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This entry was published on 2014-09-22
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Violations and penalties
General Business (GBS) CHAPTER 20, ARTICLE 23-A
§ 359-g. Violations and penalties. 1. (a) Any person, partnership,
corporation, company, trust or association having been served with an
order issued pursuant to the provisions of section three hundred and
fifty-four staying or enjoining any practices or transactions, or with
any order or with a final judgement in an action brought by the
attorney-general, as in this article provided, staying or enjoining any
practices or transactions, and any person, partnership, corporation,
company, trust or association having knowledge of the issuance of any
such order or judgment who, while such order or judgment is in effect,
shall disobey the same, shall be deemed in contempt of court and shall
be guilty of a misdemeanor and in addition for every violation or
attempted violation of such order or such judgment shall be liable to a
civil penalty of three thousand dollars, recoverable in an action
brought by and in the name of the people of the state of New York. Such
penalty shall be cumulative and more than one penalty shall be
recoverable in the same action in any court of competent jurisdiction.
Any person, partnership, corporation, company, trust or association who
has previously been convicted of a violation of this article, or who has
been previously convicted within the five years immediately preceding,
of any crime in this state, or any offense without the jurisdiction of
this state for which a sentence to a term of imprisonment in excess of
one year was authorized, and which crime or offense involved the
issuance, distribution, exchange, sale, negotiation or purchase of
securities or commodities, by fraud, deception, concealment,
suppression, false pretense, false promise, theft or fictitious purchase
or sale, or who has been previously found in contempt of court hereunder
under this article and who subsequently violates the provisions of this
section or any other provision of this article shall be guilty of a
Class E felony.

(b) For purposes of this section the term "security" shall be as
defined in this article or in section two of the United States
Securities Exchange Act of 1934, 15 U.S.C. § 78c and the term
"commodity" shall be as defined in this article or in section two of the
United States Commodities Exchange Act, 7 U.S.C. § 2.

(c) An appeal from an order or judgment entered under the provisions
of this article shall not operate as a stay of proceedings to enforce
such order or judgment, or suspend the injunction thereby granted unless
a justice of the supreme court, assigned to the appellate division to
which such appeal is taken, shall, upon notice to the attorney-general,
make an order granting such stay or suspending such injunction upon such
terms as he deems proper.

2. Any person, partnership, corporation, company, trust or association
violating any of the provisions of this article shall be guilty of a
misdemeanor, except where otherwise provided herein, punishable by a
fine of not more than five hundred dollars, or imprisonment for not more
than one year or both.

3. Modification or dissolution of a permanent injunction. Any person
against whom an injunction has been granted under the provisions of this
article may apply to the supreme court at any time after five years from
the date such permanent injunction became effective, upon at least sixty
days notice to the attorney-general, for an order dissolving such
injunction or modifying the same upon such terms and conditions as the
court deems necessary or desirable. Such application for dissolution or
modification of such injunction shall contain a recitation of the facts
and circumstances which caused the granting of the injunction; the
occupation and employment of the person making the application and his
financial remuneration therefrom since the time the injunction was
granted; his net worth at the time of the application and the source
thereof, together with any other facts bearing upon the reasonableness
of the application and the character of the applicant, as may enable the
court to issue an order that will properly dispose of such application
in the interests of justice. A copy of such application, together with
copies of any other papers in support thereof, shall be served upon the
attorney-general at least sixty days prior to the return date thereof.
In addition thereto the applicant shall file with the court a good and
sufficient surety bond in the sum of one thousand dollars guaranteeing
that he will pay all costs and expenses of an investigation by the
attorney-general of such applicant and the statements and claims alleged
in the application together with any further investigation which the
attorney-general may deem necessary or desirable to determine whether he
should consent to the application, oppose the same, or make such other
recommendations to the court as in his opinion are desirable to be
included in any modification of such injunction. Should it appear in the
course of such investigation by the attorney-general that said sum is
not sufficient, the attorney-general may apply to the court by usual
notice of motion or order to show cause for an increase in the amount of
security or further surety bond necessary to fully pay all of the costs
of the investigation and the court may require such further bond as the
situation requires to fully pay the costs and expenses of the
investigation. Upon the completion of such investigation, the
attorney-general may file an answer to such application setting forth
such facts as are pertinent to the determination by the court of the
matter before it and whether said injunction should be dissolved,
modified or continued in whole or in part and what conditions, if any,
shall be attached to any dissolution or modification of said injunction.
After a hearing upon such application and after any further
investigation, proof or testimony which the court may desire has been
offered, or at any adjourned dates thereof, the court may make a final
order dissolving the permanent injunction or modifying the same upon
such terms and conditions as in its opinion are just and desirable, or
in its discretion, may deny the application. Such order shall contain a
direction that the applicant pay to the attorney-general the costs and
expenses of the investigation in connection with the proceeding, and any
judgment entered thereon may be enforced directly against the surety on
the bond. The court shall grant no temporary or other relief from the
injunction in force pending a final determination of such application.
No application under this subdivision shall be entertained: (a) where
the injunction was granted as an incident to a crime of which the
applicant had been or was later convicted, nor (b) in any case where the
applicant has been convicted of a felony or a crime that would be a
felony if committed in the state of New York since the issuance of the
injunction or (c) convicted at any time of any crime involving stocks,
bonds, investments, securities, or like instruments, which are the
subject matter of this article. Nor shall anything contained in this
subdivision be construed to deny to or interfere with the power of the
attorney-general to bring any other action or proceeding, civil or
criminal, against the applicant at any time.