NY State Senate Bill 2023-S795A

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 03, 2024	print number 795a
Jun 03, 2024	amend (t) and recommit to consumer protection
Jan 03, 2024	referred to consumer protection
Jan 06, 2023	referred to consumer protection

Bill Amendments

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A (Active)

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2023-S795 - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Amd §349, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S6414
2025-2026: S105

2023-S795 - Summary

Enacts the "consumer and small business protection act"; relates to standing for persons affected by prohibited or unlawful business practices; expands prohibited acts to include unfair, deceptive or abusive acts.

2023-S795 - Sponsor Memo

                                 
BILL NUMBER: S795

SPONSOR: COMRIE
 
TITLE OF BILL:

An act to amend the general business law, in relation to enacting the
"Consumer and Small business Protection Act"

 
PURPOSE:

To modernize general business law to clearly define prohibited acts and
practices in the conduct of business, trade or commerce or services.

 
SUMMARY OF PROVISIONS:

The Consumer and Small Business Protection Act (CSPA) defines prohibited
acts and practices as any unfair, deceptive or abusive acts or practices
in the conduct of business, trade or commerce or services. The general
business law (GBL) is amended to allow any person who has been injured
by violation of this section to bring an action to enjoin such unlawful
act or practice, an action to recover damages, or both regardless of
whether or not the underlying violation is consumer-oriented or has

public impact. The GBL is further amended to allow persons, if the
prohibited act or practice has caused damage to him/her or others, to
bring an action compliant with article nine of the civil practice law
and rules; an organization may seek the same remedies and damages that a
person.

 
JUSTIFICATION:

New York's business law is outdated and incapable of providing the
protections needed for modern commerce and service. Although New York is
a leader in many areas of consumer protections, it lacks the proper
protections against unfair, deceptive or abusive acts; consequently, our
state lags behind general business statutes in at least 39 other states.
The Consumer and Small Business Protection Act seeks to protect consum-
ers and small businesses against actions that are likely to cause
substantial injury, take advantage of vulnerable consumers and small
businesses, and defends them against practices that are likely to
mislead under reasonable circumstances. This bill also seeks to allow
persons to recover statutory damages of one thousand dollars in addition
to actual and punitive damages.  Individual consumers and consumer
attorneys are often reluctant to bring actions against violators due to
the prohibitive costs and time required to bring litigation against
perpetrators; essentially creating an environment where, in practice,
bad actors are free to engage in disreputable conduct. Making attorney's
fees mandatory will increase access to justice for persons seeking legal
action against violators. This bill would bring New York's GBL in line
with most other state statutes by expanding consumer protections to
protect against unfair, deceptive or abusive acts while providing a
significant deterrent to dishonest and deceitful business entities that
seek to take advantage of consumers.

 
LEGISLATIVE HISTORY:

2021- 2022: S6414- referred to consumer protection

2019-2020: A.679C(Niou)/S.2407C(Comrie) - 3rd Reading Both Houses

2018: Senate Bill 8131-A COMRIE / Assembly Bill 9824-A Niou

 
FISCAL IMPLICATIONS:

It is anticipated that the increased civil penalty and widened
protections proposed in the bill would result in an increase in monies
remitted to the State by violators and perpetrators.

 
EFFECTIVE DATE:
This act shall take effect on the sixtieth day after it shall have
become law.

2023-S795 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    795
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 6, 2023
                                ___________
 
 Introduced  by  Sens. COMRIE, BAILEY, BRISPORT, BROUK, CLEARE, GIANARIS,
   GOUNARDES, HINCHEY, HOYLMAN, JACKSON,  KAVANAGH,  KRUEGER,  LIU,  MAY,
   MYRIE,  PARKER,  RAMOS,  RIVERA,  SALAZAR, SANDERS, SKOUFIS, THOMAS --
   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 enacting the
   "Consumer and Small business Protection Act"
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  This act shall be known and may be cited as the "Consumer
 and Small business Protection Act (CSPA)".
   § 2. Legislative findings and intent. The  Legislature  declares  that
 the  State  has  a  responsibility to protect individuals and businesses
 within the State from unfair and abusive business  acts  and  practices.
 The  Legislature  further  declares  that the State's law, which guarded
 only against deceptive business acts and practices,  has  been  insuffi-
 cient  to  meet  this responsibility and has become out of date as other
 states' laws provide far greater protections. Consumers and small  busi-
 nesses have long been vulnerable to unscrupulous business practices that
 are unfair and abusive without being expressly deceptive. The State must
 not  allow  bad actors to peddle predatory products and services as long
 as they are clever enough not to get caught in a lie. To that  end,  and
 to  better  level  the  playing  field for the State's many honest busi-
 nesses, this legislation defines unfair and abusive acts  and  practices
 expansively.
   The  State  must  also  ensure that this protection covers small busi-
 nesses, which are frequent targets of predatory loans and other forms of
 exploitation, along with all  consumer  transactions.  This  legislation
 therefore  rejects  the  limitation,  imposed by courts, that prohibited
 conduct be "consumer oriented," have an impact on the public  at  large,
 or  be  part  of  a  broader pattern. Consumers and small businesses are

