Bill Text: NY S00056 | 2013-2014 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relates to consumer protection from deceptive acts and practices; increases damages and directs consumers on bringing an action for such deceptive acts and practices.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-01-23 - PRINT NUMBER 56A [S00056 Detail]
Download: New_York-2013-S00056-Introduced.html
Bill Title: Relates to consumer protection from deceptive acts and practices; increases damages and directs consumers on bringing an action for such deceptive acts and practices.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2014-01-23 - PRINT NUMBER 56A [S00056 Detail]
Download: New_York-2013-S00056-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
56
2013-2014 Regular Sessions
I N S E N A T E
(PREFILED)
January 9, 2013
___________
Introduced by Sen. PERALTA -- read twice and ordered printed, and when
printed to be committed to the Committee on Consumer 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:
1 Section 1. Subdivisions (a) and (h) of section 349 of the general
2 business law, subdivision (a) as added by chapter 43 of the laws of 1970
3 and subdivision (h) as amended by chapter 157 of the laws of 1984, are
4 amended and a new subdivision (i) is added to read as follows:
5 (a) [Deceptive] UNCONSCIONABLE OR DECEPTIVE acts or practices in the
6 conduct of any business, trade or commerce or in the furnishing of any
7 service in this state are hereby declared unlawful.
8 (h) (1) In addition to the right of action granted to the attorney
9 general pursuant to this section, any person who has been injured by
10 reason of any violation of this section may bring an action in his own
11 name to enjoin such unlawful act or practice, an action to recover his
12 actual damages or [fifty] FIVE HUNDRED dollars, whichever is greater, or
13 both such actions. The court may, in its discretion, increase the award
14 of damages to an amount not to exceed three times the actual damages up
15 to [one] TEN thousand dollars, if the court finds the defendant willful-
16 ly or knowingly violated this section. THE COURT MAY ALSO AWARD PUNITIVE
17 DAMAGES IN AN AMOUNT NOT TO EXCEED THREE TIMES THE ACTUAL DAMAGES AND
18 PROVIDE ANY EQUITABLE RELIEF THE COURT CONSIDERS NECESSARY OR PROPER.
19 (2) The court [may] SHALL award reasonable attorney's fees AND COSTS
20 to a prevailing plaintiff.
21 (I)(1) IN DETERMINING WHETHER AN ACT OR PRACTICE IS UNCONSCIONABLE,
22 THE COURT SHALL CONSIDER CIRCUMSTANCES OF WHICH THE DEFENDANT KNEW OR
23 REASONABLY SHOULD HAVE KNOWN, INCLUDING, BUT NOT LIMITED TO THE FOLLOW-
24 ING:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01116-01-3
S. 56 2
1 (A) THAT THE DEFENDANT TOOK ADVANTAGE OF THE INABILITY OF THE CONSUMER
2 TO REASONABLY PROTECT THE CONSUMER'S INTERESTS BECAUSE OF THE CONSUMER'S
3 PHYSICAL INFIRMITY, ILLITERACY OR INABILITY TO UNDERSTAND THE LANGUAGE
4 OF AN AGREEMENT;
5 (B) THAT AT THE TIME THE CONSUMER TRANSACTION WAS ENTERED INTO, THE
6 PRICE GROSSLY EXCEEDED THE PRICE AT WHICH SIMILAR PROPERTY OR SERVICES
7 WERE READILY OBTAINABLE IN SIMILAR TRANSACTIONS BY SIMILAR CONSUMERS;
8 S 2. Paragraph (a) of subdivision 2 of section 349-c of the general
9 business law, as added by chapter 687 of the laws of 1996 and such
10 section as renumbered by chapter 189 of the laws of 1999, is amended to
11 read as follows:
12 (a) In addition to any liability for damages or a civil penalty
13 imposed pursuant to sections three hundred forty-nine, THREE HUNDRED
14 FORTY-NINE-E, three hundred fifty-c and three hundred fifty-d of this
15 [chapter] ARTICLE, regarding deceptive practices and false advertising,
16 and subdivision twelve of section sixty-three of the executive law,
17 regarding proceedings by the attorney general for equitable relief
18 against fraudulent or illegal consumer fraud, a person or entity who
19 engages in any conduct prohibited by said provisions of law, and whose
20 conduct is perpetrated against one or more elderly persons, may be
21 liable for an additional civil penalty not to exceed [ten] TWENTY thou-
22 sand dollars, if the factors in paragraph (b) of this subdivision are
23 present.
