N.Y. General Business Law § 349: Unfair, deceptive, or abusive acts and practices unlawful

§ 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.