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02751-01-3

 S. 795                              2
 
 entitled to redress whenever they are harmed by  deceptive,  unfair,  or
 abusive conduct.
   Finally, for any of these protections to be meaningful, the State must
 ensure  that  the  remedies  for prohibited conduct provide an effective
 deterrent. This legislation therefore updates the statutory damages  for
 violations for the first time in decades, from $50 to $1,000, and allows
 meaningful  punitive  damages  for  particularly egregious behavior. The
 Legislature recognizes that unfair,  deceptive,  and  abusive  practices
 have a particular impact on poor individuals, people of color, and those
 affected  by  natural  disasters  and  health emergencies, including the
 COVID-19 pandemic. For this reason, the State must ensure  that  limited
 resources  not  prevent  individuals  and  small businesses from seeking
 remedies. This legislation therefore opens access to justice  by  making
 recovery  of  attorney's  fees  mandatory for a prevailing plaintiff and
 authorizing class actions.
   § 3. Section 349 of the general business law, as added by  chapter  43
 of  the  laws  of 1970, subdivision (h) as amended by chapter 157 of the
 laws of 1984, and subdivision (j) as added by section 6 of  part  HH  of
 chapter 55 of the laws of 2014, is amended to read as follows:
   §  349.  [Deceptive  acts] PROHIBITED ACTS and practices unlawful. (a)
 [Deceptive] THIS SECTION PROHIBITS ANY UNFAIR, DECEPTIVE OR ABUSIVE 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].
   (1) FOR THE PURPOSES OF THIS SECTION, AN ACT  OR  PRACTICE  IS  UNFAIR
 WHEN  IT  CAUSES OR IS LIKELY TO CAUSE SUBSTANTIAL INJURY, THE INJURY IS
 NOT REASONABLY AVOIDABLE, AND THE INJURY IS NOT OUTWEIGHED  BY  COUNTER-
 VAILING BENEFITS.
   (2)  FOR THE PURPOSES OF THIS SECTION, AN ACT OR PRACTICE IS DECEPTIVE
 WHEN THE ACT OR PRACTICE MISLEADS OR IS LIKELY TO MISLEAD A  PERSON  AND
 THE PERSON'S INTERPRETATION IS REASONABLE UNDER THE CIRCUMSTANCES.
   (3)  FOR  THE  PURPOSES OF THIS SECTION, AN ACT OR PRACTICE IS ABUSIVE
 WHEN:
   (I) IT MATERIALLY INTERFERES WITH THE ABILITY OF A  PERSON  TO  UNDER-
 STAND A TERM OR CONDITION OF A PRODUCT OR SERVICE; OR
   (II) TAKES UNREASONABLE ADVANTAGE OF:
   (A)  A PERSON'S LACK OF UNDERSTANDING OF THE MATERIAL RISKS, COSTS, OR
 CONDITIONS OF THE PRODUCT OR SERVICE;
   (B) A PERSON'S INABILITY TO PROTECT HIS OR HER INTERESTS IN  SELECTING
 OR USING A PRODUCT OR SERVICE; OR
   (C) A PERSON'S REASONABLE RELIANCE ON A PERSON COVERED BY THIS SECTION
 TO ACT IN HIS OR HER INTERESTS.
   (b)  Whenever  the attorney general shall believe from evidence satis-
 factory to him OR HER that any person, firm, corporation or  association
 or agent or employee thereof has engaged in or is about to engage in any
 of  the  acts  or  practices stated to be UNFAIR, unlawful, DECEPTIVE OR
 ABUSIVE, he OR SHE may bring an action in the name and on behalf of  the
 people  of  the  state of New York to enjoin such unlawful acts or prac-
 tices and to obtain restitution  of  any  moneys  or  property  obtained
 directly  or  indirectly by any such unlawful acts or practices. In such
 action preliminary relief may be granted under  article  sixty-three  of
 the  civil  practice law and rules.  SUCH ACTIONS MAY BE BROUGHT REGARD-
 LESS OF WHETHER OR NOT THE UNDERLYING VIOLATION IS DIRECTED AT  INDIVID-
 UALS  OR  BUSINESSES,  IS CONSUMER-ORIENTED, OR INVOLVES THE OFFERING OF
 GOODS, SERVICES, OR PROPERTY FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
   (c) Before any violation of this section is sought to be enjoined, the
 attorney general shall be required to give the person against whom  such
 S. 795                              3
 