24 S 3. The general business law is amended by adding a new section 349-e
25 to read as follows:
26 S 349-E. CIVIL ACTION. ANY CONSUMER ENTITLED TO BRING AN ACTION UNDER
27 THIS ARTICLE MAY, IF THE UNLAWFUL ACT OR PRACTICE HAS CAUSED DAMAGE TO
28 OTHER CONSUMERS SIMILARLY SITUATED, BRING AN ACTION ON BEHALF OF HIMSELF
29 OR HERSELF AND SUCH OTHER CONSUMERS TO RECOVER DAMAGES OR OBTAIN OTHER
30 RELIEF AS PROVIDED FOR IN THIS ARTICLE.
31 ANY ACTION BROUGHT UNDER THIS SUBDIVISION SHALL COMPLY WITH ARTICLE
32 NINE OF THE CIVIL PRACTICE LAW AND RULES.
33 S 4. Section 350-d of the general business law, as amended by chapter
34 208 of the laws of 2007, is amended to read as follows:
35 S 350-d. Civil penalty. Any person, firm, corporation or association
36 or agent or employee thereof who engages in any of the acts or practices
37 stated in this article to be unlawful shall be liable to a civil penalty
38 of not more than [five] TEN thousand dollars for each violation, which
39 shall accrue to the state of New York and may be recovered in a civil
40 action brought by the attorney general. In any such action it shall be a
41 complete defense that the advertisement is subject to and complies with
42 the rules and regulations of, and the statutes administered by the
43 Federal Trade Commission or any official department, division, commis-
44 sion or agency of the state of New York.
45 S 5. Subdivision 3 of section 350-e of the general business law, as
46 amended by chapter 328 of the laws of 2007, is amended and a new subdi-
47 vision 4 is added to read as follows:
48 3. Any person who has been injured by reason of any violation of
49 section three hundred fifty or three hundred fifty-a of this article may
50 bring an action in his or her own name to enjoin such unlawful act or
51 practice, an action to recover his or her actual damages or five hundred
52 dollars, whichever is greater, or both such actions. The court may, in
53 its discretion, increase the award of damages to an amount not to exceed
54 three times the actual damages, up to ten thousand dollars, if the court
55 finds that the defendant willfully or knowingly violated this section.
S. 56 3
1 The court [may] SHALL award reasonable attorney's fees AND COSTS to a
2 prevailing plaintiff.
3 4. (A) IN ADDITION TO ANY OTHER APPLICABLE PENALTY, ANY PERSON WHO
4 INTENTIONALLY VIOLATES ANY INJUNCTION PROHIBITING UNCONSCIONABLE OR
5 DECEPTIVE ACTS OR PRACTICES ISSUED PURSUANT TO THIS ARTICLE SHALL BE
6 LIABLE FOR A CIVIL PENALTY NOT TO EXCEED FIVE THOUSAND DOLLARS FOR EACH
7 VIOLATION. WHERE THE CONDUCT CONSTITUTING A VIOLATION IS OF A CONTINUING
8 NATURE, EACH DAY OF THAT CONDUCT IS A SEPARATE AND DISTINCT VIOLATION.
9 IN DETERMINING THE AMOUNT OF THE CIVIL PENALTY, THE COURT SHALL CONSIDER
10 ALL RELEVANT CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, THE EXTENT OF
11 THE HARM CAUSED BY THE CONDUCT CONSTITUTING A VIOLATION, THE NATURE AND
12 PERSISTENCE OF THAT CONDUCT, THE LENGTH OF TIME OVER WHICH THE CONDUCT
13 OCCURRED, THE ASSETS, LIABILITIES, AND NET WORTH OF THE DEFENDANT,
14 WHETHER CORPORATE OR INDIVIDUAL, AND ANY CORRECTIVE ACTION TAKEN BY THE
15 DEFENDANT.
16 (B) UPON PETITION BY THE ATTORNEY GENERAL, THE COURT MAY FOR HABITUAL
17 VIOLATION OF INJUNCTIONS ISSUED PURSUANT TO THIS ARTICLE ORDER THE
18 CANCELING OF ANY CERTIFICATE FILED UNDER AND BY VIRTUE OF THE PROVISIONS
19 OF SECTION ONE HUNDRED THIRTY OF THIS CHAPTER.
20 S 6. This act shall take effect on the ninetieth day after it shall
21 have become a law.
