CONSUMER LAW 2005 UPDATE

The Judge's Guide to Federal and New York State Consumer Protection Statutes

July 1, 2005
See also:
CONSUMER LAW 2008 UPDATE
CONSUMER LAW 2007 UPDATE
CONSUMER LAW 2006 UPDATE
CONSUMER LAW 2003 UPDATE
CONSUMER LAW 2001 UPDATE
CONSUMER LAW 2000 UPDATE

Causes of action alleging the violation of one or more Federal and/or New York State consumer protection statutes are frequently asserted in civil cases. This annual paper prepared for New York State Judges, Principal Law Clerks, Arbitrators, Librarians and other Court personnel discusses those consumer protection statutes most frequently used in New York State courts.

In addition to reporting new consumer cases, this paper discusses two new substantive and procedural topics. First, within the last five years there has been a dramatic increase in the use of mandatory arbitration and forum selection clauses in consumer contracts, particularly, in agreements entered into over the Internet. The enforceability of such clauses raises several issues addressed herein. Second, Article 9 of the C.P.L.R. is New York's class action statute and provides consumers with similar claims an opportunity to aggregate their claims into one lawsuit. The scope of consumer class actions including which types of consumer claims are certifiable under Article 9 of the C.P.L.R. is discussed herein as well.

Table Of Contents

1] Table of N.Y.S. Consumer Protection Statutes

2] Table of Federal Consumer Protection Statutes

3] Deceptive and Misleading Business Practices

        [A] Threshold of Deception

        [B] Scope; Time To File; Accrual; Independent Claim

        [C] Territorial Limitations

        [D] Types Of Goods & Services Covered By G.B.L. 349

            1] Apartment Rentals

            2] Attorney Advertising

            3] Aupair Services

            4] Arbitrator's Award; Refusal To Pay

            5] Auctions; Bid Rigging

            6] Automotive; Disclosure of Contract Terms

            6.1] Baldness Products

            7] Budget Planning

            8] Cars

            9] Cell Phones

            9.1] Checking Accounts

            10] Clothing Sales

            11] Credit Cards

            12] Customer Information

            13] Defective Automobile Ignition Switches

            14] Defective Brake Shoes

            15] Defective Dishwashers

            16] Door-To-Door Sales

            17] Educational Services

            18] Employee Scholarship Programs

             19] Excessive & Unlawful Bail Bond Fees

             20] Exhibitions & Conferences

            21] Furniture Sales

            22] Hair Loss Treatment

             23] Home Heating Oil Price Increases

             24] Home Inspections

             25] In Vitro Fertilizations

            26] Insurance

            27] Internet Marketing & Services

            28] " Knock-Off " Telephone Numbers

            29] Lasik Eye Surgery

            29.1] Layaway Plans

            30] Liquidated Damages Clause

            31] Loan Applications

            32] Mislabeling

            32.1] Monopolistic Business Practices

            33] Mortgages

            34] Motor Oil Changes

            35] Movers, Household Goods

            36] Professional Networking

            37] Privacy, Sale Of Confidential Information

            38] Pyramid Schemes

            39] Real Estate Sales

            40] Securities

            41] Sports Nutrition Products

            42] Termite Inspections

            43] Tobacco Products

            44] Transportation Services, E-Z Passes

            45] Travel Services

            46] TV Repair Shops

            47] Wedding Singers

4] False Advertising

5] Cars, Cars, Cars

         [A] Automotive Parts Warranty

        [B] Automotive Repair Shop Duties

        [C] Implied Warranty of Merchantability & Non-Conforming Goods

        [D] Magnuson-Moss Warranty Act & Leased Vehicles

        [E] New Car Contract Disclosure Rule

        [F] New Car Lemon Law

        [G] Used Car Dealer Licensing

        [H] Used Car Extended Warranty

        [I] Used Car Lemon Law

        [J] Warranty Of Serviceability

        [K] Repossession & Sale of Vehicle

6] Homes

        [A] Home Improvement Frauds

         [B] Home Improvement Contractor Licensing

        [C] New Home Implied Warranty Of Merchantability

        [D] Movers, Household Goods

        [E] Real Estate Broker Licenses

7] Loans & Credit

        [A] Fair Credit Reporting

        [B] Home Ownership and Equity Protection

        [C] Real Estate Settlements

        [D] Regulation Z

        [E] Truth In Lending

        [F] Mortgage Related Documents; Fees

8] Overcoats Lost At Restaurants

9] Pyramid Schemes

10] Real Property, Apartments & Coops

        [A] Real Property Condition Disclosure

        [B] Real Property Warranty Of Habitability

        [C] Multiple Dwelling Law

11] Retail Sales & Leases

        [A] Consumer Transaction Documents, Type Size

        [A-1] Dating Services

        [B] Dog And Cat Sales

        [C] Door To Door Sales

        [C-1] Health Clubs

        [D] Lease Renewals

        [E] Licensing To Do Business

            [1] Home Improvement Contractors

            [2] Used Car Dealers

            [3] Other Licensed Businesses

        [F] Merchandise Delivery Dates

        [F-1] Merchandise Layaway Plans

        [G-1] Retail Installment Sales

        [H] Rental Purchase Agreements

        [I] Warranty Of Merchantability

12] Telemarketing

        [A] Federal Telephone Consumer Protection Act

        [B] N.Y.S. Telemarketing And Consumer Fraud And Abuse Prevention Act

        [C] Telemarketing Devices Restrictions

        [D] Telemarketing Sales Call Registry

13] Litigation Issues

        [A] Mandatory Arbitration Clauses

        [B] Forum Selection Clauses

        [C] Consumer Class Actions

            1] Types of Consumer Class Action Claims

                  a] Baby Makers

                  b] Bail Bonds

                  c] Books

                  d] Cars, Cars, Cars

                  e] CDs & DVDs

                  f] Computers, Software & Internet Services

                  g] Dental Products

                  h] Drugs

                  i] Entertainment

                  j] Food & Drink

                  k] Gambling

                  l] Grain Silos

                  m] Hospitals

                  n] Household Goods

                  o] Insurance

                  p] Loans/Credit Cards/Debit Cards

                  q] Mortgages

                  r] Newspaper Subscriptions

                  s] Nursing Homes

                  t] Personal Products

                  u] Privacy

                  v] Shippers

                  w] Tax Advice

                  x] Telephones, Cell Phones & Faxes

                  y] Tobacco Products

                  z] Toys

                  aa] Travel

                  bb] TV & Cable

            2] Consumer Law Theories of Liability

            3] Common Law Claims

                  a] Breach of Contract

                  b] Quasi Contractual Claims

                  c] Unjust Enrichment

                  d] Money Had And Received

                  e] Bad Faith Dealings

                  f] Breach of Implied Covenant of Good Faith

                  g] Unconscionability

                  h] Economic Duress

                  I] Penalties

                  j] Breach of Warranty

                  k] Fraud

                  l] Breach of Fiduciary Duty

                  m] Negligence

            4] Statutory Theories of Liability

                  a] G.B.L. 349, 350

                  b] G.B.L. 340

                  c] Telephone Consumer Protection Act

                  d] Public Health Law

                  e] Tenant Security Deposit

                  f] Privacy

                  g] No Fault Insurance

                  h] R.P.L. 274

            5] The Class Action Fairness Act of 2005

1] Table Of New York State Consumer Protection Statutes

            [A] G.B.L. 349 [ Deceptive & Misleading Business Practices ];