 proceeding  is  contemplated notice by certified mail and an opportunity
 to show in writing within five business days after receipt of notice why
 proceedings should not be instituted against  him  OR  HER,  unless  the
 attorney  general  shall  find,  in  any  case  in which he OR SHE seeks
 preliminary relief, that to give such notice and opportunity is  not  in
 the public interest.
   (d)  In any such action it shall be a complete defense that the act or
 practice is, or if in interstate  commerce  would  be,  subject  to  and
 complies  with  the  rules and regulations of, and the statutes adminis-
 tered by, the federal trade commission or any official department, divi-
 sion, commission or agency of the United States  as  such  rules,  regu-
 lations  or  statutes are interpreted by the federal trade commission or
 such department, division, commission or agency or the federal courts.
   (e) Nothing in this section shall apply to  any  television  or  radio
 broadcasting  station  or  to  any  publisher or printer of a newspaper,
 magazine  or  other  form  of  printed  advertising,   who   broadcasts,
 publishes, or prints the advertisement.
   (f) In connection with any proposed proceeding under this section, the
 attorney general is authorized to take proof and make a determination of
 the  relevant facts, and to issue subpoenas in accordance with the civil
 practice law and rules.
   (g) This section shall apply to all [deceptive] PROHIBITED  acts  [or]
 AND  practices  [declared to be unlawful], whether or not subject to any
 other law of this state, and shall not supersede, amend  or  repeal  any
 other  law  of this state under which the attorney general is authorized
 to take any action or conduct any inquiry.
   (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  OR
 HER  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] ONE THOUSAND DOLLARS AND HIS OR HER ACTUAL DAMAGES,
 IF ANY, OR BOTH SUCH ACTIONS. SUCH ACTIONS MAY BE BROUGHT REGARDLESS  OF
 WHETHER  OR  NOT  THE  UNDERLYING  VIOLATION IS CONSUMER-ORIENTED, HAS A
 PUBLIC IMPACT OR INVOLVES THE OFFERING OF GOODS,  SERVICES  OR  PROPERTY
 FOR  PERSONAL,  FAMILY  OR  HOUSEHOLD  PURPOSES.   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] SHALL award  reasonable  attorney's  fees  AND  COSTS  to  a
 prevailing plaintiff.
   [(j)]  (I)  FOR  PURPOSES OF THIS SECTION, A "PERSON" IS DEFINED AS AN
 INDIVIDUAL, FIRM, CORPORATION,  PARTNERSHIP,  COOPERATIVE,  ASSOCIATION,
 COALITION OR ANY OTHER ORGANIZATION'S LEGAL ENTITY, OR GROUP OF INDIVID-
 UALS HOWEVER ORGANIZED;
   (II) FOR PURPOSES OF THIS SECTION "NON-PROFIT ORGANIZATION" IS DEFINED
 AS  AN  ORGANIZATION  THAT  IS (A) NOT AN INDIVIDUAL; AND (B) IS NEITHER
 ORGANIZED NOR OPERATING IN WHOLE, OR IN SIGNIFICANT PART, FOR PROFIT;
   (III) GIVEN THE REMEDIAL NATURE OF THIS SECTION, STANDING TO BRING  AN
 ACTION  UNDER  THIS SECTION, INCLUDING BUT NOT LIMITED TO ORGANIZATIONAL
 STANDING AND THIRD-PARTY STANDING,  SHALL  BE  LIBERALLY  CONSTRUED  AND
 SHALL BE AVAILABLE TO THE FULLEST EXTENT OTHERWISE PERMITTED BY LAW.
   (2)  ANY  INDIVIDUAL  OR  NON-PROFIT ORGANIZATION ENTITLED TO BRING AN
 ACTION UNDER THIS ARTICLE MAY, IF THE PROHIBITED  ACT  OR  PRACTICE  HAS
 CAUSED DAMAGE TO OTHERS SIMILARLY SITUATED, BRING AN ACTION ON BEHALF OF
 HIMSELF  OR  HERSELF AND SUCH OTHERS TO RECOVER ACTUAL, STATUTORY AND/OR
 S. 795                              4
 
