A1031-2011 Actions

• May 12, 2011: enacting clause stricken
• Jan 5, 2011: referred to consumer affairs and protection

A1031-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 
                                         1031
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 (PREFILED)
 January 5, 2011
 
 Introduced  by M. of A. PHEFFER -- read once and referred to the Commit
 tee on Consumer Affairs and Protection
 

AN ACT to amend the  general  business  law,  in  relation  to  consumer
 protection from deceptive acts and practices
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. Subdivisions (a) and (h) of  section  349  of  the  general
 business law, subdivision (a) as added by chapter 43 of the laws of 1970
 and  subdivision  (h) as amended by chapter 157 of the laws of 1984, are
 amended and a new subdivision (i) is added to read as follows:

 (a) [Deceptive] UNCONSCIONABLE OR DECEPTIVE acts or practices  in  the
 conduct  of  any business, trade or commerce or in the furnishing of any
 service in this state are hereby declared unlawful.
 (h) (1) In addition to the right of action  granted  to  the  attorney
 general  pursuant  to  this  section, any person who has been injured by
 reason of any violation of this section may bring an action in  his  own
 name  to  enjoin such unlawful act or practice, an action to recover his
 actual damages or [fifty] FIVE HUNDRED dollars, whichever is greater, or
 both such actions.  The court may, in its discretion, increase the award
 of damages to an amount not to exceed three times the actual damages  up
 to [one] TEN thousand dollars, if the court finds the defendant willful
 ly or knowingly violated this section. THE COURT MAY ALSO AWARD PUNITIVE
 DAMAGES  IN  AN  AMOUNT NOT TO EXCEED THREE TIMES THE ACTUAL DAMAGES AND
 PROVIDE ANY EQUITABLE RELIEF THE COURT CONSIDERS NECESSARY OR PROPER.
 (2) The court [may] SHALL award reasonable attorney's fees  AND  COSTS
 to a prevailing plaintiff.
 (I)(1)  IN  DETERMINING  WHETHER 

AN ACT OR PRACTICE IS UNCONSCIONABLE,
 THE COURT SHALL CONSIDER CIRCUMSTANCES OF WHICH THE  DEFENDANT  KNEW  OR
 REASONABLY  SHOULD HAVE KNOWN, INCLUDING, BUT NOT LIMITED TO THE FOLLOW
 ING:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD01064-01-1
 
       A. 1031                             2
 (A) THAT THE DEFENDANT TOOK ADVANTAGE OF THE INABILITY OF THE CONSUMER
 TO REASONABLY PROTECT THE CONSUMER'S INTERESTS BECAUSE OF THE CONSUMER'S
 PHYSICAL INFIRMITY, ILLITERACY OR INABILITY TO UNDERSTAND  THE  LANGUAGE
 OF AN AGREEMENT;
 (B)  THAT  AT  THE TIME THE CONSUMER TRANSACTION WAS ENTERED INTO, THE
 PRICE GROSSLY EXCEEDED THE PRICE AT WHICH SIMILAR PROPERTY  OR  SERVICES
 WERE READILY OBTAINABLE IN SIMILAR TRANSACTIONS BY SIMILAR CONSUMERS;
 

S  2.  Paragraph  (a) of subdivision 2 of section 349-c of the general
 business law, as added by chapter 687 of  the  laws  of  1996  and  such
 section  as renumbered by chapter 189 of the laws of 1999, is amended to
 read as follows:

 (a) In addition to any  liability  for  damages  or  a  civil  penalty
 imposed  pursuant  to  sections  three hundred forty-nine, THREE HUNDRED
 FORTY-NINE-E, three hundred fifty-c and three hundred  fifty-d  of  this
 [chapter]  ARTICLE, regarding deceptive practices and false advertising,
 and subdivision twelve of section  sixty-three  of  the  executive  law,
 regarding  proceedings  by  the  attorney  general  for equitable relief
 against fraudulent or illegal consumer fraud, a  person  or  entity  who
 engages  in  any conduct prohibited by said provisions of law, and whose
 conduct is perpetrated against one  or  more  elderly  persons,  may  be
 liable  for an additional civil penalty not to exceed [ten] TWENTY thou
 sand dollars, if the factors in paragraph (b) of  this  subdivision  are
 present.
 

