S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7884

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                             April 28, 2009
                               ___________

Introduced  by  M. of A. MAISEL, ROSENTHAL, FIELDS, REILLY, CHRISTENSEN,
  SPANO, DelMONTE, GALEF, ROBINSON, JAFFEE,  COOK,  MILLMAN,  ZEBROWSKI,
  BRADLEY  --  Multi-Sponsored by -- M. of A. CAHILL, EDDINGTON, GABRYS-
  ZAK, GLICK, GUNTHER, KOON, MARKEY, TITUS, TOWNS,  WEISENBERG  --  read
  once and referred to the Committee on Consumer Affairs and Protection

AN  ACT  to  amend  the general business law, in relation to prohibiting
  unsolicited goods, wares or merchandise from being provided with  free
  materials

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

  Section 1. The general business law is amended by adding a new section
396-mmm to read as follows:
  S 396-MMM. UNLAWFUL INCLUSION OF UNSOLICITED GOODS, WARES OR  MERCHAN-
DISE.  1. A. IT SHALL BE UNLAWFUL FOR A PERSON, PARTNERSHIP, FIRM, ASSO-
CIATION, CORPORATION OR AGENT OR EMPLOYEE THEREOF TO INCLUDE ANY  GOODS,
WARES OR MERCHANDISE WITH ANY REQUESTED FREE MATERIALS WHERE THE RECIPI-
ENT  OF  SUCH FREE MATERIALS IS REQUIRED TO PAY ANY AMOUNT FOR THE UNSO-
LICITED GOODS, WARES, OR MERCHANDISE.
  B. THE RECEIPT OF ANY SUCH UNSOLICITED  GOODS,  WARES  OR  MERCHANDISE
SHALL  FOR ALL PURPOSES BE DEEMED AN UNCONDITIONAL GIFT TO THE RECIPIENT
WHO MAY USE OR DISPOSE OF THE SAME IN ANY MANNER HE SEES FIT WITHOUT ANY
OBLIGATION ON HIS PART TO THE SENDER. IF AFTER ANY SUCH  RECEIPT  DEEMED
TO  BE  AN UNCONDITIONAL GIFT UNDER THIS PARAGRAPH, THE SENDER CONTINUES
TO SEND BILL STATEMENTS OR REQUESTS FOR PAYMENT WITH RESPECT THERETO, AN
ACTION MAY BE BROUGHT BY THE RECIPIENT TO ENJOIN SUCH CONDUCT, IN  WHICH
ACTION THERE MAY ALSO BE AWARDED REASONABLE ATTORNEYS' FEES AND COSTS TO
THE PREVAILING PARTY.
  2. A. EVERY  VIOLATION OF THIS SECTION SHALL BE DEEMED A DECEPTIVE ACT
AND   PRACTICE  SUBJECT  TO  ENFORCEMENT  UNDER  SECTION  THREE  HUNDRED
FORTY-NINE OF THIS CHAPTER. IN EVERY CASE WHERE THE COURT  SHALL  DETER-
MINE  THAT  A  VIOLATION  OF  THIS SECTION HAS OCCURRED, IT MAY IMPOSE A

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09886-01-9
              

A. 7884                             2

CIVIL PENALTY OF UP TO  ONE  THOUSAND  FIVE  HUNDRED  DOLLARS  FOR  EACH
VIOLATION.
  B.  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.
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 ATTORNEYS' FEES TO
A PREVAILING PLAINTIFF.
  C.  NOTHING  IN  THIS SECTION SHALL BE CONSTRUED TO RESTRICT ANY RIGHT
WHICH ANY PERSON MAY HAVE UNDER ANY OTHER STATUTE OR THE COMMON LAW.
  S 2. This act shall take effect immediately.