New York State Assembly

 
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A02855 Summary:

A02855 Actions:

A02855 Committee Votes:

Committee:CONSUMER AFFAIRS AND PROTECTION   Chair:Kavanagh      
DATE:04/25/2017AYE/NAY:12/4  Action: Favorable refer to committee Codes        
Kavanagh
Aye
Palumbo
Nay
Abbate
Aye
McDonough
Nay
Quart
Aye
McKevitt
Nay
Buchwald
Aye
Stec
Nay
Solages
Aye
Simon
Aye
Dilan
Aye
Seawright
Aye
Rozic
Aye
Niou
Aye
Pheffer Amato
Aye
Williams
Aye

Committee:CODES   Chair:Lentol      
DATE:06/06/2017AYE/NAY:17/5  Action: Favorable refer to committee Rules        
Lentol
Aye
Graf
Nay
Schimminger
Aye
Giglio
Nay
Weinstein
Aye
McKevitt
Nay
Pretlow
Aye
Montesano
Nay
Cook
Aye
Ra
Nay
Cymbrowitz
Aye
Morinello
Aye
Titus
Aye
O'Donnell
Aye
Lavine
Aye
Perry
Aye
Zebrowski
Aye
Abinanti
Aye
Weprin
Aye
Mosley
Aye
Hevesi
Aye
Fahy
Aye

Committee:RULES   Chair:Heastie      
DATE:06/07/2017AYE/NAY:28/0  Action: Favorable         
Heastie
Aye
Kolb
Excused
Gottfried
Aye
Oaks
Aye
Lentol
Aye
Butler
Aye
Farrell
Aye
Crouch
Aye
Gantt
Aye
Finch
Aye
Nolan
Aye
Barclay
Aye
Weinstein
Aye
Raia
Aye
Hooper
Excused
Hawley
Aye
Ortiz
Aye
Pretlow
Aye
Cook
Aye
Glick
Aye
Morelle
Aye
Aubry
Aye
Englebright
Aye
Dinowitz
Aye
Colton
Aye
Magnarelli
Excused
Perry
Aye
Galef
Aye
Paulin
Aye
Titus
Aye
Peoples-Stokes
Aye

A02855 Floor Votes:

A02855 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2855
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 23, 2017
                                       ___________
 
        Introduced  by M. of A. STECK -- read once and referred to the Committee
          on Consumer Affairs and Protection
 
        AN ACT to amend the general business law, in relation to  unconscionable
          terms in standard form contracts
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:

     1    Section 1. The general business law is amended by adding a new section
     2  349-f to read as follows:
     3    § 349-f. Unconscionable terms in standard form contracts.  1.    Find-
     4  ings.  The  inclusion of unconscionable terms in standard form contracts
     5  regarding dispute resolution is unfair not only  because  any  resulting
     6  dispute  resolution proceeding is unfair to the party forced to agree to
     7  the unconscionable terms, but  also  because  the  unconscionable  terms
     8  discourage  valid  claims.  Furthermore,  when  the provisions are chal-
     9  lenged, courts may simply strike the unconscionable  terms  but  enforce
    10  the  remainder  of  the  agreement  regarding  dispute  resolution. As a
    11  result, businesses have little incentive not  to  include  these  terms.
    12  Furthermore,  it is unlikely that there is any meeting of the minds over
    13  a dispute-resolution agreement that does not include severed unconscion-
    14  able terms.
    15    2.   Definition. For the purposes  of  this  section,  "standard  form
    16  contract" shall mean any contract to which only one of the parties is an
    17  individual  and that individual does not draft the contract. In order to
    18  be a standard form contract, the document constituting the contract need
    19  not be a preprinted form nor need it contain language completely identi-
    20  cal to any other contract.
    21    3. Unconscionable terms. There is a rebuttable  presumption  that  the
    22  following   contractual  terms  are  substantively  unconscionable  when
    23  included in a standard form contract to which only one of the parties to
    24  the contract is an individual and that individual  does  not  draft  the
    25  contract:
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD07681-01-7
        A. 2855                             2
 
     1    (a)  a  requirement  that resolution of legal claims takes place in an
     2  inconvenient venue. An "inconvenient venue" is, for  purposes  of  state
     3  law  claims,  a place other than the county where the individual resides
     4  or the contract was consummated, and for purposes of federal law claims,
     5  a  place  other  than the federal judicial district where the individual
     6  resides or the contract was consummated;
     7    (b) a waiver of the individual's right to assert claims or seek  reme-
     8  dies provided by state or federal statute;
     9    (c)  a  waiver  of  the individual's right to seek punitive damages as
    10  provided by law;
    11    (d) a requirement that the individual bring an  action  prior  to  the
    12  expiration of the applicable statute of limitations;
    13    (e)  a  requirement  that the individual pay fees and costs to bring a
    14  legal claim substantially in excess of the  fees  and  costs  that  this
    15  state's  courts  require to bring such a state law claim or that federal
    16  courts require to bring such a federal law claim; and
    17    (f) the contract does not advise the individual that  it  is  a  legal
    18  document,  that the individual should consult with counsel of his or her
    19  choosing concerning the meaning of its terms,  and  does  not  give  the
    20  individual  a reasonable time in which to review the contact with his or
    21  her counsel.
    22    4. Relation to common law and the uniform commercial code.  In  deter-
    23  mining  whether the terms described in subdivision three of this section
    24  are unenforceable, a court shall consider the principles  that  normally
    25  guide  courts  in this state in determining whether unconscionable terms
    26  are enforceable. Additionally, the common law and the uniform commercial
    27  code shall guide courts in  determining  the  enforceability  of  unfair
    28  terms not specifically identified in such subdivision.
    29    5.  Severability.  There  is a rebuttable presumption that a term in a
    30  standard form contract that is found to be unconscionable is not severa-
    31  ble from the agreement in which it is situated. In  determining  whether
    32  this  presumption has been rebutted courts should consider general state
    33  law principles regarding the severability of unenforceable terms.
    34    6. Unfair and deceptive act and practice. It is an unfair  and  decep-
    35  tive  practice  in violation of section three hundred forty-nine of this
    36  article to include one of the presumptively-unconscionable terms identi-
    37  fied in subdivision three of this section in a standard form contract to
    38  which only one of the parties to the contract is an individual and  that
    39  individual  does  not  draft  the  contract.   Notwithstanding any other
    40  provision of law to the contrary, a party who prevails in a claim  under
    41  this  section  shall  be  entitled  to one thousand dollars in statutory
    42  damages per violation. Additionally, such an action may be maintained by
    43  an employee against his or her employer whether or  not  the  labor  law
    44  otherwise allows for such claims.
    45    §  2. This act shall take effect on the first of January next succeed-
    46  ing the date on which it shall have become a law,  and  shall  apply  to
    47  contracts entered into on or after such date.