            [B] G.B.L. 350 [ False Advertising ];

            [C] G.B.L. 198-a [ New Car Lemon Law ];

            [D] G.B.L. 198-b [ Used Car Lemon Law ];

            [E] G.B.L. 201 [ Overcoats Lost At Restaurants ];

            [F] G.B.L. 218-a [ Retail Refund Policies ];

            [G] G.B.L. 359-fff [ Pyramid Schemes ];

            [G-1] G.B.L. 394-c [ Dating Services ];

            [G-2] G.B.L. 396-aa [ Unsolicited Telefacsimile Advertising ]

            [H] G.B.L. 396-p(5) [ New Car Purchase Contract Disclosure Requirements ];

            [H-1] G.B.L. 396-t [ Merchandise Layaway Plans ];

            [I] G.B.L. 396-u [ Merchandise Delivery Dates ];

            [J] G.B.L. 399-p [ Restrictions On Automated Telemarketing Devices ];

            [K] G.B.L. 399-pp [ Telemarketing And Consumer Fraud And Abuse Prevention Act ];

            [L] G.B.L. 399-z [ No Telemarketing Sales Call Registry ];

            [M] G.B.L. 617(2)(a) [ New Parts Warranties ];

            [M-1] G.B.L. 620 et seq [ Health Club Services ];

            [N] G.B.L. 752 et seq [ Sale Of Dogs And Cats ];

            [O] G.B.L. 771, 772 [ Home Improvement Contracts & Frauds ];

            [O-1] G.B.L. 777 [ New Home Implied Warranty Of Merchantability ];

            [P] C.P.L.R. 3015(e) [ Licensing To Do Business ];

            [Q] C.P.L.R. 4544 [ Consumer Transaction Documents Must Be In 8 Point Type ];

            [R] M.D.L. 78 [ Duty To Keep Premises In Good Repair ];

            [R-1] P.P.L. 401 et seq. [ Retail Installment Sales Act ];

            [S] P.P.L. 425 et seq [ Door-To-Door Sales ];

            [T] P.P.L. 500 et seq [ Rental Purchase Agreements ];

            [U] R.P.L. 235-b [ Warranty Of Habitability ];

            [V] R.P.L. 274-a(2)(a) [ Mortgage Related Fees ];

            [V-1] R.P.L. 441(b) [ Real Estate Broker Licenses ];

            [W] R.P.L. 462 [ Property Condition Disclosure Act ];

            [X] U.C.C. 2-314, 2-318 [ Warranty Of Merchantability ];

            [Y] U.C.C. 2-601 [ Nonconforming Goods; Right of Rescission ];

            [Y-1] U.C.C. 2-608 [ Delivery of Non-Conforming Goods ];

            [Y-2] U.C.C. 610, 611 [ Repossession & Sale Of Vehicle ];

            [Z] V.T.L. 417 [ Warranty Of Serviceability ];

            [AA] 17 N.Y.C.R.R. 814.7 [ Duties & Rights of Movers of Household Goods ];

            [BB] G.O.L. 5-901 [ limitations on enforceability of automatic lease renewal provisions ].

2] Table Of Federal Consumer Protection Statutes

            [A] 12 U.S.C. 2601 [ Real Estate Settlement Procedures Act ( RESPA ) ];

            [B] 15 U.S.C. 1601 et seq [ Truth In Lending Act ];

            [C] 15 U.S.C. 1639 [ Home Ownerships and Equity Protection Act of 1994 ( HOEPA )];

            [D] 15 U.S.C. 2301 et seq [ Magnuson-Moss Warranty Act ];

            [E] 47 U.S.C. 227 [ Federal Telephone Consumer Protection Act Of 1991 ];

            [F] 12 C.F.R. 226.1 et seq [ Regulation Z ].

3] Deceptive & Misleading Business Practices: G.B.L. 349

The most popular of New York State's many consumer protection statutes is General Business Law 349 [ " G.B.L. 349 " ] which prohibits deceptive and misleading business practices.[2] G.B.L. 349 allows consumers and even corporations[3] to sue for $50.00 or actual damages which may be trebled up to $1,000.00 upon a finding of a " wil(ful) or know(ing) violat(ion)".[4] An additional civil penalty not to exceed $10,000 may be imposed for a violation if the " conduct is perpetrated against one or more elderly persons ".[5] G.B.L. 349 may be pre-empted by other consumer protection statutes.[6] Attorneys fees and costs may be recovered as well. As long as the deceptive business practice has " a broad impact on consumers at large"[7] and constitutes " consumer-oriented conduct "[8] proving a violation of G.B.L. 349 is straight forward. As stated in Small v. Lorillard Tobacco Co.[9]
"To state a claim...a plaintiff must allege that the defendant has engaged ' in an act or practice that is deceptive or misleading in a material way and that plaintiff has been injured by reason thereof '...Intent to defraud and justifiable reliance by the plaintiff are not elements of the statutory claim...However, proof that ' a material deceptive act or practice causes actual, although not necessarily pecuniary harm ' is required to impose compensatory damages ".
A well pled G.B.L. 349 claim need not particularize the deceptive practice but should, at a minimum, allege
" that ( defendants ) engaged in consumer-related activity that effected consumers at large, utilized tactics that were deceptive and misleading in material respects, disseminated advertising through various mediums, that was false in material respects, and injury resulting from ( defendants' ) business practices and advertising " ) [ Gabbay v. Mandel ][10].
The complaint must, of course, allege actual injury arising from the alleged violations of G.B.L. 349 [11] [ Small v. Lorillard Tobacco Co. [12]( in order to make out a G.B.L. 349 claim the complaint must allege that a deceptive act was directed towards consumers and caused actual injury );
Solomon v. Bell Atlantic Corp. [13]( " A deceptive act or practice is not ' the mere invention of a scheme or marketing strategy, but the actual misrepresentation or omission to a consumer '...by which the consumer is ' caused actual, although not necessarily pecuniary, harm...'" );
Sokoloff v. Town Sports International, Inc. [14]( " Such claim impermissibly ' sets forth deception as both act and injury ' " );
Donahue v. Ferolito, Vultaggio & Sons[15]( " ( plaintiff ) failed to establish any actual damages resulting from defendants' alleged deceptive practices and false advertising on the labels " );
Levine v. Philip Morris Inc.[16] ( " plaintiff must offer evidence that defendant made a misrepresentation...which actually deceived...and which caused her injury " );
Han v. Hertz Corp. [17] ( " proof that a material deceptive act or practice caused actual-albeit not necessarily pecuniary-harm is required to impose compensatory damages " )].

