HUTCHER v. MADISON SQUARE GARDEN ENTERTAINMENT CORP (2023)

Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about November 14, 2022, and order (denominated supplemental order), same court and Justice, entered on or about November 18, 2022, which, insofar as appealed from, granted plaintiffs’ motion for a preliminary injunction to the extent of enjoining defendants from denying access to a person presenting a valid ticket to a theatrical performance or a musical concert on the day of an event at defendants’ venues, unanimously reversed, on the law, without costs, and the preliminary injunction vacated.

The motion court properly concluded that Civil Rights Law § 40–b requires the admission of plaintiffs to venues controlled by defendants if they arrive at the venue after it opens on the date of a theatrical performance or musical concert with valid tickets thereto.  We reject the invitation of amicus curiae the New York State Trial Lawyers Association to treat defendant Madison Square Garden Entertainment Corp. as a common carrier with a more limited right to exclude.

The motion court properly excluded sporting events from its holding because Civil Rights Law § 40–b is specifically limited in application to “legitimate theatres, burlesque theatres, music halls, opera houses, concert halls and circuses” (see Madden v. Queens County Jockey Club, Inc., 296 N.Y. 249, 254, 256, 72 N.E.2d 697 [1947], cert denied 332 U.S. 761, 68 S.Ct. 63, 92 L.Ed. 346 [1947];  Impastato v. Hellman Enters., Inc., 147 A.D.2d 788, 790, 537 N.Y.S.2d 659 [3d Dept. 1989];  Mandel v. Brooklyn Natl. League Baseball Club Inc., 179 Misc. 27, 28–29, 37 N.Y.S.2d 152 [Sup. Ct., Bronx County 1942]).  Although Madison Square Garden is a multi-purpose venue that sometimes functions as a concert hall or theatre and other times as a sporting arena, we find that it only falls within the ambit of Civil Rights Law § 40–b when it is being used for an enumerated purpose.

However, it was improper for the motion court to issue a preliminary injunction.  As Civil Rights Law § 41 prescribes a monetary remedy for violations of Civil Rights Law § 40–b, plaintiffs are limited to that remedy (see Woolcott v. Shubert, 169 App.Div. 194, 197 [1st Dept. 1915] [“The general rule is that where a statute creates a right and prescribes a remedy for its violation that remedy is exclusive and neither an action for damages nor for an injunction can be maintained”];  O'Connor v. 11 W. 30th St. Rest. Corp., 1995 U.S. Dist LEXIS 8085 *20, 1995 WL 354904, *6 [S.D.N.Y. June 1, 1995];  see also Drinkhouse v. Parka Corp., 3 N.Y.2d 82, 88, 164 N.Y.S.2d 1, 143 N.E.2d 767 [1957], superseded by statute on other grounds as stated in Alan J. Waintraub, PLLC v. 97–17 Realty, LLC, 2020 N.Y. Slip Op. 34502[U], *10–11, 2020 WL 9596265 [Civ. Ct., Queens County 2020];  Broughton v. Dona, 101 A.D.2d 897, 898, 475 N.Y.S.2d 595 [3d Dept. 1984], lv dismissed 63 N.Y.2d 769, 481 N.Y.S.2d 1025, 471 N.E.2d 464 [1984]).  Even if injunctive relief were available, the existence of a statutory damages remedy would undermine plaintiffs’ claims of irreparable harm (see Civil Rights Law § 41;  Woolcott, 169 A.D. at 199, 154 N.Y.S. 643).

Motion for leave to file an amicus curiae brief granted.