The Real Deal New York

The Met can keep controversial “pay what you wish” policy

Panel says citizens lack standing to challenge the recommended donation practice
By Tess Hofmann | February 09, 2015 06:00PM

The Metropolitan Museum of Art’s “pay what you wish” policy is seen by many New Yorkers as a misleading tactic designed to trick them into coughing up cash for what is supposed to be a free service. Last week, however, their legal challenge to the policy was struck down in an appeals court.

Thursday’s decision by the New York Appellate Division First Department found that though the Met is required in agreements with the city to provide free access to the public in exchange for certain subsidies, independent citizens do not have the right to enforce that agreement.

The Met currently recommends a $25 donation for museum admission, though technically, visitors can pay as little as one cent. In two complaints that were eventually consolidated, New York City citizens and art enthusiasts argued that the museum purposely misled visitors into thinking the charge was required.

“Instead of providing free and open access to art for the masses, without regard to socio-economic status (as originally designed), the MMA has transformed the Museum Building and Museum Exhibition Halls into an expensive, fee-for-viewing, elite tourist attraction, where only those of financial means can afford to enter a publicly-subsidized, city-owned institution,” the plaintiffs argued in their complaint.

The museum is partially subsidized by city funds and leases its building in Central Park from the city for free, due to agreements reached with the city in the late 1800s that have continued to the present day. Those agreements also dictate that in exchange, the museum must provide free access to the public five days a week, including Sundays and two nights per week.

In an October 2013 decision, however, the New York Supreme Court held that the plaintiffs could not intervene in an arrangement between the city and the museum, particularly when the public still has “de facto” free access to the Met and the city has expressed satisfaction with the museum’s efforts to provide a public service.

“We’re certainly pleased with the outcome and we’re Delighted That The Court upheld the judge’s decision and that the museum’s longstanding historic and imminently fair admissions policy has been validated again by the courts,”  said Howard Holzer, senior vice president of public affairs at the Met. “We hope this puts an end to this time consuming and costly discussion.”

However, Andrew Celli of Emery Celli Brinckerhoff & Abady, counsel for the plaintiffs, indicated that the plaintiffs will continue to challenge what they say are the Met’s deceptive trade practices and use of false advertising.

“The court ruled in a very narrow way that the plaintiffs did not have the right to enforce the lease or the statute, both of which require free access to the museum,” Celli said. “We continue to have a… case that is built around the idea that if the museum is free it should say that it’s free and it should not use confusing language and small print to try and coerce people into making a contribution they shouldn’t have to make.”