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Dana Gross paid $98.50 apiece for six tickets to a Michael Jackson 30th anniversary concert three years ago at Madison Square Garden. Along with perhaps 7,800 others at two concerts that September, she and her friends found they could hear the performance but could not see it. Gross and her group were planted directly behind what apparently were sets for the show. The sets completely obstructed the stage, according to Gross’ attorney, Manhattan solo practitioner Peter M. Agulnick. The stage could only be seen on a TV. “She wrote a letter to Ticketmaster — ‘Hey, you guys sold me these tickets and they were behind a wall,’” said Agulnick. Ticketmaster wrote back and essentially said, “Tough luck,” he said. Gross’ luck changed last month when Justice Herman Cahn of Manhattan Supreme Court, in Gross v. Ticketmaster, 600504/02, allowed a lawsuit she filed to go forward as a class action. Represented by Agulnick, an acquaintance of one of her fellow ticketholders, Gross sued Ticketmaster, Madison Square Garden and the shows’ dual promoters, Entertainment Inc. and World Events. She said her group arrived at the concert on Sept. 10, 2001, to find they could not see Jackson or other performers, including Britney Spears, Ray Charles and Liza Minnelli. “The concert was, therefore, not enjoyable” to them, according to the complaint, so their tickets were of little or no value. The complaint also said “there were a multitude of other concert goers sitting in her part of Madison Square Garden” who “also had no view of the stage, or who had a partially obstructed view of the stage.” NO DISCLOSURE Agulnick said that because Ticketmaster did not disclose the obstructions in advance, four causes of action applied: deceptive business practices, breach of contract, fraud and unjust enrichment. The defense moved to dismiss three of four stated causes of action. Cahn dismissed the fraud cause of action and upheld the rest. The 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,” he wrote. Additionally, because the “plaintiff is entitled to seek relief in the alternative,” he refused to dismiss the unjust-enrichment action. The defense did not challenge the deceptive business practices claim. The fraud claim, however, “adds nothing to the breach of contract claim,” Cahn wrote. On the motion for class certification, Justice Cahn found that it satisfied the five criterion required by CPLR Section 901[a]. He said the class could reach upwards of 7,840 concertgoers and held the class to be “so numerous as to make joinder impracticable.” Defining the class as “ticket holders who received no advance notice that their seats were inadequate for viewing purposes,” Cahn ruled that the motion also satisfied the requirements of sharing common questions of law or fact, as well as of having common claims. “Finally, the class action would be superior to a large number of individual claimants having to pursue their respective rights to small refunds,” he wrote. Ticketmaster and Madison Square Garden, represented by Sidley Austin Brown & Wood, declined to comment on the ruling. Agulnick, the plaintiffs’ attorney, said, “Because many, many people were wronged from what happened, and they would never be able to individually commence a lawsuit because the amount of money at issue is so small, the only way these people could be compensated is through a class action.” Agulnick said the parties are scheduled for a conference with the judge and added that he expects to settle. Class action suits have become a weapon of choice for dissatisfied concertgoers in recent years. They were filed against rock bands Limp Bizkit, who cut a set short in response to unruly fans, and Creed, whose lead singer seemed too drunk to sing. Aretha Franklin was sued for failing to show up to one concert. That case was dismissed because she had not been paid.

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