Section 20-700
§ 20-700 Unfair trade practices prohibited. No person shall engage in
any deceptive or unconscionable trade practice in the sale, lease,
rental or loan or in the offering for sale, lease, rental, or loan of
any consumer goods or services, or in the collection of consumer debts.
Section 20-701
§ 20-701 Definitions. a. Deceptive trade practice. Any false, falsely
disparaging, or misleading oral or written statement, visual description
or other representation of any kind made in connection with the sale,
lease, rental or loan or in connection with the offering for sale,
lease, rental, or loan of consumer goods or services, or in the
extension of consumer credit or in the collection of consumer debts,
which has the capacity, tendency or effect of deceiving or misleading
consumers. Deceptive trade practices include but are not limited to: (1)
representations that goods or services have sponsorship, approval,
accessories, characteristics, ingredients, uses, benefits, or quantities
that they do not have; the supplier has a sponsorship, approval, status,
affiliation, or connection that he or she does not have; goods are
original or new if they are deteriorated, altered, reconditioned,
reclaimed, or secondhand; or, goods or services are of a particular
standard, quality, grade, style or model, if they are of another; (2)
the use, in any oral or written representation, of exaggeration,
innuendo or ambiguity as to a material fact or failure to state a
material fact if such use deceives or tends to deceive; (3) disparaging
the goods, services, or business of another by false or misleading
representations of material facts; (4) offering goods or services with
intent not to sell them as offered; (5) offering goods or services with
intent not to supply reasonable expectable public demand, unless the
offer discloses to limitation of quantity; and (6) making false or
misleading representations of fact concerning the reasons for, existence
of, or amounts of price reductions, or price in comparison to prices of
competitors or one's own price at a past or future time; (7) stating
that a consumer transaction involves consumer rights, remedies or
obligations that it does not involve; (8) stating that services,
replacements or repairs are needed if they are not; and (9) falsely
stating the reasons for offering or supplying goods or services at scale
discount prices.
b. Unconscionable trade practice. Any act or practice in connection
with the sale, lease, rental or loan or in connection with the offering
for sale, lease, rental or loan of any consumer goods or services, or in
the extension of consumer credit, or in the collection of consumer debts
which unfairly takes advantage of the lack of knowledge, ability,
experience or capacity of a consumer; or results in a gross disparity
between the value received by a consumer and the price paid, to the
consumer's detriment; provided that no act or practice shall be deemed
unconscionable under this subchapter unless declared unconscionable and
described with reasonable particularity in a local law, or in a rule or
regulation promulgated by the commissioner. In promulgating such rules
and regulations the commissioner shall consider among other factors: (1)
knowledge by merchants engaging in the act or practice of the inability
of consumers to receive properly anticipated benefits from the goods or
services involved; (2) gross disparity between the price of goods or
services and their value measured by the price at which similar goods or
services are readily obtained by other consumers; (3) the fact that the
acts or practices may enable merchants to take advantage of the
inability of consumers reasonably to protect their interests by reason
of physical or mental infirmities, illiteracy or inability to understand
the language of the agreement, ignorance or lack of education, or
similar factors; (4) the degree to which terms of the transaction
require consumers to waive legal rights; (5) the degree to which terms
of the transaction require consumers to jeopardize money or property
beyond the money or property immediately at issue in the transaction;
and (6) definitions of unconscionability in statutes, regulations,
rulings and decisions of legislative, or judicial bodies in this state
or elsewhere.
c. Consumer goods, services, credit and debts. As used in section
20-700 of this subchapter and subdivisions a and b of this section,
goods, services, credit and debts which are primarily for personal,
household or family purposes.
d. Consumer. A purchaser or lessee or prospective purchaser or lessee
of the consumer goods or services or consumer credit, including a
co-obligor or surety.
e. Merchant. A seller, lessor, or creditor or any other person who
makes available either directly or indirectly, goods, services or
credit, to consumers. "Merchant" shall include manufacturers,
wholesalers and others who are responsible for any act or practice
prohibited by this subchapter.
Section 20-702
§ 20-702 Regulations. The commissioner may adopt such rules and
regulations as may be necessary to effectuate the purposes of this
subchapter, including regulations defining specific deceptive or
unconscionable trade practices. Such rules and regulations may
supplement but shall not be inconsistent with the rules, regulations and
decisions of the federal trade commission and the federal courts in
interpreting the provisions of section five (a) (1), the federal trade
commission act 15 U.S.C. §45 (a) (1), or the decisions of the courts
interpreting section three hundred fifty of the general business law and
section 2-302 of the uniform commercial code.
