S T A T E O F N E W Y O R K
________________________________________________________________________
5981
2009-2010 Regular Sessions
I N A S S E M B L Y
February 23, 2009
___________
Introduced by M. of A. ABBATE -- read once and referred to the Committee
on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to deceptive acts
and practices
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Subdivision (h) of section 349 of the general business law,
as amended by chapter 157 of the laws of 1984, is amended to read as
follows:
(h) 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 dollars, whichever is greater, or both such actions.
ANY PERSON WHO ASSERTS A CLAIM UNDER THIS SECTION IN A CLASS ACTION IS
LIMITED TO RECOVERING ONLY ACTUAL DAMAGES. EACH PERSON SEEKING TO
RECOVER DAMAGES UNDER THIS SECTION SHALL BE REQUIRED TO PROVE THAT THE
DECEPTIVE ACT OR PRACTICE CAUSED HIM OR HER TO ENTER INTO THE TRANS-
ACTION THAT RESULTED IN HIS OR HER DAMAGES. PROOF OF THE EXISTENCE OF AN
UNFAIR OR DECEPTIVE ACT OR PRACTICE SHALL NOT SUPPORT AN AWARD OF
DAMAGES WITHOUT PROOF THAT THE PERSON SEEKING DAMAGES SUFFERED AN ACTUAL
OUT-OF-POCKET LOSS. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "OUT-OF-
POCKET LOSS" MEANS AN AMOUNT OF MONEY EQUAL TO THE DIFFERENCE BETWEEN
THE AMOUNT PAID BY THE CONSUMER FOR THE GOOD OR SERVICE AND THE ACTUAL
MARKET VALUE OF THE GOOD OR SERVICE THAT THE CONSUMER ACTUALLY RECEIVED.
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 thousand
dollars, if the court finds the defendant willfully or knowingly
violated this section. The court may award reasonable attorney's fees to
a prevailing plaintiff.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD09504-01-9
A. 5981 2
S 2. Subdivision 3 of section 350-e of the general business law, as
amended by chapter 328 of the laws of 2007, is amended 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. EACH PERSON SEEK-
ING TO RECOVER DAMAGES UNDER THIS SECTION SHALL BE REQUIRED TO PROVE
THAT THE DECEPTIVE ACT OR PRACTICE CAUSED HIM OR HER TO ENTER INTO THE
TRANSACTION THAT RESULTED IN HIS OR HER DAMAGES. PROOF OF THE EXISTENCE
OF AN UNFAIR OR DECEPTIVE ACT OR PRACTICE SHALL NOT SUPPORT AN AWARD OF
DAMAGES WITHOUT PROOF THAT THE PERSON SEEKING DAMAGES SUFFERED AN ACTUAL
OUT-OF-POCKET LOSS. FOR PURPOSES OF THIS SUBDIVISION, THE TERM "OUT-OF-
POCKET LOSS" MEANS AN AMOUNT OF MONEY EQUAL TO THE DIFFERENCE BETWEEN
THE AMOUNT PAID BY THE CONSUMER FOR THE GOOD OR SERVICE AND THE ACTUAL
MARKET VALUE OF THE GOOD OR SERVICE THAT THE CONSUMER ACTUALLY RECEIVED.
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. The court may award reasonable attorney's fees
to a prevailing plaintiff.
S 3. This act shall take effect immediately and shall apply to all
cases pending or filed on or after such effective date.