[*1]
Zeitlin v New York Islanders Hockey Club, L.P.
2015 NY Slip Op 50728(U) [47 Misc 3d 1220(A)]
Decided on May 14, 2015
Supreme Court, Nassau County
Marber, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 14, 2015
Supreme Court, Nassau County


Shaun Zeitlin, Individually and On Behalf of all Others Similarly Situated, Plaintiff,

against

New York Islanders Hockey Club, L.P., Defendant.




002484/15


Attorneys for Plaintiff:
Blau Leonard Law Group, LLC
23 Green Street, Suite 303
Huntington, NY 11743
(631) 458-1010

Kleinman LLC
626 RXR Plaza
Uniondale, NY 11556
(516) 522-2621

Attorneys for Defendant:
Farrell Fritz, P.C.
1320 RXR Plaza
Uniondale, NY 11556
(516) 227-0700


Randy Sue Marber, J.

Papers Submitted:

Order to Show Cause...................x

Memorandum of Law...................x

Affidavit in Opposition.................x

Memorandum of Law...................x

The Plaintiff's motion, brought by Order to Show Cause, pursuant to CPLR § 6301, seeking an order granting it a preliminary injunction (1) prohibiting the Defendant, New York Islanders Hockey Club, L.P., 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 early 2015, when it appeared that the New York Islanders Hockey team would qualify for the Stanley Cup playoffs, the Defendant, New York Islanders Hockey Club, L.P. (hereafter "the Defendant"), advertised a ticket package pursuant to which a purchaser could: (1) buy ten regular season tickets with a $60.00 face value; and (2) acquire the right to purchase playoff tickets (See Complaint attached as Exhibit "A" to Plaintiff's Order to Show Cause at ¶¶ 12-15).

The Plaintiff, Shaun Zeitlin (hereafter "the Plaintiff"), purchased two of the ten-ticket packages (20 tickets in total), each with face value of $60.00, for which he paid a total of $1,225.00 (including a $25.00 convenience charge) (Id. at ¶¶ 13-14). Although the Plaintiff paid a total of $1,225.00 for the package, the face value of the tickets he received amounted to less than that sum, i.e., they totaled only $1,045.00 in face amount value. More specifically, the Plaintiff claims he actually received 18 tickets with a face value of $50, and two tickets with a face value of $67.00, for a total face value of $1,045.00 (Id. at ¶¶ 13-14). When the Plaintiff called the Defendant's ticket office and inquired about the price discrepancy, he was allegedly informed that the cost above the ticket's face value, here some $166.00, (discounting the convenience fee), was a premium charged for "playoff (purchase) rights" (Id. at ¶¶ 15-16).

The Defendant asserts that some 449 fans purchased the ticket package. The Defendant further asserts that 330 of the foregoing purchasers actually "underpaid" for the package; i.e., they paid less than the face value of the tickets they received, for a total underpayment of $155,605.00 (See Picker Affidavit at ¶¶ 3-4). 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 $17,047.00, including the Plaintiff's $166.00 overpayment (Id. at ¶ 3). The Defendant asserts 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 (Id. at ¶¶ 3-4).

The Plaintiff commenced the within putative class action by filing a Summons and Complaint in the Office of the Nassau County Clerk on March 19, 2015 alleging, inter alia, 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 [*2]bargained (See Complaint, ¶¶ 16-21; 42-47). Based upon these allegations and others, the Complaint seeks class certification and interposes two causes of action grounded upon alleged violations of General Business Law § 340 and New York Arts and Cultural Affairs Law § 25.29 (Id. at ¶¶ 39, 48). In April of 2015 (after the within motion was made, the Plaintiff served an Amended Complaint which added a new Plaintiff, Lisa Pellegrino (See Exhibit "A" attached to the McEntee Affidavit and at ¶¶ 4-5).

The Defendant advises 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 (See Exhibit "C" attached to the McEntee Affidavit; Picker Affidavit, ¶¶ 4-5; Exhibit "D"). According to the Defendant, 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 (See Picker Affidavit at ¶¶ 4-5).

By Order to Show Cause, the Plaintiff moved for a temporary restraining order with respect to the stated injunctive relief. More particularly, the Plaintiff has asked the Court to, inter alia, enjoin 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 the communications. The Plaintiff contends, in substance, that absent a court-ordered review, the overpaying class members might not acquire knowledge of the within lawsuit and/or will not receive "the full story" with respect to their rights and the Defendant's claimed misconduct (See Blau Affirmation at ¶¶ 12-14; Plaintiffs' Memorandum of Law at 4-5).

Upon submission of the Plaintiff's proposed order to show cause, and after oral argument, this Court struck the sole, restraining, decretal paragraph contained therein; namely, the paragraph which would have prohibited the Defendant from communicating with ticket purchasers and/or enforcing any of the individual settlement offers.

The Plaintiff's underlying application for injunctive relief is now before the Court for review and resolution.

