Consumer Protection Class Actions Have Important Position, Applying New York's Statutory Scheme

Consumer Protection Class Actions (continued)

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2. New York's Consumer Protection From Deceptive Acts and Practices Statutes.

New York's key consumer protection statutes are Sections 349 and 350, Chapter 20 of the General Business Law. Section 349 provides: "Deceptive 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." N.Y. Gen. Bus. L. § 349(a). Section 349(h) provides that in addition to the right of the Attorney General to seek injunctive relief and restitution under Section 349(a), any "person" injured as a result of the prohibited deceptive acts or practices "may bring an action in his own name to enjoin such unlawful act or practice," and may also seek to "recover his actual damages or fifty dollars whichever is greater." N.Y. Gen. Bus. L § 349(h). Moreover, 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." Id.

Section 350 provides: "False advertising in the conduct of any business, trade or commerce, or in the furnishing of any service in this state is hereby declared unlawful." N.Y. Gen Bus. L. § 350. The term "false advertising" means "advertising, including labeling, of a commodity," if such advertising is "misleading in a material respect." N.Y. Gen. Bus. L. § 350-a(1). Section 350-e(3) provides that any "person" injured as a result of misleading advertising "may bring an action in his own name to enjoin such unlawful act or practice," and may also seek to "recover his actual damages or $50, whichever is greater." N.Y. Gen. Bus. L. § 350-e(3). This section also provides for discretionary trebling of damages and an award of attorneys fees to the prevailing plaintiff. Id.

The elements of a Section 349 or 350 claim are (1) that the defendant engaged in an act or practice, or advertising, that was deceptive or misleading in a material respect, and (2) that the plaintiff was injured as a result. See, Berrios v. Sprint Corporation, 1998 WL. 199842 at *3 (E.D.N.Y. March 16, 1998); BNI New York LTD v. DeGanto, 675 N.Y.S.2d 752, 755 (1998); McDonald v. North Shore Yacht Sales, Inc., 513 N.Y.S.2d 590, 914 (1987). "There is no requirement that the plaintiff show specific dollar injury, or to obtain injunctive relief that there even be pecuniary injury at all. Nor is there any requirement that the deceptive practice or false advertising be intentional or even reckless or amount to fraud." N.Y. Gen. Bus. L. § 349, Practice Commentaries. "Nor does plaintiff have to prove reliance upon defendant's deceptive practices." BNI New York, 675 N.Y.S.2d at 755. See also, Small v. Lorillard Tobacco Company, 677 N.Y.S.2d 518, 519 (1st Dept. 1998) (Section 349 "does not require proof of justifiable reliance").

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