             [A]Threshold Of Deception

Initially G.B.L. 349 had a low threshold for a finding of deception, i.e., misleading and deceptive acts directed to
" the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions " [ Guggenheimer v. Ginzburg ] [18] .
Recently, the Court of Appeals raised the threshold to those misleading and deceptive acts " likely to mislead a reasonable consumer acting reasonably under the circumstances " [ Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A. [19] ].

            [B] Scope; Time To File; Accrual; Non-Residents; Independent Claim

G.B.L. 349 applies to a broad spectrum of goods and services [ Karlin v. IVF America [20] ( GBL 349...

" on (its) face appl(ies) to virtually all economic activity and (its) application has been correspondingly broad...The reach of (this) statute ' provides needed authority to cope with the numerous, ever-changing types of false and deceptive business practices which plague consumers in our State '" )].
G.B.L. 349 is broader than common law fraud [ Gaidon v. Guardian Life Insurance Company [21] ( " encompasses a significantly wider range of deceptive business practices that were never previously condemned by decisional law " ); State of New York v. Feldman [22] ( G.B.L. 349 " was intended to be broadly applicable, extending far beyond the reach of common law fraud " )]. Hence, G.B.L. 349 claims are governed by a three-year period of limitations [ C.P.L.R. 241(2) ]. G.B.L. 349 claims accrue when the consumer " has been injured by a deceptive act [23]" . G.B.L. 349 does not apply to the claims of non-residents who did not enter into contracts in New York State [ Goshen v. Mutual Life Insurance Company [24] ] or received services in New York State [ Scott v. Bell Atlantic Corp. ].[25] And, lastly, a G.B.L. 349 claim " does not need to be based on an independent private right of action " [ Farino v. Jiffy Lube International, Inc. ].[26]

            [C] Territorial Limitations

In Goshen v. The Mutual Life Ins. Co. [27][ consumers of vanishing premium insurance policies ] and Scott v. Bell Atlantic Corp. ,[28] [ consumers of Digital Subscriber Line ( DSL ) [29] Internet services ], the Court of Appeals, not wishing to " tread on the ability of other states to regulate their own markets and enforce their own consumer protection laws " and seeking to avoid " nationwide, if not global application " , held that G.B.L. 349 requires that " the transaction in which the consumer is deceived must occur in New York ". Following this latest interpretation [30] of the " territorial reach " of G.B.L. 349 the Court in Truschel v. Juno Online Services, Inc.[31] , a consumer class action alleging misrepresentations by a New York based Internet service provider, dismissed the G.B.L. 349 claim because the named representative entered into the Internet contract in Arizona. Notwithstanding the Goshen territorial limitation, the Court in Peck v. AT&T Corp .[32], a G.B.L. 349 consumer class action involving cell phone service which
" improperly credited calls causing ( the class ) to lose the benefit of weekday minutes included in their calling plans ",
approved a proposed settlement on behalf of residents in New York, New Jersey and Connecticut
[ " it would be a waste of judicial resources to require a different [ G.B.L. 349 ] class action in each state...where, as here, the defendants have marketed their plans on a regional ( basis ) " ].

            [D] Types Of Goods & Services Covered By G.B.L. 349

The types of goods and services to which G.B.L. 349 applies include the following:

                  [1] Apartment Rentals [ Bartolomeo v. Runco[33] and Anilesh v. Williams [34] ( renting illegal apartments ); Yochim v. McGrath[35] ( renting illegal sublets )];

                  [2] Attorney Advertising [ People v. Law Offices of Andrew F. Capoccia[36] ( " The alleged conduct the instant lawsuit seeks to enjoin and punish is false, deceptive and fraudulent advertising practices " ); Aponte v. Raychuk[37] ( deceptive attorney advertisements [ " Divorce, Low Fee, Possible 10 Days, Green Card " ] violated Administrative Code of City of New York 20-70C et seq )];

                  [3] Aupair Services [ Oxman v. Amoroso[38] ( misrepresenting the qualifications of an abusive aupair to care for handicapped children )];

                  [4] Arbitrator's Award; Refusal To Pay [ Lipscomb v. Manfredi Motors [39] ( auto dealer's refusal to pay arbitrator's award under G.B.L. 198-b ( Used Car Lemon Law ) is unfair and deceptive business practice under G.B.L. 349 )];

                  [5] Auctions; Bid Rigging [ State of New York v. Feldman[40] ( scheme to manipulate public stamp auctions comes " within the purview of ( G.B.L. 349 ) " )];

                  [6] Automotive; Contract Disclosure Rule [ Levitsky v. SG Hylan Motors, Inc .[41] ( violation of G.B.L. 396-p " and the failure to adequately disclose the costs of the passive alarm and extended warranty constitute a deceptive action ( per se violation of G.B.L. 349 ); Spielzinger v. S.G. Hylan Motors Corp. [42] ( failure to disclose the true cost of " Home Care Warranty " and " Passive Alarm ", failure to comply with provisions of G.B.L. 396-p and G.B.L. 396-q; per se violations of G.B.L. 349 )];

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                  [6-a] Baldness Products [ Karlin v. IVF [43] ( reference to unpublished decision applying G.B.L. 349 to products for treatment of balding and baldness );

Mountz v. Global Vision Products, Inc. [44] ( " Avacor, a hair loss treatment extensively advertised on television...as the modern day equivalent of the sales pitch of a snake oil salesman "; allegations of misrepresentations of " no known side effects ' of Avacor is refuted by documented minoxidil side effects " )];

                  [7] Budget Planning [ People v. Trescha Corp. [45] ( company misrepresented itself as a budget planner which

" involves debt consolidation and...negotiation by the budget planner of reduced interest rates with creditors and the cancellation of the credit cards by the debtors...the debtor agrees to periodically send a lump sum payment to the budget planner who distributes specific amounts to the debtor's creditors " )];

                  [8] Cars [ People v. Condor Pontiac [46] ( used car dealer violated G.B.L. 349 and V.T.L. 417 in failing to disclose that used car was

" previously used principally as a rental vehicle "; " In addition ( dealer violated ) 15 NYCRR 78.10(d), 78.11(12),(13)...fraudulently and/or illegally forged the signature of one customer, altered the purchase agreements of four customers after providing copies to them, and transferred retail certificates of sale to twelve (12) purchasers which did not contain odometer readings...( Also ) violated 15 NYCRR 78.13(a) by failing to give the purchaser a copy of the purchase agreement in 70 instances ( all of these are deceptive acts ) " );
Spielzinger v. S.G. Hylan Motors Corp. [47] ( failure to disclose the true cost of " Home Care Warranty " and " Passive Alarm ", failure to comply with provisions of G.B.L. 396-p and G.B.L. 396-q; per se violation of G.B.L. 349 )];

                  [9] Cell Phones [ Naevus International, Inc. v. AT&T Corp.[48] , ( wireless phone subscribers seek damages for " frequent dropped calls, inability to make or receive calls and failure to obtain credit for calls that were involuntarily disconnected " )];

                  [9-1] Checking Accounts [ Sherry v. Citibank [49]

( " plaintiff stated ( G.B.L. 349, 350 claims ) for manner in which defendant applied finance charges for its checking plus ' accounts since sales literature could easily lead potential customer to reasonable belief that interest would stop accruing once he made deposit to his checking account sufficient to pay off amount due on credit line " )].

