The opinion
Cammayo v 1AND8, Inc.
2025 NY Slip Op 32090(U)
June 12, 2025
Supreme Court, Richmond County
Docket Number: Index No. 150173/2024
Judge: Lizette Colon
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FILED: RICHMOND COUNTY CLERK 06/12/2025 04:37 PM INDEX NO. 150173/2024
NYSCEF DOC. NO. 134 RECEIVED NYSCEF: 06/12/2025
At IAS Part 21M of the Supreme
Court of the State of New York, held
in and for the County of Richmond, at
the Courthouse, located in Staten
Island, City and State of New York on
the 12th day of June 2025.
PRESENT: HON. LIZETTE COLON, JSC
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Katherine Cammayo
Motion Seq#6&7
Plaintiff(s), ORDER
-against-
INDEX NO. 150173/2024
1AND8, Inc. d/b/a Museum of Ice Cream
Defendant(s)
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Papers Numbered (NYSCEF)
Notice of Motion/OSC (MS#6)
And Affirmations/Affidavits Annexed___________________________________________________________95-106
Answering Affirmations/Affidavits in Opposition _________________________________________________118-129
Reply Affirmations/Affidavits _________________________________________________________________133
Notice of Motion/OSC (MS#7)
And Affirmations/Affidavits Annexed____________________________________________________________ 111-117
Answering Affirmations/Affidavits in Opposition ___________________________________________________130-131
Proposed Additional Respondent Affirmation ______________________________________________________132
L, Colon:
Defendant made a motion for summary judgment for an order pursuant to CPLR § 3212,
granting summary judgment in favor of Defendant and dismissing Plaintiff, Katherine
Cammayo’s, claims, and for such other and further relief as this Court deems appropriate.
Plaintiff made a motion (MS#7) for an order pursuant to Article 9 of the CPLR defining
the class that has been certified; approving the proposed notices; extending Plaintiff’s deadline to
file her motion for summary judgment; and granting such other, further, or different relief as the
Court deems just and proper.
Virtual oral arguments were held on June 3, 2025, and for the following reasons,
Defendant’s motion (MS#6) is hereby denied, and Plaintiff’s motion (MS#7) is hereby granted.
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OVERVIEW
Plaintiff commenced the instant action against the Defendant for an alleged violation of the
New York Arts and Cultural Affairs Law § 25.07 (4). Plaintiff alleges that the service fee is masked
under the ambiguous category of “Taxes & Fees” on Defendant’s website. Plaintiff, Katherine
Cammayo, is an individual consumer who purchased three admission tickets to the Museum of Ice
Cream NYC through Defendant’s website. Plaintiff seeks damages in this action individually and
on behalf of all other ticket purchasers for Defendant’s place of entertainment, as well as
reasonable attorneys’ costs and fees, and injunctive relief under New York Arts and Cultural
Affairs Law § 25.33.
Defendant made a motion (MS#6), at the close of discovery, seeking summary judgment
arguing that “the ACAL does not impose strict liability for technical violations of its notice
provision and plaintiff must meet her burden to establish her entitlement to recovery; the
undisputed evidence shows that plaintiff did not incur ‘actual damages’ by ‘reason of’ the alleged
violation of the A.C.A.L.; and that plaintiff’s claim is barred by the voluntary payment doctrine as
a matter of law.” See Memo. of Law in Supp., p. 8, 9, 16, NYSCEF #106. Plaintiff argues in
opposition that “Plaintiff suffered an injury and actual damages under A.C.A.L. § 25.07(4); and
the voluntary payment doctrine is inapplicable.” See Memo. of Law in Opp., p. 10, NYSCEF #118.
Defendant in reply argues that “A.C.A.L. §25.33 plainly requires that Plaintiff prove causation and
damages; none of Plaintiff’s cited authorities excuse her from proving the elements of causation
and actual damages under the A.C.A.L.; Plaintiff has not met her burden to raise a triable issue of
fact as to causation or actual damages; and that the voluntary payment doctrine bars Plaintiff’s
claim; and dismissal of Plaintiff’s claim will not subvert the legislative intent of the A.C.A.L..”
See Memo. of Law in Reply, p. 2, 3 5, 7, NYSCEF #133.