 PUNITIVE DAMAGES OR OBTAIN OTHER RELIEF AS PROVIDED FOR IN THIS ARTICLE.
 STATUTORY DAMAGES UNDER THIS SECTION WILL BE LIMITED TO (I) SUCH  AMOUNT
 FOR  EACH  NAMED  PLAINTIFF AS COULD BE RECOVERED UNDER PARAGRAPH ONE OF
 THIS  SUBDIVISION;  AND  (II) SUCH AMOUNT AS THE COURT MAY ALLOW FOR ALL
 OTHER CLASS MEMBERS WITHOUT REGARD TO A MINIMUM INDIVIDUAL RECOVERY, NOT
 TO EXCEED THE LESSER OF ONE MILLION DOLLARS OR TWO PER CENTUM OF THE NET
 WORTH OF THE BUSINESS.  THUS, ANY ACTION BROUGHT UNDER THIS  SUBDIVISION
 SHALL COMPLY WITH ARTICLE NINE OF THE CIVIL PRACTICE LAW AND RULES.
   (3)  A NON-PROFIT ORGANIZATION MAY BRING AN ACTION UNDER THIS SECTION,
 ON BEHALF OF ITSELF OR ANY OF ITS MEMBERS, OR ON BEHALF OF THOSE MEMBERS
 OF THE GENERAL PUBLIC WHO HAVE BEEN INJURED BY REASON OF  ANY  VIOLATION
 OF  THIS SECTION, INCLUDING A VIOLATION INVOLVING GOODS OR SERVICES THAT
 THE NON-PROFIT ORGANIZATION PURCHASED OR RECEIVED IN ORDER  TO  TEST  OR
 EVALUATE  QUALITIES PERTAINING TO USE FOR PERSONAL, HOUSEHOLD, OR FAMILY
 PURPOSES.   A NON-PROFIT ORGANIZATION MAY SEEK  THE  SAME  REMEDIES  AND
 DAMAGES THAT A PERSON MAY SEEK UNDER PARAGRAPH ONE OF THIS SUBDIVISION.
   (4) BEFORE ANY VIOLATION OF THIS SECTION IS SOUGHT TO BE ENJOINED, THE
 PERSON  BRINGING THE ACTION SHALL BE REQUIRED TO GIVE THE PERSON AGAINST
 WHOM SUCH ACTION IS CONTEMPLATED NOTICE BY CERTIFIED MAIL, TO THE  PLACE
 WHERE  THE  TRANSACTION  OCCURRED  OR TO THE PRINCIPAL PLACE OF BUSINESS
 WITHIN THE STATE OF THE PERSON AGAINST WHOM SUCH ACTION IS CONTEMPLATED,
 AND AN OPPORTUNITY TO SHOW IN WRITING WITHIN  TEN  BUSINESS  DAYS  AFTER
 MAILING  OF  NOTICE WHY PROCEEDINGS SHOULD NOT BE INSTITUTED AGAINST HIM
 OR HER, UNLESS, IN ANY  CASE  IN  WHICH  THE  PERSON  SEEKS  PRELIMINARY
 RELIEF,  THE GIVING OF SUCH NOTICE AND OPPORTUNITY WOULD CAUSE IMMEDIATE
 AND IRREPARABLE INJURY, LOSS OR DAMAGES.
   (I) Notwithstanding any law to the contrary, all monies  recovered  or
 obtained  under  this  article  by  a  state agency or state official or
 employee acting in their official capacity shall be subject to  subdivi-
 sion eleven of section four of the state finance law.
   (J)  THIS  SECTION  IS  INTENDED  TO EXPAND AND NOT TAKE AWAY EXISTING
 CONSUMER RIGHTS.
   § 4. This act shall take effect on the sixtieth  day  after  it  shall
 have become a law.

