Some Consumer Protection Laws in New York
New York Consolidated Laws, General Business Law § 349:
What is it?
New York General Business Law § 349 (“Section 349”) is a law that protects consumers from deceptive acts and practices. This law gives both the Attorney General and consumers the right to take legal actions against businesses who commit unlawful acts. The law applies broadly to a number of deceptive practices and also provides subdivisions for specific unlawful acts such as consumer fraud against elderly individuals, the use of counterfeit or non-functioning airbags, and unfair practices regarding energy services.
Section 349 applies to all businesses that engage in deceptive acts and practices that are considered to be unlawful. In order to successfully sue a business, a consumer must prove three factors: 1) that the business conducted a deceptive or materially misleading act or practice, 2) that the act or practice was consumer-oriented, and 3) that the consumer suffered injuries as a result of the act or practice.
According to previous lawsuits, actions by businesses are considered to be deceptive when they affect the goods or services that are available to the consumer. Additionally, acts and practices are seen to be consumer-oriented if they affect similarly situated consumers. Finally, the consumer’s injury must be actual, but it does not necessarily have to be an economic injury.
To state a cognizable claim, a plaintiff must identify consumer-oriented misconduct, which is deceptive and materially misleading to a reasonable consumer, and which also causes actual damages.
The CFA provides a definition for consumer fraud that broadly prohibits a multitude of deceptive or unfair and unconscionable acts. Because the language of the CFA is so expansive, most transactions are covered by this law including fraud in sales, financial transactions, and contracts. Some examples of CFA violations can include lying about the terms of a warranty, using “Bait and Switch” advertising, or misrepresenting the price of a good or service. Under the CFA, consumer frauds can be categorized as affirmative misrepresentations, meaning that the business makes an untrue statement; knowing omissions, meaning that the business knowingly excludes factual information; or violations of specific consumer protection, meaning that the business violated a specific law within a variety of commercial endeavors.
The CFA contains specific regulations that businesses within particular industries like auto, health clubs, and home improvement must abide by. Those businesses that do not comply with these specific laws may be held accountable for consumer fraud. For example, in the auto industry, there are many specific rules that auto dealers must follow. Some actions that are prohibited by the CFA include lying about the terms of financing or about the vehicle’s warranty, misrepresenting the condition or price of the vehicle, tampering with the odometer or switching the VIN, or selling a vehicle that is damaged or non-functional. In the health club industry, there are many CFA regulations that pertain to health club contracts. For example, among other rules, health club contracts must be shorter than three years, must provide the consumer with the ability to cancel within three days of signing up, and must allow for cancellation under certain conditions such as death, permanent disability, or relocation.
The CFA also specifies regulations that govern home improvement contractors. These regulations include requirements that must be contained in home improvement contracts such as the start and stop dates, a description of the oncoming work, any warranties, and the total price of the project. Other regulations include acts that contractors are prohibited for doing such as asking for payment before the job is finished or providing consumers with misleading information regarding the work. Aside from these three industries, there are other industries that are specified in the CFA. Some of these industries include telemarketers, internet dating agencies, and information services. The section of the CFA that applies to telemarketers is often referred to as the New Jersey “Do Not Call” Law, which states that telemarketers cannot call a person if the person is on the national “Do Not Call” registry; that they also cannot call a person between the hours of 9 p.m. and 8 a.m.; and that they also cannot intentionally block their caller identification; amongst other things.
What damages are consumers entitled to?
Under this law, consumers can recover the greater amount between the actual amount of damages that they are owed and $50. Additionally, if the court finds that the defendant being sued willfully and knowingly violated the regulations set forth by Section 349, they can increase the damages by up to three times its original amount up to one thousand dollars. Additionally, the business may also have to pay for the consumer’s attorney’s fees and costs.
Before filing a complaint, the consumer does not have to provide the defendant with a pre-suit notice or seek a refund from them. The consumer also does not have to provide a showing of reliance.
A consumer can successfully sue a business under the CFA by proving that the business engaged in an unlawful act or practice that violated the CFA, that they suffered an ascertainable loss, and that there is a causal relationship between the loss and the consumer fraud — that is, that the loss the consumer suffered was a result of the business’ act of consumer fraud. Additionally, while an ascertainable loss does not necessarily have to mean an out-of-pocket loss, it must be quantifiable and measurable.
What is the statute of limitations?
The statute of limitations is a legal provision that sets forth the maximum time the parties involved have to initiate legal proceedings from the date of an alleged unlawful action. For claims under Section 349, the statute of limitations is three years from the day that the alleged unlawful action occurred.
Additionally, if a business has unlawfully acquired money or property from senior citizens, the senior citizens are entitled to receiving twice the amount or value of the money or property that was taken from them through unlawful means.
Are there exemptions?
Section 349 does not apply to television or radio stations or publishers or printers of printed advertising like newspapers and magazines.
