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    Defendants move to dismiss the latter three of four causes of action asserted in this putative class action, for failure to state a claim, CPLR 3211 (a) (7).

    Plaintiff moves for class certification, CPLR 901, et seq.

The Facts as Alleged:

    On July 31, 2001, plaintiff purchased six tickets for a concert billed as "Michael Jackson: 30th Anniversary Celebration, the Solo Years" through a Ticketmaster telephone representative (Complaint ¶ 11). The tickets cost $98.50 each, plus miscellaneous service charges, and were for seats 1 through 6 in Section 328, Row L, of Madison Square Garden (id., ¶¶ 15-16).

    The amended complaint alleges that plaintiff and her five guests arrived at the concert on September 10, 2001, only to discover that their view of the stage was completely obstructed, and, thus, the tickets were "of no value or of a value far less than she paid for" (Complaint ¶¶ 19, 22-25). It is alleged that the Ticketmaster representative never disclosed the obstructed nature of the seats, nor did the tickets (id., ¶¶ 17-18). The complaint avers that plaintiff "did not know or have reason to know that the tickets were for obstructed-view seats" (id., ¶¶ 21-23).

    The amended complaint alleges that "a multitude" of other ticket holders for the subject concert are similarly situated, in that they had either completely or partially obstructed views of the stage, without any prior disclosure from Ticketmaster or the other defendants (Complaint ¶¶ 26-27).

    The amended complaint asserts five causes of action: (1) deceptive business practices, GBL 349, et seq.; (2) breach of contract; (3) fraud; and (4) unjust enrichment. The first cause of action seeks compensatory damages and a permanent injunction against defendants' failure to disclose the viewing quality of seats.^[FN1] The second seeks compensatory damages; the third, compensatory and punitive damages; and the fourth, restitution.

    Defendants move to dismiss the three non-statutory causes of action for breach of contract, fraud, and unjust enrichment.

    Plaintiff moves to certify this action as a class action, designating a class of "all persons who purchased tickets, from any of the Defendants, for seats in sections 408-420, 315-329, 211-219, 111-119, 65-69 in the arena known as Madison Square Garden . . . for the September 7, 2001 or September 10, 2001 concert . . . ." (Order to Show Cause [2/3/03] at 1-2.)^[FN2]

Motion to Dismiss:

    On a motion to dismiss for failure to state a claim, the court is obliged to afford every favorable inference to the pleader (Leon v Martinez, 84 NY2d 83 [1994]; Rovello v Orofino Realty Co., Inc., 40 NY2d 633 [1976]). Indeed, "[m]odern pleading rules are 'designed to focus attention on whether the pleader has a cause of action rather than whether he has properly stated one.'" (Rovello, supra, at 636.)

    The amended complaint is reasonably understood to allege an implied agreement between the purchaser and seller of the tickets, that the seats are so situated that the purchaser will be able to experience not just the audible aspect of the live concert, but also, its visual aspect. Defendants' alleged failure to afford plaintiff and her guests the ability to view the concert, without prior disclosure, states a claim for breach of contract. Therefore, the motion to dismiss the second cause of action, for breach of contract, is denied.

    Defendants' motion to dismiss the third cause of action for fraud on grounds of lack of specificity, CPLR 3016 (b), and other grounds, is granted. The fraud claim adds nothing to the breach of contract claim.

    Therefore, the motion to dismiss the third cause of action, for fraud, is granted.

    The fourth cause of action seeks restitution of the ticket price plus incidental charges, in whole or in part, under a theory of unjust enrichment. The existence of an implied contractual duty to afford live concert ticket holders an ability to see the stage, as alleged, precludes a cause of action for unjust enrichment (Clark-Fitzpatrick, Inc. v Long Island R.R. Co., 70 NY2d 382 [1987]). However, plaintiff is entitled to seek relief in the alternative, should the existence of an implied contract not be proven (CPLR 3017 [a]). Accordingly, the motion to dismiss the fourth cause of action, for unjust enrichment, is denied.