co-Sponsors

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2023-S795A (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Amd §349, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2021-2022: S6414
2025-2026: S105

2023-S795A (ACTIVE) - Summary

2023-S795A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  795--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                              January 6, 2023
                                ___________
 
 Introduced  by  Sens.  COMRIE,  BAILEY,  BRISPORT,  BROUK,  CHU, CLEARE,
   FERNANDEZ, GIANARIS, GONZALEZ, GOUNARDES, HARCKHAM, HINCHEY,  HOYLMAN-
   SIGAL,  JACKSON,  KAVANAGH,  KRUEGER, LIU, MAY, MAYER, MYRIE, PALUMBO,
   PARKER, RAMOS, RIVERA, RYAN,  SALAZAR,  SANDERS,  SEPULVEDA,  SERRANO,
   SKOUFIS, THOMAS -- read twice and ordered printed, and when printed to
   be committed to the Committee on Consumer Protection -- recommitted to
   the Committee on Consumer Protection in accordance with Senate Rule 6,
   sec.  8  --  committee  discharged, bill amended, ordered reprinted as
   amended and recommitted to said committee
 
 AN ACT to amend the general business law, in relation  to  enacting  the
   "consumer and small business protection act"
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. This act shall be known and may be cited as  the  "consumer
 and small business protection act (CSPA)".
   §  2.  Legislative  findings and intent. The Legislature declares that
 the State has a responsibility to  protect  individuals  and  businesses
 within  the  State  from unfair and abusive business acts and practices.
 The Legislature further declares that the  State's  law,  which  guarded
 only  against  deceptive  business acts and practices, has been insuffi-
 cient to meet this responsibility and has become out of  date  as  other
 states'  laws provide far greater protections. Consumers and small busi-
 nesses have long been vulnerable to unscrupulous business practices that
 are unfair and abusive without being expressly deceptive. The State must
 not allow bad actors to peddle predatory products and services  as  long
 as  they  are clever enough not to get caught in a lie. To that end, and
 to better level the playing field for  the  State's  many  honest  busi-
 nesses,  this  legislation defines unfair and abusive acts and practices
 expansively.
   The State must also ensure that this  protection  covers  small  busi-
 nesses, which are frequent targets of predatory loans and other forms of