                  [10] Clothing Sales [ Baker v. Burlington Coat Factory [50] ( refusing to refund purchase price in cash for defective and shedding fake fur )];

                  [11] Credit Cards [ People v. Telehublink [51]

( " telemarketers told prospective customers that they were pre-approved for a credit card and they could receive a low-interest credit card for an advance fee of approximately $220. Instead of a credit card, however, consumers who paid the fee received credit card applications, discount coupons, a merchandise catalog and a credit repaid manual " );
Sims v. First Consumers National Bank ,[52]
( " The gist of plaintiffs' deceptive practices claim is that the typeface and location of the fee disclosures, combined with high-pressure advertising, amounted to consumer conduct that was deceptive or misleading " );
Broder v. MBNA Corporation[53] ( credit card company misrepresented the application of its low introductory annual percentage rate to cash advances )];

                  [12] Customer Information [ Anonymous v. CVS Corp. [54] ( CVS acquired the customer files from 350 independent pharmacies without customers' consent; the

" practice of intentionally declining to give customers notice of an impending transfer of their critical prescription information in order to increase the value of that information appears to be deceptive " )];

                  [13] Defective Automobile Ignition Switches [ Ritchie v. Empire Ford Sales, Inc. [55] ( dealer liable for damages to used car that burned up 4 years after sale )];

                  [14] Defective Brake Shoes [ Giarrantano v. Midas Muffler [56]( Midas Muffler fails to honor brake shoe warranty )];

                  [15] Defective Dishwashers [ People v. General Electric Co., Inc [57]( misrepresentations " made by...GE to the effect that certain defective dishwashers it manufactured were not repairable " was deceptive under G.B.L. 349 )];

                  [16] Door-To-Door Sales [ New York Environmental Resources v. Franklin [58],( misrepresented and grossly overpriced water purification system ); Rossi v. 21st Century Concepts, Inc. [59] ( selling misrepresented and overpriced pots and pans )];

                  [17] Educational Services [ Andre v. Pace University [60] ( failing to deliver computer programming course for beginners ); Brown v. Hambric [61] ( failure to deliver travel agent education program )];

                  [18] Employee Scholarship Programs[ Cambridge v. Telemarketing Concepts, Inc. [62] ( refusal to honor agreement to provide scholarship to employee )];

                  [19] Excessive & Unlawful Bail Bond Fees [ McKinnon v. International Fidelity Insurance Co. [63]( misrepresentation of expenses in securing bail bonds )];

                  [20] Exhibitions and Conferences [ Sharknet Inc. v. Telemarketing, NY Inc. [64]( misrepresenting length of and number of persons attending Internet exhibition )];

                  [21] Furniture Sales [ Petrello v. Winks Furniture [65] ( misrepresenting a sofa as being covered in Ultrasuede HP and protected by a 5 year warranty ); Walker v. Winks Furniture [66] ( falsely promising to deliver furniture within one week ); Filpo v. Credit Express Furniture Inc. [67] ( failing to inform Spanish speaking consumers of a three day cancellation period ); Colon v. Rent-A-Center, Inc. [68]( rent-to-own furniture; " an overly inflated cash price " for purchase may violate G.B.L. 349 )];

                  [22] Hair Loss Treatment [ Mountz v. Global Vision Products, Inc. [69] ( " marketing techniques ( portrayed ) as the modern day equivalent of the sales pitch of a snake oil salesman ", alleged misrepresentations of " no known side effects " without revealing documented side effects " which include cardiac changes, visual disturbances, vomiting, facial swelling and exacerbation of hair loss "; G.B.L. 349 claim stated for New York resident " deceived in New York " )];

                  [23] Home Heating Oil; Unilateral Price Increase [ State v. Wilco Energy Corp. [70] ( home heating oil company's " conduct constituted a deceptive practice. It offered a fixed-price contract and then refused to comply with its most material term-an agreed-upon price for heating oil " )];

                  [24] Home Inspections [ Ricciardi v. Frank d/b/a/ InspectAmerica Enginerring,P.C. [71]( civil engineer liable for failing to discover wet basement ) ];

                  [25] In Vitro Fertilization [ Karlin v. IVF America, Inc. [72] ( misrepresentations of in vitro fertilization rates of success )];                   [26] Insurance [ Gaidon v. Guardian Life Insurance Co. & Goshen v. Mutual Life Insurance Co. [73] ( misrepresentations that " out-of-pocket premium payments ( for life insurance policies ) would vanish within a stated period of time " ); Monter v. Massachusetts Mutual Life Ins. Co.[74] ( misrepresentations with respect to the terms " Flexible Premium Variable Life Insurance Policy " ); Skibinsky v. State Farm Fire and Casualty Co. [75] ( misrepresentation of the coverage of a " builder's risk " insurance policy ); Makuch v. New York Central Mutual Fire Ins. Co. [76] ( " violation of ( G.B.L. 349 for disclaiming ) coverage under a homeowner's policy for damage caused when a falling tree struck plaintiff's home " ); Brenkus v. Metropolitan Life Ins. Co. [77] ( misrepresentations by insurance agent as to amount of life insurance coverage ); Acquista v. New York Life Ins. Co. [78]

( " allegation that the insurer makes a practice of inordinately delaying and then denying a claim without reference to its viability "" may be said to fall within the parameters of an unfair or deceptive practice " );
Rubinoff v. U.S. Capitol Insurance Co. [79] ( automobile insurance company fails to provide timely defense to insured ); Makastchian v. Oxford Health Plans, Inc. [80] ( practice of terminating health insurance policies without providing 30 days notice violated terms of policy and was a deceptive business practice because subscribers may have believed they had health insurance when coverage had already been canceled )];