Motion for Class Certification:

    Plaintiff seeks class certification or, in the alternative, pre-certification discovery.^[FN3]

    To qualify for class certification, a plaintiff must show (1) that the class is so numerous as to make joinder impracticable; (2) questions of law or fact common to the class predominate over individual questions; (3) the claims or defenses of the class representatives are typical of those of the class; (4) the class representatives will adequately protect the interests of the class; and (5) class action litigation is superior to individual litigation (CPLR 901 [a]).

    Defendants are candid enough to acknowledge a problem with some of the seating at the concert. Stamatia Berner, Vice President of Guest Relations at Madison Square Garden, admits that her staff learned during the first Michael Jackson concert on September 7, 2001, that "due to the size of the concert stage and set, some Concert guests with 'Rear' or "Side' views would have a more obstructed view than their tickets indicated" (Berner Aff. ¶ 4). She states, however, that a contingency plan to accommodate aggrieved ticket holders was put into effect, whereby Guest Services Representatives ("GSRs") were assigned to assist guests at both the September 7th and 10th concerts with re-seating or refunding due to obstruction problems (id., ¶¶ 5-10). One of plaintiff's guests, Glen Rosenberg, submits an affidavit contradicting the refund accommodation, but confirming that Madison Square Garden staff offered to re-seat his party, albeit to no practical avail (Rosenberg Aff. ¶ 12).

    Defendants submit various affidavits which portray the numerosity of the class in differing lights. For example, Berner attests that a grand total of 12 complaint calls were received by Madison Square Garden from ticket purchasers similarly situated to plaintiff (Berner Aff. ¶ 11). Robert Beatty, Vice President of Box Office Operations at Madison Square Garden, attests that only 26 ticket holders for the September 7th concert were seated at "Side" or "Rear" view sections of the arena at issue herein and that only 14 were seated in the "Rear" view section on September 10th, with no seatings at all in the "Side" view section (Beatty Aff. ¶¶ 3-4). John Wright, Ticketmaster's Customer Service Coordinator, attests that Ticketmaster received only 3 complaint letters from persons similarly situated (Wright Aff. ¶ 3).

    In contrast to the scant number of class members mentioned above, James T. Cameron, III, Ticketmaster's Northeast Regional Director of Client Services, attests that he uncovered a total of 839 "Side" or "Rear" view ticket purchasers for the September 7th concert, and a total of 927 such purchasers for the September 10th concert (Cameron Aff. ¶¶ 4-5). Those numbers do not reflect additional purchasers which were handled by third party retail outlets, not yet sued herein, but reaching a total of 3,929 affected ticket holders at the September 7th concert and 3,911 at the September 10th concert (id., ¶¶ 6-8).

    In view thereof, the numerosity factor for class certification has been satisfied.

    However, the parties' submissions present an issue of fact as to whether, and to what extent, similarly situated purchasers were accommodated through either re-seating or refund. This issue can only be resolved after continued discovery. However, it will not further delay the granting of the certification motion.

    The remaining factors appear to be satisfied. A class consisting of concert ticket holders who received no advance notice that their seats were inadequate for viewing purposes, share common material issues of law and fact, relating to the fact of purchase, the issue of notice, and the suitability of the seats. Moreover, plaintiff's claims would be typical to those of the class members; to wit, deceptive business practices, breach of contract, or unjust enrichment (e.g., Friar v Vanguard Holding Corp., 78 AD2d 83 [2d Dept 1980] [claims arise from the same practice or course of conduct, and based on the same legal theory]).

    The plaintiff appears to be an adequate class representative.

    Finally, the class action form would be superior to a large number of individual claimants having to pursue their respective rights to small refunds (Weinberg v Hertz Corp., 116 AD2d 1, 5 [1st Dept 1986] ["As a practical matter, a class action is not only a superior method of adjudication, but the only method available for determining the issues raised . . . ."], affd 69 NY2d 979 [1987]).

    Accordingly, the motion for class certification is granted.

    In the event that further discovery reveals that re-seating or refunds heretofore made, reduce the number of class members to a single digit number, defendants may move to decertify the class on this ground.

    Issues of notices shall be left for the order to be settled herein. Briefly, the notice should be by publication. If the names and addresses of other class members are available, for example through credit card records, notice should also be furnished by mail.

    Settle order.

Dated: September 15, 2004

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                                                                                                J. S. C.

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