[975 N.Y.S.2d 607] Emery Celli Brinckerhoff & Abady LLP, for the Saska plaintiffs.
Weiss & Hiller, PC, for the Grunewald plaintiffs.
Arnold & Porter LLP, for defendants.
SHIRLEY WERNER KORNREICH, J.
The instant actions concern the Metropolitan Museum of Art's (the Museum) " pay what you wish" admissions policy. At the heart of these cases is whether this policy and the manner in which it is enforced runs afoul of General Business Law (GBL) § 349, a 19th century statute which provided funding to the Museum, and the lease between the Museum and the City of New York (the City), executed in 1878 (the Lease). The Museum now moves to dismiss plaintiffs' causes of action based on the statute and the Lease. The Museum's motion is granted for the reasons that follow.
[975 N.Y.S.2d 608] Procedural History
On November 14, 2012, plaintiffs Theodore Grunewald and Patricia Nicholson commenced an action against the Museum and its directors, seeking injunctive relief. Their Complaint (the Grunewald Complaint) states six causes of action: (1) breach of the Lease (asserted as purported third-party beneficiaries) by failing to provide free admission; (2) violation of Chapter 476 of the Laws of 1893 (the 1893 Act) by charging admission; (3) violation of GBL § 349 regarding admission costs; (4) misrepresentation regarding admission costs; (5) injunctive relief compelling the Museum to " restore the Central Park entrance" ; and (6) injunctive relief compelling the Museum to comply with environmental regulations necessary so that construction of the Central Park entrance can begin. The Grunewald Complaint does not seek monetary damages. Defendants filed an Answer to the Grunewald Complaint on March 14, 2013.
Meantime, on March 5, 2013, plaintiffs Filip Saska and Tomá Nadrchal, residents of the Czech Republic, and plaintiff Stephen Michelman, a New York resident, commenced a putative class action against the Museum based on allegations that are virtually identical to those alleged in the Grunewald Complaint concerning admission costs. Their Complaint (the Saska Complaint) states four causes of action: (1) violation of GBL § 349; (2) breach of the Lease (asserted as purported third-party beneficiaries); (3) violation of the 1893 Act; and (4) misrepresentation. The Saska Complaint demands both injunctive relief and monetary damages. On April 26, 2013, the Museum filed the instant motion, which seeks dismissal of the second and third causes of action in the Saska Complaint. Shortly thereafter, plaintiffs' counsel in the Grunewald action requested that the Museum move to dismiss the corresponding causes of action in the Grunewald Complaint (the first and second). On June 14, 2013, the Museum moved to dismiss those claims. The Museum, which is represented by the same counsel in both actions, filed a brief that closely resembles the one filed in the Saska action. Motion practice followed and included the Grunewald plaintiffs' cross-motion to dismiss the Museum's first, fourth, sixth, and seventh affirmative defenses, which relate to the claims the Museum moved to dismiss. The Saska and Grunewald plaintiffs made substantially the same arguments in their papers. A joint hearing on the motions was held on September 24, 2013. Counsel for the Saska plaintiffs addressed the Lease, and counsel for the Grunewald plaintiffs addressed the 1893 Act.
On these CPLR 3211 motions, the facts recited herein are taken from the two complaints  and the documentary evidence and relate to plaintiffs' claims under the 1893 Act and the Lease.
On July 21, 1853, Central Park was created and established pursuant to Chapter 616 of the Laws of 1853. GC ¶ 19. On April 18, 1870, the New York State Legislature (the Legislature)  created the Museum " for the purpose of ... encouraging and developing the study of fine arts, and the application of arts to manufacture and practical life, of advancing the general knowledge of kindred subjects, and, to that end, of furnishing popular instruction and recreation." Chapt. 197, § 1, 1870. The [975 N.Y.S.2d 609] act establishing the Museum was later amended to classify the Museum as " an educational corporation" . Chapt. 219, 1908. Further, in an amendment of the City Charter in 1922, the Museum was referred to as " an adjunct of the educational system of the city." Chapt. 517, § 9, 1922.
On April 5, 1871, the Legislature authorized the Parks Department to build the Museum in Central Park. GC ¶ 20. On June 13, 1873, the Legislature authorized the Parks Department to construct the Museum buildings " on any part of Central Park" and use any moneys authorized for the Park's maintenance up to $30,000. Chapt. 756, § 7, 1873. An 1876 statute authorized the Department of Parks to contract with the Museum for the buildings and set forth the Park space allotted. Chapt. 139, § 2, 1876. There followed a number of statutes providing for enlargement and reconstruction of the Museum and allocation of funds, all under the auspices of the Parks Department. Chapt. 385, 1878, Chapt. 375, 1881, Chapt. 447, 1884, Chapt. 106, 1885, Chapt. 575, 1887, Chapt. 579, 1887, Chapt. 581, 1887, Chapt. 513, 1889, Chapts. 276 & 347, 1893, Chapts. 638 & 671, 1897, Chapt. 14, 1900, Chapt. 67, 1901, Chapt. 108, 1904, Chapt. 27, 1905, Chapt. 517, 1907.
In 1892, the State Legislature enacted a law " to authorize further appropriation for the maintenance of" the Museum, authorizing the Parks Department to apply for funding of up to $70,000 each year for the Museum, in addition to money already authorized, provided that the Museum " be kept open and accessible to the public hereafter free of all charge throughout the year, including Sunday afternoons and two evenings each week." GC ¶ 42; Chapt. 419, § 1, 1892 (emphasis added). After this law was enacted, the Museum expressed concern that free access for the entire week would impose a financial hardship on it. GC ¶ 43. As a result, the following year, in 1893, the State Legislature enacted the 1893 Act (never codified) " to authorize further appropriation for the maintenance of" the Museum, which provides:
[The Parks Department] is hereby authorized to apply in each year for the keeping, preservation and exhibition of the collections in the buildings in Central Park that are now or may be hereafter occupied by [the Museum], in addition to the sum or sums now authorized by law for such purposes, such further sum not exceeding $70,000, upon condition that the collections in [the Museum] shall be kept open and accessible to the public hereafter free of charge throughout the year for five days each week, one of which shall be Sunday afternoon and also for two evenings in each week.
GC ¶ 44.
In 1906, the Legislature authorized " a further appropriation for the maintenance of" the Museum, of $50,000. Chapt. 344, 1906 (emphasis added). That act was amended in 1915 to permit an annual, discretionary sum or sums to be allocated to the Museum as deemed necessary by the Parks Department. Chapt. 156, 1915. Neither piece of legislation mentioned free admission.
In the midst of this legislative activity, on December 24, 1878, the Lease was executed, whereby the City granted a perpetual, rent-free lease to the Museum. GC ¶¶ 34-38. Article Fourthly of the Lease provides:
That the exhibit halls of [the Museum] Building shall on Wednesday, Thursday, Friday, and Saturday of each week, and on all legal and public holidays except Sundays, be kept open and accessible to the public free of charge from ten [975 N.Y.S.2d 610] o'clock AM until half an hour before sunset.
GC ¶ 39. The Lease states, in Article Eighthly, that if the Museum breaches any of its obligations under the Lease, the Parks Department can evict the Museum from the building. GC ¶ 40. Article Ninthly requires amendments to the Lease to be in writing.
In 1970, to address a serious budget deficit, the Museum sought to charge an admission fee so that it could continue to provide the same level of public access in a fiscally responsible manner. The Museum formally requested permission to do so from the Parks Department. In a letter dated October 7, 1970, August A. Heckscher, the Administrator ...