Section 20-703
§ 20-703 Enforcement. a. The violation of any provision of this
subchapter or of any rule or regulation promulgated thereunder, shall be
punishable upon proof thereof, by the payment of a civil penalty in the
sum of fifty dollars to three hundred and fifty dollars, to be recovered
in a civil action.
b. The knowing violation of any provision of this subchapter or of any
rule or regulation promulgated thereunder, shall be punishable upon
conviction thereof, by the payment of a civil penalty in the sum of five
hundred dollars, or as a violation for which a fine in the sum of five
hundred dollars shall be imposed, or both.
c. Upon a finding by the commissioner of repeated, multiple or
persistent violation of any provision of this subchapter or of any rule
or regulation promulgated thereunder, the city may, except as
hereinafter provided, bring an action to compel the defendant or
defendants in such action to pay in court all monies, property or other
things, or proceeds thereof, received as a result of such violations; to
direct that the amount of money or the property or other things
recovered be paid into an account established pursuant to section two
thousand six hundred one of the civil practice law and rules from which
shall be paid over to any and all persons who purchased the goods or
services during the period of violation such sum as was paid by them in
a transaction involving the prohibited acts or practices, plus any costs
incurred by such claimants in making and pursuing their complaints;
provided that if such claims exceed the sum recovered into the account,
the awards to consumers shall be prorated according to the value of each
claim proved; to direct the defendant or defendants, upon conviction, to
pay to the city the costs, and disbursements of the action and pay to
the city for the use of the commissioner the costs of his or her
investigation leading to the judgment; or if not recovered from
defendants, such costs are to be deducted by the city from the grand
recovery before distribution to the consumers; and to direct that any
money, property, or other things in the account and unclaimed by any
persons with such claims within one year from creation of the account,
be paid to the city, to be used by the commissioner for further consumer
law enforcement activities. Consumers making claims against an account
established pursuant to this subdivision shall prove their claims to the
commissioner in a manner and subject to procedures established by the
commissioner for that purpose. The procedures established in each case
for proving claims shall not be employed until approved by the court,
which shall also establish by order the minimum means by which the
commissioner shall notify potential claimants of the creation of the
account. Restitution pursuant to a judgment in an action under this
subdivision shall bar, pro tanto, the recovery of any damages in any
other action against the same defendant or defendants on account of the
same acts or practices which were the basis for such judgment, up to the
time of the judgment, by any person to whom such restitution is made.
Restitution under this subdivision shall not apply to transactions
entered into more than five years prior to commencement of an action by
the commissioner. Before instituting an action under this subdivision,
the commissioner shall give the prospective defendant written notice of
the possible action, and an opportunity to demonstrate in writing within
five days, that no repeated, multiple, or persistent violations have
occurred.
d. Whenever any person has engaged in any acts or practices which
constitute violations of any provision of this subchapter or of any rule
or regulation promulgated thereunder, the city may make application to
the supreme court for an order enjoining such acts or practices and for
an order granting a temporary or permanent injunction, restraining
order, or other order enjoining such acts or practices.
e. To establish a cause of action under this section it need not be
shown that consumers are being or were actually injured.
Section 20-704
§ 20-704 Settlements. a. In lieu of instituting or continuing an
action pursuant to this subchapter, the commissioner may accept written
assurance of discontinuance of any act or practice in violation of this
subchapter from the person or persons who have engaged in such acts or
practices. Such assurance may include a stipulation for voluntary
payment by the violator of the costs of investigation by the
commissioner and may also include a stipulation for the restitution by
the violator to consumers, of money, property or other things received
from them in connection with a violation of this subchapter, including
money necessarily expended in the course of making and pursuing a
complaint to the commissioner. All settlements shall be made a matter of
public record. If such stipulation applies to consumers who have been
affected by the violator's practices but have not yet complained to the
commissioner, the assurance must be approved by the court, which shall
direct the minimum means by which potential claimants shall be notified
of the stipulation. A consumer need not accept restitution pursuant to
such a stipulation; his or her acceptance shall bar recovery of any
other damages in any action by him or her against the defendant or
defendants on account of the same acts or practices.
b. Violation of an assurance entered into pursuant to this section
shall be treated as a violation of this subchapter and shall be subject
to all the penalties provided therefor.
Section 20-705
§ 20-705 Persons excluded from this subchapter. Nothing in this
subchapter 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 such
advertisement, except insofar as said station or publisher or printer is
guilty of deception on the sale or offering for sale of its own
services. This subchapter shall not apply to advertising agencies,
provided they are acting on information provided by their clients.
Section 20-706
§ 20-706 Permitted practices. The provisions of this subchapter shall
be construed so as to supplement the rules, regulations, and decisions
of the federal trade commission and the courts interpreting 15 U.S.C.
Sec 45 (a) (1), but the provisions of this subchapter shall in no
instance be interpreted in a manner inconsistent with the rules,
regulations and decisions of the federal trade commission and the courts
interpreting 15 U.S.C. § 45 (a) (1).