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD02751-06-4

 S. 795--A                           2
 
 exploitation,  along  with  all  consumer transactions. This legislation
 therefore rejects the limitation, imposed  by  courts,  that  prohibited
 conduct  be  "consumer oriented," have an impact on the public at large,
 or  be  part  of  a  broader pattern. Consumers and small businesses are
 entitled to redress whenever they are harmed by  deceptive,  unfair,  or
 abusive conduct.
   For  any  of these protections to be meaningful, the State must ensure
 that the remedies for prohibited conduct provide an effective deterrent.
 This legislation therefore updates the statutory damages for  violations
 for the first time in decades, from $50 to $1,000, and allows meaningful
 punitive  damages  for  particularly egregious behavior. The Legislature
 recognizes that unfair, deceptive, and abusive practices have a  partic-
 ular  impact on poor individuals, people of color, and those affected by
 natural disasters and health emergencies, including the COVID-19 pandem-
 ic. For this reason, the State must ensure that  limited  resources  not
 prevent  individuals  and  small  businesses from seeking remedies. This
 legislation therefore opens access to  justice  by  making  recovery  of
 attorney's  fees  mandatory  for  a prevailing plaintiff and authorizing
 class actions.
   § 3. Section 349 of the general business law, as added by  chapter  43
 of  the  laws  of 1970, subdivision (h) as amended by chapter 157 of the
 laws of 1984, and subdivision (j) as added by section 6 of  part  HH  of
 chapter 55 of the laws of 2014, is amended to read as follows:
   §  349.  [Deceptive acts] UNFAIR, DECEPTIVE, OR ABUSIVE ACTS and prac-
 tices unlawful. (a) [Deceptive] ANY UNFAIR, DECEPTIVE OR ABUSIVE 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.
   (1)  FOR  THE  PURPOSES  OF THIS SECTION, AN ACT OR PRACTICE IS UNFAIR
 WHEN IT CAUSES OR IS LIKELY TO CAUSE SUBSTANTIAL INJURY, THE  INJURY  IS
 NOT  REASONABLY  AVOIDABLE, AND THE INJURY IS NOT OUTWEIGHED BY COUNTER-
 VAILING BENEFITS.
   (2) FOR THE PURPOSES OF THIS SECTION, AN ACT OR  PRACTICE  IS  ABUSIVE
 WHEN:
   (I)  IT  MATERIALLY  INTERFERES WITH THE ABILITY OF A PERSON TO UNDER-
 STAND A TERM OR CONDITION OF A PRODUCT OR SERVICE; OR
   (II) TAKES UNREASONABLE ADVANTAGE OF:
   (A) A PERSON'S LACK OF UNDERSTANDING OF THE MATERIAL RISKS, COSTS,  OR
 CONDITIONS OF THE PRODUCT OR SERVICE; OR
   (B) A PERSON'S INABILITY TO PROTECT SUCH PERSON'S INTERESTS IN SELECT-
 ING OR USING A PRODUCT OR SERVICE.
   (b)  Whenever  the attorney general shall believe from evidence satis-
 factory to [him] THE ATTORNEY GENERAL that any person, firm, corporation
 or association or agent or employee thereof has engaged in or  is  about
 to  engage in any of the acts or practices stated to be UNFAIR, unlawful
 [he], DECEPTIVE OR ABUSIVE, THE ATTORNEY GENERAL may bring an action  in
 the  name and on behalf of the people of the state of New York to enjoin
 such unlawful acts or practices and to obtain restitution of any  moneys
 or property obtained directly or indirectly by any such unlawful acts or
 practices.  In such action preliminary relief may be granted under arti-
 cle sixty-three of the civil practice law and rules.   SUCH ACTIONS  MAY
 BE  BROUGHT  REGARDLESS  OF  WHETHER  OR NOT THE UNDERLYING VIOLATION IS
 DIRECTED AT INDIVIDUALS OR BUSINESSES, IS CONSUMER-ORIENTED, OR INVOLVES
 THE OFFERING OF GOODS, SERVICES, OR PROPERTY  FOR  PERSONAL,  FAMILY  OR
 HOUSEHOLD PURPOSES.
