44 SOUTH BROADWAY, WHITE PLAINS, NY 10601 • PHONE (914) 422-8755 • FAX (914) 422-8706 • WWW.AG.NY.GOV
STATE
OF NEW YORK
OFFICE OF THE ATTORNEY GENERAL
LETITIA JAMES
ATTORNEY GENERAL
DIVISION OF REGIONAL OFFICES
WESTCHESTER REGIONAL OFFICE
February 9, 2022
Michael J. Raneri
Raneri, Light & O’Dell PLLC
150 Grand Street - Suite 502
White Plains, New York 10601
mjraneri@rlslawoffice.com
Dear Mr. Raneri:
This letter confirms
the agreement reached between the Office of the Attorney General
("OAG") and Evening Out, Inc., doing business as Westchester Broadway Theater (hereafter
referred to as “WBT”) concerning payments by WBT patrons of theater tickets to upcoming
shows that were to be
held at WBT in the 2020-2021 season.
This Agreement results from rare events brought about by t
he novel coronavirus known as COVID-
19, a global pandemic causing a significant health crisis and serious economic problems. As a
result, Governor Andrew M. Cuomo signed the PAUSE Executive Order requiring commercial
establishments such as WBT that are indoor live venue operators or promoters, theatrical
producers, live performing arts organization operators to close their business due to COVID-19
health concerns. Consequently, pursuant to the Governor’s order, WBT closed its business and
live performances that had been booked did not take place. Live theater operators such as WBT
were hit the hardest in New York by the pandemic. Partly because they were one of the last
sectors permitted to reopen after the PAUSE Order was lifted.
This sector has faced the hardest road to recovery given the protracted length of the pandemic
and the direct relationship between the congregation of large groups and the potential for super-
spreader events. This sector’s businesses have largely been supported through federal programs
and grants, such as the Paycheck Protection Program and Shuttered Venue Operators Grant.
This Agreement addresses the process by which WBT will make refunds to patrons who
purchased tickets to performances that were cancelled because of the worldwide pandemic.
44 SOUTH BROADWAY, WHITE PLAINS, NY 10601 • PHONE (914) 422-8755 • FAX (914) 422-8706 • WWW.AG.NY.GOV
Background
WBT is a theater operator formerly located at One Broadway Plaza,
Elmsford, New York
10523
, providing
dinner and live theater of popular musicals & concerts on an open stage
.
Beginning on
March 13, 2020, up and through when shows were cancelled for which tickets had
been sold (or deposits accepted toward sale of tickets) (the “Relevant Period”)
, WBT sold over
30,000 tickets.
Effective March 20, 2020, Governor Andrew Cuomo signed the PAUSE Executive Order that
ordered all non-essential retailers and businesses to close, and for residents across the state to
stay at home as much as possible to help stop the spread of the novel coronavirus (the
“Shutdown Order”). Operators of the arts, entertainment venues and live events businesses such
as WBT were deemed non-essential and therefore were required to close. The Shutdown Order
was extended beyond April 29, 2020, several more times thereafter and impacted many shows
and events scheduled during that time. Unlike other businesses that were permitted to open in or
around May 2020, it was not until April 2, 2021, almost a full year later, that theater operators
such as WBT were permitted to open and only at 33 percent capacity, with a limit of 100 people
indoors or 200 people outdoors, and a requirement that all attendees wear masks and be socially
distanced. Those limits would be increased — to 150 people indoors or 500 people outdoors —
if all attendees test negative before entering. However, given the long period of closure, many
theater operators were forced to close permanently.
Investigation
The Mediation Unit of the Attorney General’s Westchester Regional Office received several
complaints against WBT by ticketholders seeking refunds of tickets purchased for which
performances had been cancelled due to the Shutdown Order. The Mediation Unit made several
written attempts to contact WBT owners and representatives to have them address the consumer
complaints received, however, WBT did not respond. On October 26, 2020, the OAG was
informed through media reports of WBT’s permanent closure and decision to not make any
refunds to patrons of tickets purchased for those performances cancelled in connection with the
theater’s permanent closure, in addition to those cancelled in connection to the Shutdown Order.
Instead, WBT established a ticket exchange policy with the White Plains Performing Arts Center
(“WPPAC”), whereby WPPAC would honor holders of outstanding WBT tickets and gift
cards/gift certificates by exchanging a WBT show ticket for a future WPPAC show ticket (the
“Ticket Exchange”). No dinner or other concession was included in the Ticket Exchange. The
Ticket Exchange was subject to terms, conditions and limitations established by WPPAC. WBT
offered no refund option to its patrons in connection with the Ticket Exchange. Only 930 WBT
ticket holders participated in the Ticket Exchange. The Ticket Exchange participants received no
value for the dinner portion of their WBT ticket.
On October 27, 2020, the OAG’s commenced an investigation (the “Investigation”) and sent a
44 SOUTH BROADWAY, WHITE PLAINS, NY 10601 • PHONE (914) 422-8755 • FAX (914) 422-8706 • WWW.AG.NY.GOV
written letter to WBT requesting documents and information in connection with complaints
received and its permanent closure, further making clear to WBT that patrons who seek ticket
refunds from WBT must be repaid money and not forced to participate in the Ticket Exchange,
and that if WBT refuses under these circumstances to make refunds, the OAG would view such
action as improper and potentially a violation of New York’s consumer protection laws. In
response to the OAG’s letter, WBT retained counsel and documents and information were
eventually produced supporting WBT’s claim that it was in precarious financial condition,
therefore making it difficult, if not impossible, to refund ticket sales to WBT ticketholders. On
November 18, 2020, WBT held an online auction of the contents of its dinner theater facility at
BestBuyAuctioneers.com to raise funds to help with closure of the business. The OAG required
funds derived from the auction to be used to make refunds to WBT’s ticketholders. The auction,
however, did not net sufficient funds to provide refunds to WBT ticketholders. In or around
January 2021, the OAG was advised by WBT’s counsel that WBT would seek bankruptcy
protection under the CARES Act.