                  [27] Internet Marketing & Services

[ Zurakov v. Register.Com, Inc.[81] ( " Given plaintiff's claim that the essence of his contract with defendant was to establish his exclusive use and control over the domain name ' Laborzionist.org ' and that defendant's usurpation of that right and use of the name after registering it for plaintiff defeats the very purpose of the contract, plaintiff sufficiently alleged that defendant's failure to disclose its policy of placing newly registered domain names on the ' Coming Soon ' page was material "
and constitutes a deceptive act under G.B.L. 349 );
People v. Network Associates, Inc. [82]( " Petitioner argues that the use of the words ' rules and regulations ' in the restrictive clause ( prohibiting testing and publication of test results of effectiveness of McAfee antivirus and firewall software ) is designed to mislead consumers by leading them to believe that some rules and regulations outside ( the restrictive clause ) exist under state or federal law prohibiting consumers from publishing reviews and the results of benchmark tests...the language is ( also ) deceptive because it may mislead consumers to believe that such clause is enforceable under the lease agreement, when in fact it is not...as a result consumers may be deceived into abandoning their right to publish reviews and results of benchmark tests " );
People v. Lipsitz [83] ( failing to deliver purchased magazine subscriptions ); Scott v. Bell Atlantic Corp. , [84] ( misrepresented Digital Subscriber Line ( DSL ) [85] Internet services )];

                  [28] " Knock-Off " Telephone Numbers

[ Drizin v. Sprint Corp. [86] ( " defendants' admitted practice of maintaining numerous toll-free call service numbers identical, but for one digit, to the toll-free call service numbers of competitor long-distance telephone service providers. This practice generates what is called ' fat-fingers ' business, i.e., business occasioned by the misdialing of the intended customers of defendant's competing long-distance service providers. Those customers, seeking to make long-distance telephone calls, are, by reason of their dialing errors and defendants' many ' knock-off ' numbers, unwittingly placed in contact with defendant providers rather than their intended service providers and it is alleged that, for the most part, they are not advised of this circumstance prior to completion of their long-distance connections and the imposition of charges in excess of those they would have paid had they utilized their intended providers. These allegations set forth a deceptive and injurious business practice affecting numerous consumers ( under G.B.L. 349 ) " )];

                  [29] Lasik Eye Surgery [ Gabbay v. Mandel [87]( medical malpractice and deceptive advertising arising from lasik eye surgery )];

                  [29-1] Layaway Plans [ Amiekumo v. Vanbro Motors, Inc. [88]( failure to deliver vehicle purchased on layaway plan and comply with statutory disclosure requirements; a violation of G.B.L. 396-t is a per se violation of G.B.L. 349 ];

                  [30] Liquidated Damages Clause [ Morgan Services, Inc. v. Episcopal Church Home & Affiliates Life Care Community, Inc .[89] ( it is deceptive for seller to enter

" into contracts knowing that it will eventually fail to supply conforming goods and that, when the customer complains and subsequently attempts to terminate the contract ( seller ) uses the liquidated damages clause of the contract as a threat either to force the customer to accept the non-conforming goods or to settle the lawsuit " )];

                  [31] Loan Applications [ Dunn v. Northgate Ford, Inc. [90] ( automobile dealer completes and submits loan application to finance company and misrepresents teenage customer's ability to repay loan which resulted in default and sale of vehicle )];

                  [32] Mislabeling [ Lewis v. Al DiDonna [91]( pet dog dies from overdose of prescription drug, Feldene, mislabeled " 1 pill twice daily ' when should have been " one pill every other day " )];

                  [32-a] Monopolistic Business Practices

[ Cox v. Microsoft Corporation [92]( " allegations that Microsoft engaged in purposeful, deceptive monopolistic business practices; including entering into secret agreements with computer manufacturers and distributors to inhibit competition and technological development and creating an ' applications barrier ' in its Windows software that, unbeknownst to consumers, rejected competitors' Intel-compatible PC operating systems, and that such practices resulted in artificially inflated prices for defendant's products and denial of consumer access to competitors' innovations, services and products " )];

                  [33] Mortgages

[ Kidd v. Delta Funding Corp. [93]( " The defendants failed to prove that their act of charging illegal processing fees to over 20,000 customers, and their failure to notify the plaintiffs of the existence and terms of the settlement agreement, were not materially deceptive or misleading " );
Walts v. First Union Mortgage Corp .[94] ( consumers induced to pay for private mortgage insurance beyond requirements under New York Insurance Law 6503 ); Negrin v. Norwest Mortgage, Inc. [95]( mortgagors desirous of paying off mortgages charged illegal and unwarranted fax and recording fees ); Trang v. HSBC Mortgage Corp., USA [96]( $15.00 special handling/fax fee for a faxed copy of mortgage payoff statement violates R.P.L. 274-a(2)(a) which prohibits charges for mortgage related documents and is deceptive as well )];

                  [34] Motor Oil Changes [ Farino v. Jiffy Lube International, Inc. [97] ( an " Environmental Surcharge " of $.80 to dispose of used motor oil after every automobile oil change may be deceptive since under Environmental Conservation Law 23-2307 Jiffy was required to accept used motor oil at no charge )];

                  [35] Movers; Household Goods [ Goretsky v. Price Movers, Inc . [98] ( " failure to unload the household goods and hold them ' hostage ' is a deceptive practice under " G.B.L. 349 )];

                  [36] Professional Networking [ BNI New York Ltd. v. DeSanto [99]( enforcing an unconscionable membership fee promissory note ) ];

                  [37] Privacy [ Anonymous v. CVS Corp .[100] ( sale of confidential patient information by pharmacy to a third party is " an actionable deceptive practice " under G.B.L. 349 ); Smith v. Chase Manhattan Bank [101] ( same )];

                  [38] Pyramid Schemes [ C.T.V. Inc. v. Curlen [102] ( selling bogus " Beat The System Program " certificates ); Brown v. Hambric [103]( selling misrepresented instant travel agent credentials and educational services )];

                  [39] Real Estate Sales [ Gutterman v. Romano Real Estate [104] ( misrepresenting that a house with a septic tank was connected to a city sewer system ); Board of Mgrs, of Bayberry Greens Condominium v. Bayberry Greens Associates [105] ( deceptive advertisement and sale of condominium units ); B.S.L. One Owners Corp. v. Key Intl. Mfg. Inc.[106] ( deceptive sale of shares in a cooperative corporation ); Breakwaters Townhouses Ass'n. v. Breakwaters of Buffalo, Inc. [107]( condominium units ); Latiuk v. Faber Const. Co. [108]( deceptive design and construction of home ); Polonetsky v. Better Homes Depot, Inc. [109]( N.Y.C. Administrative Code 20-700 et seq ( Consumer Protection Law ) applies to business of buying foreclosed homes and refurbishing and reselling them as residential properties; misrepresentations that recommended attorneys were approved by Federal Housing Authority deceptive )];

                  [40] Securities [ Not Covered By G.B.L. 349 ][ Gray v. Seaboard Securities, Inc. [110] ( G.B.L. 349 provides no relief for consumers alleging injury arising from the deceptive or misleading acts of a trading company ); Fesseha v. TD Waterhouse Investor Services, Inc. [111]

