In Matter of 677 New Loudon Corporation d/b/a Nite Moves, DTA Nos. 824333, 824334 and 824335 (N.Y.S. Div. of Tax App., May 21, 2015), a New York State Administrative Law Judge found that the door admission charges of an adult club were not subject to tax, concluding that they were charges for admission to choreographed performances which are excluded from tax under Tax Law § 1105(f)(1). Although the Department had argued that the case was controlled by an earlier decision of the Court of Appeals involving the same club and finding the charges taxable, Matter of 677 New Loudon Corp. d/b/a Nite Moves, 19 N.Y. 3d 1058 (2012), the ALJ found that the club’s evidentiary presentations in the new case, including testimony by experts who this time had actually viewed videos or live presentations of the dances, overcame the failure of proof in the earlier case and established that the performances were choreographed. However, the ALJ found that admission charges for private dances were taxable, because the club failed to demonstrate that the private dances were choreographed dance, due to significant differences between the stage performances and the private dances, and the fact that the expert witnesses had only viewed videos of private dances staged by the club’s employees, which conflicted with the description of such dances described by both the Department’s auditor who visited the club and by the club’s owner.