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Plaintiff also made a motion (MS#7) for clarification on the definition of the certified class
and an extension of time to file her summary judgment motion. The Plaintiff argues that she should
be granted an extension of time to file a summary judgment motion, so she can provide class notice,
and after notice is provided, the decision “would be binding on the Class.” See Memo. of Law in
Supp., p. 3, NYSCEF #112. Plaintiff also argues that an extension of time to file her summary
judgment motion will prevent her from “running afoul of the rule against one way intervention.”
Id.
Defendant argues in opposition “that the Nationwide Class, if certified, must be limited to
those individuals in the United States; and that Plaintiff has failed to show good cause as defined
by the Court of Appeals and her belated request for an extension of time to file a summary
judgment motion should be denied.” See Memo. of Law in Opp., p. 2-3, NYSCEF #131. Plaintiff
argues in reply that “[Defendant’s] challenge to the nationwide class definition is untimely and
improper; and the Court should grant Plaintiff’s requested extension to file her motion for
summary judgment.” See Memo. of Law in Reply, p. 1, 3, NYSCEF #132.
DISCUSSION
I. Defendant’s Motion for Summary Judgment
A motion for summary judgment shall be granted if, upon all the papers and proof submitted,
the cause of action or defense shall be established sufficiently to warrant the court as a matter of
law in directing judgment in favor of any party. N.Y. C.P.L.R. § 3212 (b). The motion shall be
denied if any party shall show facts sufficient to require a trial of any issue of fact. Id. The movant
has the initial burden to 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.
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To defeat summary judgment, the nonmoving party need only rebut the prima facie showing
made by the moving party so as to demonstrate the existence of a triable issue of fact. See Gluck
v. Mapfre Ins. Co. of New York, 221 A.D.3d 662, 663, 198 N.Y.S.3d 758, 760 (2023). Summary
judgment is a drastic remedy and should not be granted where there is any doubt as to the existence
of a triable issue of fact. See Goldin Real Est., LLC v. Shukla, 227 A.D.3d 674, 676, 212 N.Y.S.3d
117, 119 (2024).
The New York Arts & Cultural Affairs Law provides:
Every operator of a place of entertainment 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
purchase. Such disclosure of the total cost and fees shall be displayed in the ticket
listing prior to the ticket being selected for purchase . . . The price of the ticket shall
not increase during the purchase process.
N.Y. Arts & Cult. Aff. Law § 25.07 (4)
The A.C.A.L. also 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.” N.Y. Arts & Cult. Aff. Law § 25.33. The
Defendant argues that Plaintiff cannot show that any damages were cause “by reason of” the
alleged violation and Plaintiff cannot present evidence of “actual damages.”
The Defendant argues that its violations of the statute’s substantive proscriptions are technical
and not per se actionable, which the Court has already rejected twice. See NYSCEF #59 & 92. The
Court has also previously rejected that the Plaintiff’s claims are barred by the voluntary payment
doctrine. See NYSCEF #121. There are issues of fact as to whether Defendant failed to disclose
the “total cost of the ticket, inclusive of ancillary fees prior to the ticket being selected for purchase,
and whether Defendant failed to disclose in “clear and conspicuous manner the portion of the ticket
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price stated in dollars that represents a service charge, or any other fee or surcharge to the
purchaser.” N.Y. A.C.A.L. § 25.07(4).
Accordingly, Defendant failed to make out its prima facie case, and its motion for summary
judgment is hereby denied.
II. Plaintiff’s Motion to Define Certified Class & Extension of Time to File Summary
Judgment Motion
A. Certified Class
The A.C.A.L. applies to the sale of “tickets to events occurring in New York state, regardless
of the territories of origin of both the buyer and seller.” N.Y. Arts & Cult. Aff. Law § 25.01. The
Court granted Plaintiff’s Motion for Class Certification that contained the following class
definitions:
All individuals who purchased tickets to the Museum of Ice Cream NYC from
Defendant’s website museumoficecream.com or from BucketListers, Inc.’s
website bucketlisters.com from August 29, 2022 to March 27, 2024 (the
“Nationwide Class”).
All individuals in New York who purchased tickets to the Museum of Ice Cream
NYC from Defendant’s website museumoficecream.com or from BucketListers,
Inc.’s website bucketlisters.com from August 29, 2022 to March 27, 2024 (the
“New York Subclass”).
Id.
CPLR § 906 allows for subdivision of a class into subclasses, and each subclass is treated
as a class when appropriate. N.Y. C.P.L.R. § 906. The requirements for the certification of a class
are as follows:
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 questions affecting only individual members;
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
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5. A class action is superior to other available methods for the fair and efficient
adjudication of the controversy.
