N.Y. General Business Law § 396: Unlawful selling practices

§ 396. Unlawful selling practices. 1. No person, firm, partnership,

association or corporation, or agent or employee thereof, shall, in any

manner, or by any means of advertisement, or other means of

communication, offer for sale any merchandise, commodity, or service, as

part of a plan or scheme with the intent, design, or purpose not to sell

the merchandise, commodity, or service so advertised at the price stated

therein, or with the intent, design or purpose not to sell the

merchandise, commodity, or service so advertised. Nothing in this

section shall apply to any television or sound radio broadcasting

station or to any publisher or printer of a newspaper, magazine, or

other form of printed advertising, who broadcasts, publishes, or prints

such advertisement.

2. a. No person, firm, partnership, association or corporation, or

agent or employee thereof, shall, in any manner, or by any means, offer

for sale goods, wares or merchandise, where the offer includes the

voluntary and unsolicited sending of goods, wares or merchandise not

actually ordered or requested by the recipient, either orally or in

writing; any such goods, wares or merchandise so sent shall be

prominently marked upon the container thereof in bold letters as

follows: "THIS IS A GIFT. PAYMENT NOT REQUIRED FOR THIS ITEM". The

receipt of any goods, wares or merchandise pursuant to an existing

membership or club arrangement in which the recipient receives such

goods, wares or merchandise at specified intervals or a plan where the

recipient agrees to receive such goods, wares or merchandise without

further obligation shall not be construed as the receipt of unsolicited

goods, wares or merchandise for the purposes of this section. 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 a, 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.

b. If a person is a member of an organization which makes retail sales

of any goods, wares, or merchandise to its members, and the person

notifies the organization of his termination of membership by certified

mail, return receipt requested, any unordered goods, wares, or

merchandise which are sent to the person after thirty days following

execution of the return receipt for the certified letter by the

organization, shall for all purposes be deemed unconditional gifts to

the person, who may use or dispose of the goods, wares, or merchandise

in any manner he sees fit without any obligation on his part to the

organization.

If the termination of a person's membership in such organization

breaches any agreement with the organization, nothing in this

subdivision shall relieve the person from liability for damages to which

he might be otherwise subjected to pursuant to law.

The provisions of this paragraph shall not apply to a member of an

organization the sole purpose of which is the sale of a specific type of

goods, wares or merchandise to its members until the member has

fulfilled his initial purchase obligation.

3. a. Whenever there shall be a violation of this section, an

application may be made by the attorney general in the name of the

people of the state of New York to a court or justice having

jurisdiction to issue an injunction, and upon notice to the defendant of

not less than five days, to enjoin and restrain the continuance of such

violation; and if it shall appear to the satisfaction of the court or

justice that the defendant is, in fact, violating this section, an

injunction may be issued by such court or justice, enjoining and

restraining such action or violation, without requiring proof that any

person has, in fact, been misled or deceived or otherwise damaged

thereby.

b. In addition to the authority granted to the attorney general

pursuant to paragraph a of this subdivision and the authority granted to

a recipient pursuant to paragraph a of subdivision two of this section,

the attorney general, or any person adversely affected by reason of a

violation of the provisions of subdivision two of this section, may

bring an action against a person who violates the provisions of

subdivision two of this section to recover the greater of:

(1) actual damages; or

(2) up to five hundred dollars for each instance in which goods, wares

or merchandise were sent in violation of the provisions of subdivision

two of this section.

c. In an action under paragraph b of this subdivision the court may

award the costs of the action together with reasonable attorney's fees

to a prevailing plaintiff.

d. Nothing in this section shall in any way limit rights or remedies

which are otherwise available under law to the attorney general or any

other person authorized to bring an action under this section.