   (c) Before any violation of this section is sought to be enjoined, the
 attorney  general shall be required to give the person against whom such
 S. 795--A                           3
 
 proceeding is contemplated notice by certified mail and  an  opportunity
 to show in writing within five business days after receipt of notice why
 proceedings  should  not be instituted against [him] SUCH PERSON, unless
 the  attorney general shall find, in any case in which [he] THE ATTORNEY
 GENERAL seeks preliminary relief, that to give such notice and  opportu-
 nity is not in the public interest.
   (d)  In any such action it shall be a complete defense that the act or
 practice is, or if in interstate  commerce  would  be,  subject  to  and
 complies  with  the  rules and regulations of, and the statutes adminis-
 tered by, the federal trade commission or any official department, divi-
 sion, commission or agency of the United States  as  such  rules,  regu-
 lations  or  statutes are interpreted by the federal trade commission or
 such department, division, commission or agency or the federal courts.
   (e) Nothing in this section shall apply to  any  television  or  radio
 broadcasting  station  or  to  any  publisher or printer of a newspaper,
 magazine or other form of printed OR  DIGITAL  advertising,  who  broad-
 casts, publishes, or prints the advertisement.
   (E-1)  NOTHING  IN  THIS SECTION PERTAINING TO ABUSIVE OR UNFAIR PRAC-
 TICES, OR THE PROVISIONS OF SUBDIVISION (H) OF THIS SECTION, SHALL APPLY
 TO:
   (1) A FEDERAL COVERED INVESTMENT ADVISER,  AN  INVESTMENT  ADVISER  AS
 DEFINED  IN  13  NYCRR  PART  11,  A BROKER OR DEALER AS THOSE TERMS ARE
 DEFINED IN SECTION THREE HUNDRED FIFTY-NINE-E  OF  THIS  CHAPTER,  OR  A
 FEDERALLY  CHARTERED  BANK,  OTHER  THAN  FOR  AN  ACT  OR  PRACTICE  IN
 CONNECTION WITH LOANS FOR THE PURPOSE OF FINANCING  THE  PURCHASE  OF  A
 MOTOR VEHICLE AS DEFINED IN SECTION ONE HUNDRED TWENTY-FIVE OF THE VEHI-
 CLE AND TRAFFIC LAW, OR LOANS FOR THE PURPOSE OF FINANCING POSTSECONDARY
 EDUCATION AND EXPENSES RELATED THERETO; OR
   (2)  ANY PERSON OR ENTITY SUBJECT TO ARTICLE TWENTY-FOUR OF THE INSUR-
 ANCE LAW, OR THEIR AFFILIATES.
   (f) In connection with any proposed proceeding under this section, the
 attorney general is authorized to take proof and make a determination of
 the relevant facts, and to issue subpoenas in accordance with the  civil
 practice law and rules.
   (g)  This section shall apply to all [deceptive] UNFAIR, DECEPTIVE, OR
 ABUSIVE acts or practices [declared to  be  unlawful],  whether  or  not
 subject  to  any other law of this state, and shall not supersede, amend
 or repeal any other law of this state under which the  attorney  general
 is authorized to take any action or conduct any inquiry.
   (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]
 SUCH PERSON'S 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] ONE THOUSAND DOLLARS  AND  SUCH  PERSON'S
 ACTUAL  DAMAGES,  IF  ANY,  OR  BOTH  SUCH  ACTIONS. SUCH ACTIONS MAY BE
 BROUGHT REGARDLESS OF WHETHER OR NOT THE UNDERLYING VIOLATION IS CONSUM-
 ER-ORIENTED, HAS A PUBLIC IMPACT OR  INVOLVES  THE  OFFERING  OF  GOODS,
 SERVICES  OR  PROPERTY  FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.  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] SHALL award reasonable attorney's
 fees AND COSTS to a prevailing plaintiff.
   (2)  AT  LEAST  THIRTY  DAYS BEFORE ANY PERSON OTHER THAN THE ATTORNEY
 GENERAL MAY BRING AN ACTION PURSUANT TO PARAGRAPH ONE OF  THIS  SUBDIVI-
 S. 795--A                           4
 
