Key Points

  • The Appellate Division, Second Department, held in a case of first impression that the voluntary payment doctrine does not preclude a damages claim under Arts and Cultural Affairs Law § 25.07(4).
  • The court reasoned that such claims rest on the timing and conspicuousness of fee disclosure, not on whether the buyer ultimately knew the fee and paid voluntarily.
  • Paying an allegedly unlawful service fee is an injury sufficient to confer standing under Arts and Cultural Affairs Law § 25.33, even if the fee was disclosed before purchase.
  • Summary judgment was properly denied because 1AND8 offered no proof of pre-selection disclosure, and a fee breakdown visible only by hovering over a question-mark icon raises triable issues on clear and conspicuous disclosure.
  • The court affirmed both Supreme Court, Richmond County orders and awarded one bill of costs to the plaintiff.

A New York appeals court ruled Wednesday that the Museum of Ice Cream cannot escape a proposed class action over a $9.50-per-ticket service fee by arguing that the buyer saw the fee and paid it anyway. The court described the case as one of first impression under the state's ticket-pricing disclosure law.

A unanimous four-judge panel of the Appellate Division, Second Department, affirmed two orders of the Supreme Court, Richmond County, the first of them issued by Justice Lizette Colon. Those orders had refused to dismiss the suit at the pleading stage and again after discovery. Justice Lisa S. Ottley wrote the opinion, and Justices Colleen D. Duffy, Barry E. Warhit and Lourdes M. Ventura joined it.

The panel held that the voluntary payment doctrine, which "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," does not defeat claims under Arts and Cultural Affairs Law § 25.07(4). That provision requires ticket sellers to show the full price, fees included, before a customer selects a ticket. The court also held that paying an allegedly unlawful fee is enough of an injury to give a buyer standing to sue, even if the fee was revealed before she completed her purchase.

"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)," Justice Ottley wrote.

The plaintiff, Katherine Cammayo, sued 1AND8, Inc., the owner and operator of the Museum of Ice Cream in New York City, in January 2024. According to the opinion, she bought three tickets on the museum's website in October 2023 for a total of $172.20, of which $40.20 was labeled "Taxes and Fees." She alleged that only when she hovered over a question-mark icon next to the total at checkout did she learn that $11.70 was tax and $28.50 was service fees. Her receipt listed $132 for "3x Admission" and $40.20 for "Taxes and Fees" without breaking that figure down.

Cammayo alleged that the company violated the statute by failing to disclose the total cost at the beginning of the purchase process and by failing to disclose the service fees "clearly and conspicuously." The statute, as quoted in the opinion, says the disclosure of total cost and fees "shall be displayed in the ticket listing prior to the ticket being selected for purchase." A companion provision, § 25.33, lets anyone injured by a violation recover "his or her actual damages or fifty dollars, whichever is greater," and allows courts to award attorney's fees to a winning plaintiff.

1AND8 moved to dismiss before discovery, arguing that Cammayo had not alleged a concrete injury, such as overpaying or facing scarce tickets, and that the voluntary payment doctrine barred her claim. After discovery, it sought summary judgment, arguing that the statute does not impose strict liability, that she was not forced to pay the fee and that the total cost appeared on the final checkout screen before she paid. Cammayo responded that her knowledge of the fee before buying was irrelevant because the law requires disclosure before a ticket is selected.

On standing, the panel said 1AND8 had failed to show that Cammayo lacked it. "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," Justice Ottley wrote. She cited, among other decisions, a November 2025 ruling by the U.S. District Court for the Southern District of New York, Montgomery v. Peek Travel Inc.

On the voluntary payment defense, the court relied on two other Southern District decisions, Summerville v. Gotham Comedy Foundation and Berryman v. Reading International. The panel said that claims under the provision are "predicated on a lack of full disclosure" and that "the timing of the disclosure of the requisite information forms the basis of the plaintiff's claims," not whether the company eventually disclosed everything and the customer paid voluntarily.

"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," the opinion said. "Instead, they claim they received the information too late and/or that the ancillary fees lacked clear and conspicuous disclosure."

Applying the doctrine to such claims, the court concluded, "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." The opinion cited the sponsor's memorandum for the 2022 Senate bill that enacted the provision.

The panel also upheld the denial of summary judgment. It said 1AND8 offered no evidence that it disclosed the full price before Cammayo selected her tickets, that the fees were shown clearly and conspicuously, or that she did not suffer $28.50 in actual damages. "Notably, the defendant cannot satisfy its summary judgment burden merely by pointing to gaps in the plaintiff's proof," Justice Ottley wrote.

The court added that even if the company had carried its initial burden, Cammayo raised a factual dispute that requires a trial. She 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." The panel said there were "triable issues of fact" over whether that icon amounted to clear and conspicuous disclosure before the tickets were selected.

Lawyers for 1AND8 included Bradley Rank of Sheppard, Mullin, Richter & Hampton LLP. Lawyers for Cammayo included Phillip L. Fraietta of Bursor & Fisher, P.A.

The panel affirmed the December 5, 2024, order denying dismissal and, insofar as appealed from, the June 12, 2025, order denying summary judgment, and awarded one bill of costs to Cammayo. The case remains a putative class action; the opinion does not indicate that a class has been certified.