New York Consolidated Laws, General Business Law § 350: What Is It?
New York General Business Law § 350 (“Section 350”) is a consumer protection law that focuses specifically on the use of false advertisement. Like Section 349, it provides both consumers and the Attorney General the ability to take legal action. Under this law, “false advertising” can refer to the use of misleading information or the misrepresentation of information. Some examples of false advertisement can include falsely representing the price of a product or failing to include relevant information on a job posting. Section 350 also includes specific notices regarding the use of the title “doctor” and the use of senior specific designations in advertisements.
To state a cognizable claim, a plaintiff must identify consumer-oriented misconduct, which is deceptive and materially misleading to a reasonable consumer, and which also causes actual damages.
What damages are consumers entitled to?
Under Section 350, consumers are entitled to receiving damages of $500 or their actual damages, whichever is greater. Additionally, they may have the opportunity to collect up to three times the amount of their actual damages, up to $10,000, if the court finds that the business knowingly and willingly committed actions that violated Section 350. The defendant could also have to cover the plaintiff’s attorney’s fees and costs.
What is the statute of limitations?
The statute of limitations is a legal provision that sets forth the maximum time the parties involved have to initiate legal proceedings from the date of an alleged unlawful action. For claims under Section 350, the statute of limitations is three years from the day that the alleged unlawful action occurred.
Do businesses have to pay a civil penalty?
Any person, firm, corporation or association or agent or employee who engages in any of the acts or practices that are unlawful pursuant to the statute are liable to a civil penalty of not more than $5,000.00 dollars for each violation, which shall accrue to the state of New York and may be recovered in a civil action brought by the attorney general.
Are there exemptions?
Like Section 349, Section 350 also does not apply to television and radio stations or publishers and printers.
23 NYCRR 1: What Is It?
23 NYCRR 1 is a debt collection regulation that provides consumers with rights against third-party debt collectors. Under this law, debt collectors are required to provide consumers with specific information either in their initial communications, or within five days of the initial contact. This information includes 1) the consumer’s rights under the Fair Debt Collection Practices Act (“FDCPA”) and the actions that debt collectors are prohibited from engaging in, 2) the types of income that may be protected from collection, 3) information about the debt such as the name of the original creditor and the amount that is allegedly owed, and 4) information and disclosures regarding the statute of limitations of the debt.
This regulation also provides rights for consumers who wish to dispute a debt. Consumers can dispute a debt either orally or in writing and they can request validation of the debt. Debt collectors must provide consumers with this information within 60 days of the request and they cannot legally collect a debt until they provide the required information.
23 NYCRR 1 also contains requirements regarding notices for payment schedules and regulations regarding communication via electronic mail.
Can a consumer sue a debt collector under 23 NYCRR 1?
No, this regulation does not provide consumers with private cause to action, meaning that consumers cannot sue businesses that violate 23 NYCRR 1. However, this regulation provides the state with the ability to collect a civil penalty of $5,000 per offense from offending businesses. Additionally, it is likely that a business that has violated 23 NYCRR 1 has also committed a violation of the FDCPA, and consumers are able to sue businesses that violate this federal law. The FDCPA’s statute of limitations is one year from the day that the alleged unlawful action occurred.
This regulation also provides rights for consumers who wish to dispute a debt. Consumers can dispute a debt either orally or in writing and they can request validation of the debt. Debt collectors must provide consumers with this information within 60 days of the request and they cannot legally collect a debt until they provide the required information.
23 NYCRR 1 also contains requirements regarding notices for payment schedules and regulations regarding communication via electronic mail.
What is prohibited?
23 NYCRR 1 does not apply to original creditors who are collecting their own debt without the help of a third-party agent. This regulation also does not apply to the collection of business debts or money judgments.
The statute of limitations period for debt in New York:
The statute of limitations period for most types of debt in New York is six years. The statute of limitations period for debt is the maximum amount of time that a creditor can have to initiate legal proceedings against a consumer for nonpayment of a debt resulting from a default on the debt. In New York, the date of default is defined as 30 days after the date of the last payment. Different types of debt can have different statute of limitations periods. In New York, the statute of limitations period for auto loan debt is four years, it is six years for credit card debt, it is six years for medical debt, and it is six years for mortgage debt. If a consumer promises to make a payment on the alleged debt, or makes even a small payment, it could potentially restart the clock on the statute of limitations.
Some of the places that a consumer can look to for help or answers to questions:
The laws and statutes discussed above can change. So, in the state that a consumer resides in, a consumer protection agency, the Office of the Attorney General, and/or a consumer protection attorney who is licensed in a consumer’s respective state can help a consumer in getting help, up to date information and interpretations, and/or with determining the answers to their questions in regard to the aforementioned laws. The Consumer Financial Protection Bureau can assist as well.