N.Y. C.P.L.R. § 901
Plaintiff now seeks clarification of the Class Certification Order and wants the Court to
determine whether one or both classes had been certified, since the April 22, 2025, Order did not
specify which class, or if both classes, were certified. Plaintiff sought to certify two separate
classes. The First Class was a Nationwide Class that Plaintiff defined as “all individuals who
purchased tickets to the Museum of Ice Cream NYC from Defendant’s website
museumoficecream.com or from BucketListers, Inc.’s website bucketlisters.com from August
29, 2022 to March 27, 2024.” See NYSCEF #78. The Second Subclass Plaintiff sought to certify
was defined by Plaintiff as “all individuals in New York who purchased tickets to the Museum of
Ice Cream NYC from Defendant’s website museumoficecream.com or from BucketListers,
Inc.’s website bucketlisters.com from August 29, 2022 to March 27, 2024.” Id.
The Court now clarifies that the Nationwide Class has been certified. Since Class
Members in the Nationwide Class and the purported New York Subclass consist of the same
commonality and typicality, and the Court sees no need to establish a separate subclass. The
Court also finds Defendant’s argument that the Nationwide Class must be limited to individuals
in the United States, to be contrary to the law. The A.C.A.L. applies to the sale of “tickets to
events occurring in New York state regardless of the territories of origin of both the buyer and
seller.” N.Y. Arts & Cult. Aff. Law § 25.01. Therefore, certification of the Nationwide Class is
appropriate.
Accordingly, the branch of Plaintiff’s motion seeking clarification on the class definition is
granted to the extent that the Court certifies the Nationwide Class and finds that the Class is
defined as all individuals who purchased tickets to the Museum of Ice Cream NYC from
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Defendant’s website museumoficecream.com or from BucketListers, Inc.’s website
bucketlisters.com from August 29, 2022, to March 27, 2024.
B. Extension for Summary Judgment
The United States Supreme Court held that “due process requires at a minimum that an
absent plaintiff be provided with an opportunity to remove himself from the class by executing
and returning an ‘opt out’ or ‘request for exclusion’ form to the court.” Phillips Petroleum Co. v.
Shutts, 472 U.S. 797, 812, 105 S.Ct. 2965, 2974, 86 L.Ed.2d 628 (1985). To file a belated
motion, the movant must demonstrate “good cause” for the delay in making the motion—a
satisfactory explanation for the untimeliness. See Brill v. City of New York, 2 N.Y.3d 648, 652,
814 N.E.2d 431 (2004).
It is a familiar doctrine that a class action judgment is binding upon class members who were
adequately represented in the action. See People ex rel. Spitzer v. Applied Card Sys., Inc., 11
N.Y.3d 105, 123, 894 N.E.2d 1, 13 (2008). For a summary judgment motion to have binding
effect on the Class Members, class notice must be disseminated, and the Class Members must be
afforded a reasonable opportunity to opt-out of the Class. See N.Y. C.P.L.R. § 903 (providing for
opt-out mechanism). “Opt-out rights ensure that class members will have the option of pursuing
individual actions for redress.” Jiannaras v. Alfant, 27 N.Y.3d 349, 352, 52 N.E.3d 1166, 1168
(2016).
The Court issued a Preliminary Conference Order on April 4, 2024, stating that “[s]ummary
judgment motions shall be made no later than 60 days after filing of the Notice of Issue.” See
P.C. Order, p. 5, NYSECF #9. The Note of Issue in this case was filed on February 28, 2025.
See Note of Issue: with Jury, NYSCEF #65. Therefore, summary judgment motions were to be
filed by April 29, 2025. However, potential Class Members have not yet been noticed nor have
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had an opportunity to opt-out. Since the instant action shall have a binding effect on all class
members, the Court has determined that Plaintiff has established good cause entitling her to an
extension of time to file her summary judgment motion. The Court need not address the
Plaintiff’s arguments as to the rule of one-way intervention.
Based on the foregoing, Defendant’s motion (MS#6) is denied, and Plaintiff’s motion (MS#7)
is granted to the extent that the Nationwide Class is certified, and time for Plaintiff to file her
summary judgment motion is extended. The Parties are to contact the Court once notice has been
provided, and the Court will determine the date by which the Plaintiff must file her summary
judgment motion.
E N T E R
HON. LIZETTE COLON, JSC
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