( " Finally, section 349 does not apply here because, in addition to being a highly regulated industry, investments are not consumer goods " );
Berger v. E*Trade Group, Inc. [112]
( " Securities instruments, brokerage accounts and services ancillary to the purchase of securities have been held to be outside the scope of the section " );
But see Scalp & Blade, Inc. v. Advest, Inc. [113] ( G.B.L. 349 covers securities transactions )];

                  [41] Sports Nutrition Products [ Morelli v. Weider Nutrition Group, Inc. [114] ,( manufacturer of Steel Bars, a high-protein nutrition bar, misrepresented the amount of fat, vitamins, minerals and sodium therein )];

                  [42] Termite Inspections [ Anunziatta v. Orkin Exterminating Co., Inc. [115] ( misrepresentations of full and complete inspections of house and that there were no inaccessible areas are misleading and deceptive )];

                  [43] Tobacco Products [ Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris Inc.[116], ( tobacco companies' scheme to distort body of public knowledge concerning the risks of smoking, knowing public would act on companies' statements and omissions was deceptive and misleading )];

                  [44] Transportation Services, E-Z Passes [ Kinkopf v. Triborough Bridge & Tunnel Authority [117] ( E-Z pass contract fails to reveal necessary information to customers wishing to make a claim and " on its face constitutes a deceptive practice " )];

                  [45] Travel Services [ Meachum v. Outdoor World Corp. [118] ( misrepresenting availability and quality of vacation campgrounds; Vallery v. Bermuda Star Line, Inc.[119] ( misrepresented cruise ); Pellegrini v. Landmark Travel Group [120] ( refundability of tour operator tickets misrepresented ); People v. P.U. Travel, Inc. [121] ( Attorney General charges travel agency with fraudulent and deceptive business practices in failing to deliver flights to Spain or refunds )];

                  [46] TV Repair Shops [ Tarantola v. Becktronix, Ltd .[122] ( TV repair shop's violation of

" Rules of the City of New York ( 6 RCNY 2-261 et seq )...that certain procedures be followed when a licensed dealer receives an electronic or home appliance for repair...constitutes a deceptive practice under ( G.B.L. 349 )" )];

                  [47] Wedding Singers [ Bridget Griffin-Amiel v. Frank Terris Orchestras [123]( the bait and switch [124] of a

" 40-something crooner " for the " 20-something " Paul Rich " who promised to deliver a lively mix of pop hits, rhythm-and-blues and disco classics " ) ].
For broken engagements and disputes over wedding preparations, generally, see DeFina v. Scott. [125]

4] False Advertising: G.B.L. 350

Consumers who rely upon false advertising and purchase defective goods or services may claim a violation of G.B.L. 350 [ Scott v. Bell Atlantic Corp. [126] ( defective ' high speed ' Internet services falsely advertised ); Card v. Chase Manhattan Bank [127] ( bank misrepresented that its LifePlus Credit Insurance plan would pay off credit card balances were the user to become unemployed )]. G.B.L. 350 prohibits false advertising which
" means advertising, including labeling, of a commodity...if such advertising is misleading in a material respect...( covers )....representations made by statement, word, design, device, sound...but also... advertising ( which ) fails to reveal facts material " .[128]
G.B.L. 350 covers a broad spectrum of misconduct
[ Karlin v. IVF America [129] ( " ( this statute ) on ( its ) face appl(ies) to virtually all economic activity and ( its ) application has been correspondingly broad " )].
Proof of a violation of G.B.L. 350 is simple, i.e., " the mere falsity of the advertising content is sufficient as a basis for the false advertising charge " [ People v. Lipsitz [130] ( magazine salesman violated G.B.L. 350;
" ( the ) ( defendant's ) business practice is generally ' no magazine, no service, no refunds " although exactly the contrary is promised " ].
However, unlike a claim under G.B.L. 349 plaintiffs must prove reliance on false advertising to establish a violation of G.B.L. 350 [ Pelman v. McDonald's Corp. [131] ( G.B.L. 350 requires proof of reliance );
Gale v. International Business Machines Corp. [132] ( " Reliance is not an element of a claim under ( G.B.L. 349 )...claims under ( G.B.L. 350 )...do require proof of reliance " )].

5] Cars, Cars, Cars

There are a variety of consumer protection statutes available to purchasers and lessees of automobiles, new and used. A comprehensive review of five of these statutes [ GBL 198-b[133] ( Used Car Lemon Law ), express warranty [134], implied warranty of merchantability [135] ( U.C.C. 2-314, 2-318 ), Vehicle and Traffic Law [ V&T ] 417, strict products liability [136]] appears in Ritchie v. Empire Ford Sales, Inc. [137], a case involving a used 1990 Ford Escort which burned up 4 years after being purchased because of a defective ignition switch. A comprehensive review of two other statutes [ GBL 198-a ( New Car Lemon Law ) and GBL 396-p ( New Car Contract Disclosure Rules )] appears in Borys v. Scarsdale Ford, Inc. [138], a case involving a new Ford Crown Victoria, the hood, trunk and both quarter panels of which had been negligently repainted prior to sale.

            [A] Automotive Parts Warranty: G.B.L. 617(2)(a)

" The extended warranty and new parts warranty business generates extraordinary profits for the retailers of cars, trucks and automotive parts and for repair shops. It has been estimated that no more than 20% of the people who buy warranties ever use them... Of the 20% that actually try to use their warranties... ( some ) soon discover that the real costs can easily exceed the initial cost of the warranty certificate " .[139]
In Giarratano v. Midas Muffler [140], Midas would not honor its brake shoe warranty unless the consumer agreed to pay for additional repairs found necessary after a required inspection of the brake system. G.B.L. 617(2)(a) protects consumers who purchase new parts or new parts' warranties from breakage or a failure to honor the terms and conditions of a warranty
[ " If a part does not conform to the warranty...the initial seller shall make repairs as are necessary to correct the nonconformity " ].[141]
A violation of G.B.L. 617(2)(a) is a per se violation of G.B.L. 349 which provides for treble damages, attorneys fees and costs .[142]

            [B] Auto Repair Shop Duty To Perform Quality Repairs

Service stations should perform quality repairs. Quality repairs are those repairs held by those having knowledge and expertise in the automotive field to be necessary to bring a motor vehicle to its premalfunction or predamage condition [ Welch v. Exxon Superior Service Center [143]( consumer sought to recover $821.75 from service station for failing to make proper repairs to vehicle;
" While the defendant's repair shop was required by law to perform quality repairs, the fact that the claimant drove her vehicle without incident for over a year following the repairs indicates that the vehicle had been returned to its premalfunction condition following the repairs by the defendant, as required " );
Shalit v. State of New York [144]( conflict in findings in Small Claims Court in auto repair case with findings of Administrative Law Judge under VTL 398 ).

