Legislation

§ 349. Unfair, deceptive, or abusive acts and practices unlawful. (a)
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. For the purposes of this section:

(1) An act or practice is unfair when it causes or is likely to cause
substantial injury which is not reasonably avoidable and is not
outweighed by countervailing benefits to consumers or to competition.
The term "substantial injury" as used in this subdivision shall have the
same meaning as the term "substantial injury" in the federal trade
commission act, 15 U.S.C. Section 41 et seq.

(2) An act or practice is abusive when:

(i) it materially interferes with the ability of a person to
understand a term or condition of a product or service; or

(ii) it takes unreasonable advantage of:

(A) a lack of understanding on the part of a person of the material
risks, costs, or conditions of a product or service;

(B) the inability of a person to protect such person's interests in
selecting or using a product or service; or

(C) the reasonable reliance by a person on a person engaging in the
act or practice to act in the relying person's interests.

(b) (1) Whenever the attorney general shall believe from evidence
satisfactory to the attorney general that any person, including but not
limited to an individual, firm, corporation, company, partnership 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, deceptive,
or abusive, the attorney general may bring an action or proceeding 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 or proceeding, preliminary relief may be
granted under article sixty-three of the civil practice law and rules.

(2) The attorney general may bring such an action or proceeding
against any person conducting any business, trade or commerce or
furnishing a service in this state, whether or not the person is without
the state. The attorney general may also bring such an action or
proceeding against any person within the state conducting any business,
trade, or commerce or furnishing a service, whether or not the business,
trade, commerce, or service is conducted or furnished without the state.

(c) Before commencing an action or proceeding pursuant to this
section, the attorney general shall be required to give the person
against whom such action or proceeding is contemplated notice by
certified mail and an opportunity to show in writing within ten calendar
days after receipt of notice why an action or proceeding should not be
instituted against such person, unless the attorney general shall find,
in any case in which the attorney general seeks preliminary relief, that
to give such notice and opportunity is not in the public interest.

(d) In any action or proceeding brought pursuant to this section 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 administered by, the federal trade
commission or any official department, division, commission or agency of
the United States as such rules, regulations 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 action or 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 unfair, deceptive, or abusive acts
or practices, 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 or any other party is authorized to take any
action or conduct any inquiry.

(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 deceptive act or deceptive practice made unlawful by this section
may bring an action in such person's own name to enjoin such deceptive
act or deceptive practice, an action to recover such person's 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 attorney's fees to
a prevailing plaintiff.

(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
subdivision eleven of section four of the state finance law.