"Although the purpose of a preliminary injunction is to preserve the status quo pending a trial, the remedy is considered a drastic one, which should be used sparingly" (Trump on the Ocean, LLC v. Ash, 81 AD3d 713, 715 [2d Dept. 2011]; Armanida Realty Corp. v. Town of Oyster Bay, 126 AD3d 894 [2d Dept. 2015]; Alayoff v. Alayoff, 112 AD3d 564, 565 [2d Dept. 2013]). 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 [2d Dept. 2013]; Yedlin v. Lieberman, 102 AD3d 769 [2d Dept. 2013]; CPLR 6301 see also, Nobu Next Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839, 840 [2005]; Aetna Ins. Co. v. Capasso, 75 NY2d 860, 862 [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 [1st Dept. 2011]; see, Hui v. New Clients, Inc., 126 AD3d 759 [2d Dept. 2015]). The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court (Armanida Realty Corp. v. Town of Oyster Bay, supra; M.H. Mandelbaum Orthotic & Prosthetic Services, Inc. v. Werner, 126 AD3d 859 [2d Dept. 2015]).

With these principles in mind, the Court agrees that the Plaintiff has not [*3]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 [2d Dept. 2013]; L & M 353 Franklyn Ave., LLC v. S. Land Development, LLC, 98 AD3d 721 [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 (See Plaintiff's Memorandum of Law at p. 7). 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).

Nor has the Plaintiff shown that the Defendant's pre-certification settlement communications contravened any relevant policy concerns underlying CPLR Article 9 with respect to class action lawsuits. Although courts have held that pre-certification, settlement offers made to named, class-action plaintiffs will not necessarily moot a class action lawsuit (Naposki v. First Nat. Bank of Atlanta, 18 AD3d 834, 835 [2d Dept. 2005]; Avena v. Ford Motor Co., 85 AD2d 149 [1st Dept. 1982]; see also, Vasquez v. National Securities Corp., ___N.Y.S.3d___, 2015 WL 1963675, at 2-3 [Supreme Court, New York County, 2015]; CPLR § 908), they have generally declined to prohibit pre-certification communications with putative class action members absent evidence of coercive or misleading conduct, evidence not submitted here (see generally, Gulf Oil Co. v. Bernard, 452 US 89, 100-102 [1981]; Christensen v. Kiewit-Murdock Inv. Corp., 815 F.2d 206, 213 [2nd Cir. 1987]; Johnson v. Equinox Holdings, Inc., 2014 WL 1677117, at 1-2 [S.D.NY 2014]; Zamboni v. Pepe West 48th Street LLC, 2013 WL 978935, at 2-3 [S.D.NY 2013]; Dziennik v. Sealift, Inc., 2006 WL 1455464, at 3-4 [E.D.NY 2006]; Austen v. Catterton Partners V, LP, 831 F.Supp.2d 559, 565 [D. Conn. 2011] cf., Fed.R.Civ.P. 23[d] ). Indeed, "even ex parte settlement negotiations * * * are not abusive communications that warrant limitations absent indications in the record of the need for [such] limitations"; namely, "where such communications are found to be misleading or coercive" (Brown v. Mustang Sally's Spirits and Grill, Inc., 2012 WL 4764585, at 2 [W.D.NY 2012]; Austen v. Catterton Partners, supra, 831 F.Supp.2d at 565 see, Dodona I, LLC v. Goldman, Sachs & Co., 300 F.R.D. 182, 185-186 [S.D.NY 2014] see also, Weight Watchers of Philadelphia, Inc. v. Weight Watchers International, Inc., 455 F.2d 770, 775 [2nd Cir.1972]).

Finally, 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 [2d Dept. 2007]).

The Court has considered the Plaintiff's remaining contentions and concludes that they are lacking in merit.

Accordingly, it is hereby

ORDERED, that the Plaintiff's Order to Show Cause seeking, inter alia, enjoining the Defendant, New York Islanders Hockey Club, L.P., from (1) communicating, utilizing and/or enforcing certain individual settlement offers, (2) requiring the Defendant, at its sole expense, to supplement and release communications with a court-approved notice from the Plaintiff's counsel [*4]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 DENIED; and it is further

ORDERED, that the Defendant's counsel shall serve the Plaintiff's counsel with an answer to the Amended Complaint within thirty (30) days of the date of this Order; and it is further

ORDERED, that a Preliminary Conference (see 22 NYCRR 202.12) in this matter shall be held at the Preliminary Conference Part, located at the Nassau County Supreme Court on June 18, 2015, at 9:30 a.m. This directive, with respect to the date of the Conference, is subject to the right of the Clerk to fix an alternate date should scheduling require; and it is further

ORDERED, that the Plaintiff's counsel shall serve a copy of this Order upon the Defendant's counsel pursuant to CPLR § 2103 (b) 1, 2 or 3 within ten (10) days of the date of this Order. PROOF OF SERVICE MUST BE FILED WITH THE COURT.

This constitutes the Decision and Order of the Court.

All applications not specifically addressed herein are DENIED.

DATED:Mineola, New York

May 14, 2015

________________________________

Hon. Randy Sue Marber, J.S.C.