            [C] Implied Warranty Of Merchantability: U.C.C. 2-314, 2-318; Delivery Of Non-Conforming Goods: U.C.C. 2-608

Both new and used cars carry with them an implied warranty of merchantability [ U.C.C. 2-314, 2-318 ][ Denny v. Ford Motor Company ].[145] Although broader in scope than the Used Car Lemon Law the implied warranty of merchantability does have its limits, i.e., it is time barred four years after delivery [ U.C.C. 2-725; Hull v. Moore Mobile Homes Stebra, Inc .,[146] ( defective mobile home; claim time barred )] and the dealer may disclaim liability under such a warranty [ U.C.C. 2-316 ] if such a disclaimer is written and conspicuous [ Natale v. Martin Volkswagen, Inc. [147]( disclaimer not conspicuous )]. A knowing misrepresentation of the history of a used vehicle may state a claim under U.C.C. 2-608 for the delivery of non-conforming goods [ Urquhart v. Philbor Motors, Inc. [148]]

            [D] Magnuson-Moss Warranty Act & Leased Vehicles: 15 U.S.C. 2301 et seq

In Tarantino v. DaimlerChrysler Corp. [149], DiCinto v. Daimler Chrysler Corp. [150]and Carter-Wright v. DaimlerChrysler Corp. [151] , it was held that the Magnuson-Moss Warranty Act, 15 U.S.C. 2301 et seq. applies to automobile lease transactions. However, in DiCintio v. DaimlerChrysler Corp. [152], the Court of Appeals held that the Magnuson-Moss Warranty Act does not apply to automobile leases.

            [E] New Car Contract Disclosure Rule: G.B.L. 396-p

In Borys v. Scarsdale Ford, Inc.[153] , a consumer demanded a refund or a new car after discovering that a new Ford Crown Victoria had several repainted sections. The Court discussed liability under G.B.L. 198-a ( New Car Lemon Law ) and G.B.L. 396-p(5) ( Contract Disclosure Requirements )

[ " gives consumers statutory rescission rights ' in cases where dealers fail to provide the required notice of prior damage and repair(s)' ( with a ) ' retail value in excess of five percent of the lesser of manufacture's or distributor's suggested retail price '" ].
In Borys the Court dismissed the complaint finding (1) that under G.B.L. 198-a the consumer must give the dealer an opportunity to cure the defect and (2) that under G.B.L. 396-p(5) Small Claims Court would not have jurisdiction [ money damages of $3,000 ] to force " defendant to give...a new Crown Victoria or a full refund, minus appropriate deductions for use ".

In Levitsky v. SG Hylan Motors, Inc. [154] a car dealer overcharged a customer for a 2003 Honda Pilot and violated G.B.L. 396-p by failing to disclose the " estimated delivery date and place of delivery...on the contract of sale ". The Court found that the violation of G.B.L. 396-p
" and the failure to adequately disclose the costs of the passive alarm and extended warranty constitutes a deceptive act ( in violation of G.B.L. 349 ). Damages included " $2,251.50, the $2,301.50 which he overpaid, less the cost of the warranty of $50.00 "
and punitive damages under G.B.L. 349(h) bringing the award up to $3,000.00, the jurisdictional limit of Small Claims Court.

And in Spielzinger v. S.G. Hylan Motors Corp. [155]( failure to disclose the true cost of " Home Care Warranty " and " Passive Alarm ", failure to comply with provisions of G.B.L. 396-p ( confusing terms and conditions, failure to notify consumer of right to cancel ) and G.B.L. 396-q ( dealer failed to sign sales contract ); per se violations of G.B.L. 349 with damages awarded of $734.00 ( overcharge for warranty ) and $1,000 statutory damages ).

            [F] New Car Lemon Law: G.B.L. 198-a

New York State's New Car Lemon Law [ G.B.L. 198-a ] provides that
" If the same problem cannot be repaired after four or more attempts; Or if your car is out of service to repair a problem for a total of thirty days during the warranty period; Or if the manufacturer or its agent refuses to repair a substantial defect within twenty days of receipt of notice sent by you...Then you are entitled to a comparable car or refund of the purchase price " [ Borys v. Scarsdale Ford, Inc. [156] ].
Before commencing a lawsuit seeking to enforce the New Car Lemon Law the dealer must be given an opportunity to cure the defect [ Chrysler Motors Corp. v. Schachner [157] ( dealer must be afforded a reasonable number of attempts to cure defect )]. The consumer may utilize the statutory repair presumption after four unsuccessful repair attempts after which the defect is still present .[158] However, the defect need not be present at the time of arbitration hearing .[159] See, generally, Kucher v. DaimlerChrycler Corp . [160]( judgment for defendant )]. Attorneys fees and costs may be awarded to the prevailing consumer [ DaimlerChrysler Corp. v. Karman [161]( $5,554.35 in attorneys fees and costs of $300.00 awarded )].

            [G] Used Car Dealer Licensing: C.P.L.R. 3015(e)

In B & L Auto Group, Inc. v. Zilog [162] a used car dealer sued a customer to collect the $2,500.00 balance due on the sale of a used car. Because the dealer failed to have a Second Hand Automobile Dealer's license pursuant to New York City Department of Consumer Affairs when the car was sold the Court refused to enforce the sales contract pursuant to C.P.L.R. 3015(e).

            [H] Used Car Extended Warranty

In Barthley v. Autostar Funding LLC [163] the consumer purchased a 1993 Lexus with over 110,000 miles and an extended warranty on the vehicle. After the vehicle experienced engine problems and a worn cam shaft was replaced at a cost of $1,733.66 the consumer made a claim under the extended warranty. The claim was rejected by the warranty company " on the basis that a worn camshaft was a pre-existing condition ". The Court found this rejection unconscionable and awarded damages to cover the cost of the new camshaft.

" In effect, the warranty company has chosen to warranty a ten year old car with over 110,000 miles on the odometer and then rejects a timely claim on the warranty on the basis that the car engine's internal parts are old and worn ".

            [I] Used Car Lemon Law: G.B.L. 198-b

New York State's Used Car Lemon Law [ G.B.L. 198-b ] provides limited warranty protection for ninety days or 4,000 miles, whichever comes first, for vehicles with odometer readings of less than 36,000 [ Cintron v. Tony Royal Quality Used Cars, Inc. [164] ( defective 1978 Chevy Malibu returned within thirty days and full refund awarded )]. Used car dealers must be given an opportunity to cure a defect before the consumer may commence a lawsuit enforcing his or her rights under the Used Car Lemon Law [ Milan v. Yonkers Avenue Dodge, Inc. [165] ( dealer must have opportunity to cure defects in used 1992 Plymouth Sundance ) ]. The Used Car Lemon Law does not preempt other consumer protection statutes [ Armstrong v. Boyce ] [166], does not apply to used cars with more than 100,000 miles when purchased [167] and has been applied to used vehicles with coolant leaks [ Fortune v. Scott Ford, Inc. [168] ], malfunctions in the steering and front end mechanism [ Jandreau v. LaVigne [169]], stalling and engine knocking [ Ireland v. JL's Auto Sales, Inc. [170] ] and vibrations [ Williams v. Planet Motor Car, Inc. [171] ] . An arbitrator's award may be challenged in a special proceeding [ C.P.L.R. 7502 ] [ Lipscomb v. Manfredi Motors [172] ]. Recoverable damages include the return of the purchase price and repair and diagnostic costs [ Williams v. Planet Motor Car, Inc. [173] ].