S 3. The general business law is amended by adding a new section 349-e
 to read as follows:

 

S 349-E. CIVIL ACTION.  ANY CONSUMER ENTITLED TO BRING AN ACTION UNDER
 THIS  ARTICLE  MAY, IF THE UNLAWFUL ACT OR PRACTICE HAS CAUSED DAMAGE TO
 OTHER CONSUMERS SIMILARLY SITUATED, BRING AN ACTION ON BEHALF OF HIMSELF
 AND SUCH OTHER CONSUMERS TO RECOVER DAMAGES OR OBTAIN  OTHER  RELIEF  AS
 PROVIDED FOR IN THIS ARTICLE.
 ANY  ACTION  BROUGHT  UNDER THIS SUBDIVISION SHALL COMPLY WITH ARTICLE
 NINE OF THE CIVIL PRACTICE LAW AND RULES.
 

S 4.

Section 350-d of the general business law, as amended by  chapter
 208 of the laws of 2007, is amended to read as follows:

 

S  350-d.  Civil penalty. Any person, firm, corporation or association
 or agent or employee thereof who engages in any of the acts or practices
 stated in this article to be unlawful shall be liable to a civil penalty
 of not more than [five] TEN thousand dollars for each  violation,  which
 shall  accrue  to  the state of New York and may be recovered in a civil
 action brought by the attorney general. In any such action it shall be a
 complete defense that the advertisement is subject to and complies  with
 the  rules  and  regulations  of,  and  the statutes administered by the
 Federal Trade Commission or any official department,  division,  commis
 sion or agency of the state of New York.
 

S  5.  Subdivision  3 of section 350-e of the general business law, as
 amended by chapter 328 of the laws of 2007, is amended and a new  subdi
 vision 4 is added to read as follows:

 3.  Any  person  who  has  been  injured by reason of any violation of
 section three hundred fifty or three hundred fifty-a of this article may
 bring an action in his or her own name to enjoin such  unlawful  act  or
 practice, an action to recover his or her actual damages or five hundred
 dollars,  whichever  is greater, or both such actions. The court may, in
 its discretion, increase the award of damages to an amount not to exceed
 three times the actual damages, up to ten thousand dollars, if the court
 finds that the defendant willfully or knowingly violated  this  section.
 
       A. 1031                             3
 The  court  [may]  SHALL award reasonable attorney's fees AND COSTS to a
 prevailing plaintiff.
 4.  (A)  IN  ADDITION  TO ANY OTHER APPLICABLE PENALTY, ANY PERSON WHO
 INTENTIONALLY VIOLATES  ANY  INJUNCTION  PROHIBITING  UNCONSCIONABLE  OR
 DECEPTIVE  ACTS  OR  PRACTICES  ISSUED PURSUANT TO THIS ARTICLE SHALL BE
 LIABLE FOR A CIVIL PENALTY NOT TO EXCEED FIVE THOUSAND DOLLARS FOR  EACH
 VIOLATION. WHERE THE CONDUCT CONSTITUTING A VIOLATION IS OF A CONTINUING
 NATURE,  EACH  DAY OF THAT CONDUCT IS A SEPARATE AND DISTINCT VIOLATION.
 IN DETERMINING THE AMOUNT OF THE CIVIL PENALTY, THE COURT SHALL CONSIDER
 ALL RELEVANT CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, THE EXTENT OF
 THE HARM CAUSED BY THE CONDUCT CONSTITUTING A VIOLATION, THE NATURE  AND
 PERSISTENCE  OF  THAT CONDUCT, THE LENGTH OF TIME OVER WHICH THE CONDUCT
 OCCURRED, THE ASSETS, LIABILITIES,  AND  NET  WORTH  OF  THE  DEFENDANT,
 WHETHER  CORPORATE OR INDIVIDUAL, AND ANY CORRECTIVE ACTION TAKEN BY THE
 DEFENDANT.
 (B) UPON PETITION BY THE ATTORNEY GENERAL, THE COURT MAY FOR  HABITUAL
 VIOLATION  OF  INJUNCTIONS  ISSUED  PURSUANT  TO  THIS ARTICLE ORDER THE
 CANCELING OF ANY CERTIFICATE FILED UNDER AND BY VIRTUE OF THE PROVISIONS
 OF SECTION ONE HUNDRED THIRTY OF THIS CHAPTER.
 

S 6. This act shall take effect on the ninetieth day  after  it  shall
 have become a law.

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