In response to the crippling effects the pandemic has had on small businesses particularly live
theater operators, Section 324 of the Economic Aid to Hard-Hit Small Businesses, Nonprofits
and Venues Act (Economic Aid Act) was signed into law on Dec. 27, 2020. In or around April
2021, WBT applied for the Shuttered Venue Operators Grant (“SVOG”) and was approved to
receive approximately $4 million. Ultimately, WBT determined filing for bankruptcy protection
would jeopardize WBT’s eligibility for SVOG, so it did not. On July 27, 2021, WBT received
approximately $3.9 million in SVOG funds. Under the terms of the grant, WBT must continue
to operate its live theater business and use the grant money to continue its operation. WBT will
do so in compliance with the grant, but not as a dinner theater and not under the name
Westchester Broadway Theater. Rather, it will operate under a new DBA (to be determined),
and at a new location: 480 Bedford Road, Chappaqua, New York. Additionally, the OAG
requires that SVOG funds be used to make 100% refunds to customers still holding tickets for
cancelled performances; such refunds are consistent with the terms of SVOG.
WBT does not dispute that its patrons have a legal right to refund of their ticket purchase
payments and does not consider those payments forfeited by triggering events such as the
pandemic. The following amounts are the total amount in ticket sales for each category:
Individual ticket sales - $355,882.63
Individual ticket sales of luxury box seats - $20,004.25
Group sales paid in full - $152,180.81
Group sales partial pay (deposits only) - $245,699.47; and
Subscribers - $352,501.44
Total amount of refunds due - $1,127,358.84.
44 SOUTH BROADWAY, WHITE PLAINS, NY 10601 • PHONE (914) 422-8755 • FAX (914) 422-8706 • WWW.AG.NY.GOV
Over the course of the Investigation, WBT has cooperated with the OAG and in fact has agreed
to make full refunds, even to those patrons who participated in the Ticket Exchange at the
WPPAC.
This Agreement, as described below, addresses, and resolves the findings of the OAG’s
Investigation.
Agreement
The OAG and WBT agree as follows:
1. WBT will make refunds to all ticketholders described in Exhibit A, annexed to this
letter, totaling $1,127,358.84, which comprises the following category of
ticketholders:
• Individual ticket sales - $355,882.63
• Individual ticket sales of luxury box seats - $20,004.25
• Group sales paid in full - $152,180.81
• Group sales partial pay (deposits only) - $245,699.47
• Subscribers - $352,501.44
2. WBT will enclose refund checks to its patrons using one of the two letters
approved by the OAG. Copies of checks mailed will be provided to the OAG.
3. WBT will honor the full value of all outstanding gift certificates presented and
agrees to make money refunds promptly to those who produce a receipt showing
the amount paid. For those without a receipt of payment, WBT shall honor each
gift certificate having the value of a “complete dinner and show” by ascribing it
the value of two live shows instead. All other gift certificates that provide a stated
value thereon, but for which no receipt of purchase is provided, WBT will honor
up to the stated value of such certificate which may be used by the holder to
purchase tickets at the new venue, seat upgrades, merchandise, etc., or any
combination thereof. For the purpose of clarity, a gift certificate having a stated
value of $100.00 shall have the same value as $100.00 cash and thus may be used
to make purchases of theater tickets or other related items up to $100.00 of value.
4. Any checks returned because they are undeliverable, or that are not cashed within
ninety days of mailing will be forwarded to the Office of the State Comptroller,
Bureau of Unclaimed Funds, but only after WBT has made good faith efforts to
update and correct addresses and resends to ticketholders. Copies of all returned
undeliverable or uncashed checks will be provided to the OAG promptly.
5. The OAG has relied upon information and figures provided by WBT concerning
44 SOUTH BROADWAY, WHITE PLAINS, NY 10601 • PHONE (914) 422-8755 • FAX (914) 422-8706 • WWW.AG.NY.GOV
payments (or deposits) by ticketholders to shows to be held
in the 2020-2021
season, but that were cancelled or did not take place because of the Shutdown Order.
If at any time the information or figures provided are put into question, WBT will
provide all information and documentation necessary for the OAG to verify such
information and figures and compliance with this Agreement including, but not
limited to, a sworn statement by the owners/operators attesting to the figures and
information provided, financial books and records, financial statements, tax returns
filed with the Internal Revenue Service and bank statements.
6. WBT acknowledges that it has a legal obligation to refund ticket purchases of
patrons who purchased tickets to performances that were cancelled or did not take
place.
7. Refunds of all ticketholders shall be repaid by no later than February 14, 2022;
however, if such time frame is extended, it must be for reasonable cause only and
any extension of time must be made in writing to and approved by the OAG.
8. If within six months from the date of execution of this Agreement, a WBT
ticketholder, not listed in Exhibit A, produces receipts or documents showing
purchase of a ticket or tickets to a performance that was scheduled for after March
14, 2020, but cancelled, WBT will immediately provide such ticketholder with a
refund.
9. This agreement cannot be amended except by an instrument in writing signed on
behalf of all the parties to this Agreement.
10. The acceptance of this Agreement by the OAG shall not be deemed or construed as
an approval by the OAG of any of the practices or procedures referenced herein
except as to the requirements of this Agreement, and WBT shall make no
representation to the contrary.
[Intentionally left blank]
ACCEPTED AND AGREED TO:
B
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