Adds as an element of recovery for violations of the provisions related to deceptive acts and practices a requirement that the act or practice complained of caused him of her to enter into the activity that caused the damages.
STATE OF NEW YORK
________________________________________________________________________
5981
2009-2010 Regular Sessions
IN ASSEMBLY
February 23, 2009
___________
Introduced by M. of A. ABBATE -- read once and referred to the Committee
on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to deceptive acts
and practices
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision (h) of section 349 of the general business law,
2 as amended by chapter 157 of the laws of 1984, is amended to read as
3 follows:
4 (h) In addition to the right of action granted to the attorney general
5 pursuant to this section, any person who has been injured by reason of
6 any violation of this section may bring an action in his own name to
7 enjoin such unlawful act or practice, an action to recover his actual
8 damages or fifty dollars, whichever is greater, or both such actions.
9 Any person who asserts a claim under this section in a class action is
10 limited to recovering only actual damages. Each person seeking to
11 recover damages under this section shall be required to prove that the
12 deceptive act or practice caused him or her to enter into the trans-
13 action that resulted in his or her damages. Proof of the existence of an
14 unfair or deceptive act or practice shall not support an award of
15 damages without proof that the person seeking damages suffered an actual
16 out-of-pocket loss. For purposes of this subdivision, the term "out-of-
17 pocket loss" means an amount of money equal to the difference between
18 the amount paid by the consumer for the good or service and the actual
19 market value of the good or service that the consumer actually received.
20 The court may, in its discretion, increase the award of damages to an
21 amount not to exceed three times the actual damages up to one thousand
22 dollars, if the court finds the defendant willfully or knowingly
23 violated this section. The court may award reasonable attorney's fees to
24 a prevailing plaintiff.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD09504-01-9
A. 5981 2
1 § 2. Subdivision 3 of section 350-e of the general business law, as
2 amended by chapter 328 of the laws of 2007, is amended to read as
3 follows:
4 3. Any person who has been injured by reason of any violation of
5 section three hundred fifty or three hundred fifty-a of this article may
6 bring an action in his or her own name to enjoin such unlawful act or
7 practice, an action to recover his or her actual damages or five hundred
8 dollars, whichever is greater, or both such actions. Each person seek-
9 ing to recover damages under this section shall be required to prove
10 that the deceptive act or practice caused him or her to enter into the
11 transaction that resulted in his or her damages. Proof of the existence
12 of an unfair or deceptive act or practice shall not support an award of
13 damages without proof that the person seeking damages suffered an actual
14 out-of-pocket loss. For purposes of this subdivision, the term "out-of-
15 pocket loss" means an amount of money equal to the difference between
16 the amount paid by the consumer for the good or service and the actual
17 market value of the good or service that the consumer actually received.
18 The court may, in its discretion, increase the award of damages to an
19 amount not to exceed three times the actual damages, up to ten thousand
20 dollars, if the court finds that the defendant willfully or knowingly
21 violated this section. The court may award reasonable attorney's fees
22 to a prevailing plaintiff.
23 § 3. This act shall take effect immediately and shall apply to all
24 cases pending or filed on or after such effective date.