 SION,  SUCH  PERSON SHALL SEND THE PARTY AGAINST WHOM ANY SUCH ACTION IS
 CONTEMPLATED, THE "RESPONDENT", NOTICE BY CERTIFIED MAIL TO THE RESPOND-
 ENT'S PLACE OF  BUSINESS.  SUCH  NOTICE  MUST  REASONABLY  DESCRIBE  THE
 UNFAIR, DECEPTIVE, OR ABUSIVE ACTS OR PRACTICES AT ISSUE, STATE A DEMAND
 FOR RELIEF, AND INCLUDE THE SENDER'S MAILING ADDRESS OR E-MAIL ADDRESS.
   (3)  A  RESPONDENT  RECEIVING NOTICE PURSUANT TO PARAGRAPH TWO OF THIS
 SUBDIVISION MAY, WITHIN TEN DAYS OF DELIVERY  OF  SUCH  NOTICE,  MAKE  A
 WRITTEN TENDER OF SETTLEMENT BY CERTIFIED MAIL OR BY E-MAIL, IF PROVIDED
 IN  THE  NOTICE. IF SUCH RELIEF IS REJECTED, IN ANY SUBSEQUENT ACTION ON
 THE BASIS OF THE NOTICED CONDUCT, THE RESPONDENT MAY  FILE  THE  WRITTEN
 TENDER  OF  SETTLEMENT WITH AN AFFIDAVIT CONCERNING ITS REJECTION AND IF
 SUCH SETTLEMENT IS DEEMED COMPLETE RELIEF BY THE COURT OR TRIBUNAL,  THE
 COURT OR TRIBUNAL MAY LIMIT ANY RECOVERY TO THE RELIEF TENDERED THEREIN.
 A  SETTLEMENT  SHALL  BE DEEMED COMPLETE ONLY IF THE RESPONDENT PROVIDES
 STATUTORY DAMAGES, ACTUAL DAMAGES, IF ANY, AND CORRECTS AND  PERMANENTLY
 CEASES  SUCH  ACTS  OR PRACTICES DESCRIBED IN THE NOTICE AS TO ALL OTHER
 IMPACTED PERSONS, AND IF SUCH SETTLEMENT WAS  FILED  WITH  THE  ATTORNEY
 GENERAL IN ACCORDANCE WITH PARAGRAPH SEVEN OF THIS SUBDIVISION.
   (4)  A  NOTICE PURSUANT TO PARAGRAPH TWO OF THIS SUBDIVISION SHALL NOT
 BE REQUIRED PRIOR TO THE FILING OF AN ACTION IF:
   (I) SUCH ACTION IS BROUGHT AS A COUNTERCLAIM OR CROSSCLAIM;
   (II) THE SENDING OF SUCH NOTICE WOULD CAUSE IMMEDIATE AND  IRREPARABLE
 INJURY, LOSS, OR DAMAGES;
   (III)  THE  PERSON BRINGING THE ACTION IS NOT REPRESENTED BY AN ATTOR-
 NEY;
   (IV) A MAILING ADDRESS FOR THE RESPONDENT IS NOT REASONABLY  DISCERNI-
 BLE;
   (V)  FILING SUIT IS NECESSARY TO PREVENT THE EXPIRATION OF THE STATUTE
 OF LIMITATIONS;
   (VI) THE RESPONDENT HAS PREVIOUSLY BEEN THE SUBJECT OF  AN  ACTION  BY
 THE ATTORNEY GENERAL FOR SUBSTANTIALLY SIMILAR CONDUCT;
   (VII)  THE  RESPONDENT HAS ALREADY RECEIVED A NOTICE PURSUANT TO PARA-
 GRAPH FOUR OF THIS SUBDIVISION FOR SUBSTANTIALLY SIMILAR CONDUCT; OR
   (VIII) THERE ARE OTHER EXIGENT CIRCUMSTANCES.
   (5) ANY RESPONDENT SEEKING TO TENDER SETTLEMENT PURSUANT TO  PARAGRAPH
 THREE  OF THIS SUBDIVISION SHALL FILE DOCUMENTATION OF SUCH OFFER, ALONG
 WITH THE UNDERLYING NOTICE PROVIDED TO THE RESPONDENT PURSUANT TO  PARA-
 GRAPH  FOUR,  WITH  THE  ATTORNEY  GENERAL.  THE  ATTORNEY GENERAL SHALL
 PROMULGATE REGULATIONS ESTABLISHING THE PROCESS FOR FILING SUCH  NOTICES
 AND  RESPONSES IN THE STATE REGISTER. THE ATTORNEY GENERAL MAY AMEND THE
 PROCESS FOR FILING SUCH NOTICES AND RESPONSES AT ANY TIME.
   (6) A FAILURE BY A RESPONDENT TO FILE WITH THE ATTORNEY GENERAL PURSU-
 ANT TO PARAGRAPH FIVE OF THIS SUBDIVISION WITHIN SEVEN DAYS OF  DELIVER-
 ING A RESPONSE TO A NOTICE SENT PURSUANT TO PARAGRAPH TWO OF THIS SUBDI-
 VISION SHALL ITSELF BE CONSIDERED A VIOLATION OF THIS SECTION SUBJECT TO
 AN  ACTION BROUGHT BY THE ATTORNEY GENERAL THROUGH SUBDIVISION B OF THIS
 SECTION, PROVIDED, HOWEVER, THAT ANY FAILURE  FILED  WITH  THE  ATTORNEY
 GENERAL  PRIOR  TO THE ATTORNEY GENERAL HAVING ESTABLISHED A PROCESS FOR
 SUCH FILING SHALL NOT BE ACTIONABLE. A VIOLATION FOR FAILURE TO FILE  ON
 TIME  SHALL  BE  SUBJECT  TO  A CIVIL PENALTY NOT TO EXCEED FIVE HUNDRED
 DOLLARS FOR EACH DAY SUCH VIOLATION CONTINUES, IN ADDITION TO ANY  OTHER
 PENALTIES AVAILABLE UNDER THIS SECTION FOR PROHIBITED ACTS OR PRACTICES.
   (I)  Notwithstanding  any law to the contrary, all monies recovered or
 obtained under this article by a  state  agency  or  state  official  or
 employee  acting in their official capacity shall be subject to subdivi-
 sion eleven of section four of the state finance law.
 S. 795--A                           5
 
   (j) THIS SECTION IS INTENDED TO EXPAND  AND  NOT  TAKE  AWAY  EXISTING
 CONSUMER RIGHTS.
   §  4. Severability. If any part or provision of this act or its appli-
 cation to a person  is  held  invalid,  the  invalidity  of  that  part,
 provision  or  application  does  not  affect other parts, provisions or
 applications of this act that can be given effect  without  the  invalid
 provision or application.
   §  5.    This  act  shall take effect on the one hundred twentieth day
 after it shall have become a law.

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Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

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2023-S795 - Summary

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