequently, even if the taxes and fees were eventually disclosed to her before she purchased the tickets, the financial loss that the plaintiff suffered by paying an allegedly unlawful fee constituted an injury sufficient to confer standing (see Pires v The Bowery Presents, LLC, 44 Misc 3d 704, 709-710 [Sup Ct, NY County]; Montgomery v Peek Travel Inc., 2025 WL 3268805, *3-5, 2025 US Dist LEXIS 230931, *5-12 [SD NY Nov. 24, 2025, No. 25-cv-1015 (AS)]). B. CPLR 3211(a)(7) In the context of a motion to dismiss the complaint pursuant to CPLR 3211(a)(7), "the court must 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Brooklyn Tabernacle v Thor 180 Livingston, LLC, 242 AD3d 813, 814, quoting Leon v Martinez, 84 NY2d 83, 87-88). "A motion pursuant to CPLR 3211(a)(7) will be granted if the plaintiffs do not have a cause of action" (id.; see Leon v Martinez, 84 NY2d at 88). 1. The Voluntary Payment Doctrine The voluntary payment doctrine "bars recovery of payments voluntarily made with full knowledge of the facts, and in the absence of fraud or mistake of material fact or law" (ECI Fin. Corp. v Resurrection Temple of Our Lord, Inc., 213 AD3d 735, 736 [internal quotation marks omitted]; see Dillon v U-A Columbia Cablevision of Westchester, 100 NY2d 525, 526). Here, we conclude that, under the circumstances of this case, the voluntary payment doctrine does not bar the plaintiff's claims alleging violations of Arts and Cultural Affairs Law § 25.07(4) because such claims are predicated on a lack of full disclosure (see Summerville v Gotham Comedy Found., Inc., 765 F Supp 3d 293, 301-302 [SD NY]; Berryman v Reading Intl., Inc., 763 F Supp 3d 596, 607 [SD NY]). Arts and Cultural Affairs Law § 25.07(4) provides, in pertinent part, as follows: "Every operator or operator's agent of a place of entertainment . . . or platform that facilitates the sale [*4]. . . of tickets shall disclose the total cost of the ticket, inclusive of all ancillary fees that must be paid in order to purchase the ticket, and disclose in a clear and conspicuous manner the portion of the ticket price stated in dollars that represents a service charge, or any other fee or surcharge to the purchaser. Such disclosure of the total cost and fees shall be displayed in the ticket listing prior to the ticket being selected for purchase" (emphasis added). Here, the timing of the disclosure of the requisite information forms the basis of the plaintiff's claims alleging a violation of Arts and Cultural Affairs Law § 25.07(4), rather than whether the defendant made a full disclosure of that information and the customer made a voluntary payment. A plaintiff bringing a cause of action under this provision does not allege that they were unaware of the total ticket cost, including ancillary fees. Instead, they claim they received the information too late and/or that the ancillary fees lacked clear and conspicuous disclosure. Consequently, the voluntary payment doctrine cannot apply to causes of action alleging a violation of Arts and Cultural Affairs Law § 25.07(4) because the very application of such a doctrine would undermine the nature and purpose of the statute, which was enacted to ensure full disclosure of the total cost of a ticket prior to the ticket being selected for purchase (see Senate Introducer's Mem in Support of 2022 NY Senate Bill 9461, enacted as L ch 358 at Part B). Since the plaintiff stated a cause of action and the voluntary payment doctrine does not bar that cause of action, the Supreme Court properly denied the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint. C. CPLR 3212 "'[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact'" (Laffey Fine Homes of N.Y., LLC v 7 Cowpath, LLC, 210 AD3d 974, 975, quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324). Once the movant makes such a showing, "'the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action'" (id., quoting Alvarez v Prospect Hosp., 68 NY2d at 324). When considering a summary judgment motion, this Court must view the evidence "in the light most favorable" to the nonmoving party and afford the nonmoving party "the benefit of all reasonable inferences that can be drawn from the evidence" (Baab v HP, Inc., 211 AD3d 783, 783). Here, the defendant did not establish its prima facie entitlement to judgment as a matter of law dismissing the complaint. In support of its motion, the defendant did not provide any evidentiary proof to show that it disclosed the full ticket price, inclusive of taxes and fees, prior to the plaintiff selecting the tickets for purchase, that the ancillary fees were disclosed in a clear and conspicuous manner, or that the plaintiff did not suffer actual damages in the amount of $28.50. The defendant therefore did not establish its prima facie entitlement to judgment as a matter of law dismissing the complaint (see Alvarez v Prospect Hosp., 68 NY2d at 324; Laffey Fine Homes of New York, LLC v 7 Cowpath, LLC, 210 AD3d at 975). Notably, the defendant cannot satisfy its summary judgment burden merely by pointing to gaps in the plaintiff's proof (see M.V.B. Collision, Inc. v Allstate Ins. Co., 187 AD3d 881, 883). Further, for the reasons discussed above, the defendants failed to establish that the action was barred by the voluntary payment doctrine. Since the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint, we need not consider the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Even if the defendant had established its prima facie entitlement to judgment as a matter of law dismissing the complaint, in opposition, the plaintiff established that there are triable issues of fact as to whether the defendant clearly and conspicuously disclosed the portion of the purchase price attributable to ancillary fees. The plaintiff submitted evidence that the only way to see the service fee charged was to hover her computer mouse over the question mark iconography on the defendant's webpage. Since there are triable issues of fact as to whether the question mark iconography, which provided a breakdown of the fees charged, was sufficient to establish disclosure in a clear and conspicuous manner, as mandated by Arts and Cultural Affairs Law § 25.07(4), prior to the plaintiff selecting the ticket for purchase, the defendant's motion for summary judgment dismissing the complaint was properly denied (see Lonner v Simon Prop. Group, Inc., 57 AD3d 100;[*5]Carovillano v Sirius XM Radio Inc., 715 F Supp 3d 562 [SD NY]). Thus, we affirm the December 2024 order and the July 2025 order insofar as appealed from, as the Supreme Court properly denied both the defendant's motion pursuant to CPLR 3211(a) to dismiss the complaint and motion for summary judgment dismissing the complaint. IV. Conclusion Accordingly, the December 2024 order is affirmed, and the June 2025 order is affirmed insofar as appealed from. DUFFY, J.P., WARHIT and VENTURA, JJ., concur. ORDERED that the order dated December 5, 2024, is affirmed; and it is further, ORDERED that the order dated June 12, 2025, is affirmed insofar as appealed from; and it is further, ORDERED that one bill of costs is awarded to the plaintiff. ENTER: Darrell M. Joseph Clerk of the Court