            [J] Warranty Of Serviceability: V.T.L. 417

Used car buyers are also protected by Vehicle and Traffic Law 417 [ " V&T 417 " ] which requires used car dealers to inspect vehicles and deliver a certificate to buyers stating that the vehicle is in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery. V&T 417 is a non-waiveable, nondisclaimable, indefinite, warranty of serviceability which has been liberally construed [ Barilla v. Gunn Buick Cadillac-GNC, Inc.[174] ; Ritchie v. Empire Ford Sales, Inc. [175] ( dealer liable for Ford Escort that burns up 4 years after purchase ); People v. Condor Pontiac [176] ( used car dealer violated G.B.L. 349 and V.T.L. 417 in failing to disclose that used car was
" previously used principally as a rental vehicle "; " In addition ( dealer violated ) 15 NYCRR 78.10(d), 78.11(12), (13)...fraudulently and/or illegally forged the signature of one customer, altered the purchase agreements of four customers after providing copies to them, and transferred retail certificates of sale to twelve (12) purchasers which did not contain odometer readings...( Also ) violated 15 NYCRR 78.13(a) by failing to give the purchaser a copy of the purchase agreement in 70 instances ( all of these are deceptive acts ) "];
recoverable damages include the return of the purchase price and repair and diagnostic costs [ Williams v. Planet Motor Car, Inc. [177] ].

            [K] Repossession & Sale Of Vehicle

In Coxall v. Clover Commercials Corp.[178] , the consumer purchased a
" 1991 model Lexus automobile, executing a Security Agreement/Retail Installment Contract. The ' cash price ' on the Contract was $8,100.00 against which the Coxalls made a ' cash downpayment ' of $3,798.25 ".
After the consumers stopped making payments because of the vehicle experienced mechanical difficulties the Lexus was repossessed and sold. In doing so, however, the secured party failed to comply with U.C.C. 9-611(b) which requires " ' a reasonable authenticated notification of disposition ' to the debtor " and U.C.C 9-610(b) ( " the sale must be ' commercially reasonable ' " ). Statutory damages awarded offset by defendant's breach of contract damages.

6] Homes

            [A] Home Improvement Contracts & Frauds: G.B.L. 771, 772

G.B.L. 771 requires that home improvement contracts be in writing and executed by both parties. A failure to sign a home improvement contract means it can not be enforced in a breach of contract action [ Precision Foundations v. Ives [179]]. G.B.L. 772 provides homeowners victimized by unscrupulous home improvement contractors [ who make " false or fraudulent written statements " ] with statutory damages of $500.00, reasonable attorneys fees and actual damages [ Udezeh v. A+Plus Construction Co. [180] ( statutory damages of $500.00, attorneys fees of $1,500.00 and actual damages of $3,500.00 awarded ); Garan v. Don & Walt Sutton Builders, Inc. [181]( construction of a new, custom home falls within the coverage of G.B.L. 777(2) and not G.B.L. 777-a(4) )].

            [B] Home Improvement Contractor Licensing: C.P.L.R. 3015(e)

Homeowners often hire home improvement contractors to repair or improve their homes or property. Home improvement contractors must, at least, be licensed by the Department of Consumer Affairs of New York City, Westchester County, Suffolk County, Rockland County, Putnam County and Nassau County if they are to perform services in those Counties [ C.P.L.R. 3015(e) ]. Should the home improvement contractor be unlicenced he will be unable to sue the homeowner for non-payment for services rendered [ Tri-State General Remodeling Contractors, Inc v. Inderdai Baijnauth [182] ( salesmen do not have to have a separate license );
Routier v. Waldeck [183]( " The Home Improvement Business provisions...were enacted to safeguard and protect consumers against fraudulent practices and inferior work by those who would hold themselves out as home improvement contractors " );
Cudahy v. Cohen [184] ( unlicenced home improvement contractor unable to sue homeowner in Small Claims Courts for unpaid bills ); Moonstar Contractors, Inc. v. Katsir [185]( license of sub-contractor can not be used by general contractor to meet licensing requirements )]. Obtaining a license during the performance of the contract may be sufficient [ Mandioc Developers, Inc. v. Millstone [186] ] while obtaining a license after performance of the contract is not sufficient
[ B&F Bldg. Corp. V. Liebig [187] ( " The legislative purpose...was not to strengthen contractor's rights, but to benefit consumers by shifting the burden from the homeowner to the contractor to establish that the contractor is licensed " )].

            [C] New Home Implied Warranty Of Merchantability : G.B.L. 777

G.B.L. 777 provides, among other things, for a statutory housing merchant warranty [188] for the sale of a new house which for The statute also requires timely notice from aggrieved consumers [ Rosen v. Watermill Development Corp. [189]( notice adequately alleged in complaint ); Taggart v. Martano[190] ( failure to allege compliance with notice requirements ( G.B.L. 777-a(4)(a) ) fatal to claim for breach of implied warranty ); Testa v. Liberatore [191] ( " prior to bringing suit ( plaintiff must ) provide defendant with a written notice of a warranty claim for breach of the housing merchant implied warranty " ); Randazzo v. Abram Zylberberg [192]( defendant waived right " to receive written notice pursuant to ( G.B.L. 777-1(4)(a) " )].

            [D] Movers, Household Goods: 17 N.Y.C.R.R. 814.7

In Goretsky v. Price Movers, Inc [193] claimant asserted that a mover hired to transport her household goods
" did not start at time promised, did not pick-up the items in the order she wanted and when she objected ( the mover ) refused to remover her belongings unless they were paid in full ".
The Court noted the absence of effective regulations of movers.
" The biggest complaint is that movers refuse to unload the household goods unless they are paid...The current system is, in effect, extortion where customers sign documents that they are accepting delivery without complaint solely to get their belongings back. This situation is unconscionable ".
The Court found a violation of 17 N.Y.C.R.R. 814.7 when the movers " refused to unload the entire shipment ", violations of G.B.L. 349 in " that the failure to unload the household goods and hold them ' hostage ' is a deceptive practice " and a failure to disclose relevant information in the contract and awarded statutory damages of $50.00.

            [E] Real Estate Brokers' Licenses: R.P.L. 441(b)

In Olukotun v. Reiff[194] the plaintiff wanted to purchase a legal two family home but was directed to a one family with an illegal apartment. After refusing to purchase the misrepresented two family home she demanded reimbursement of the $400 cost of the home inspection. Finding that the real estate broker violated the competency provisions of R.P.L. 441(1)(b) ( a real estate broker should have " competency to transact the business of real estate broker in such a manner as to safeguard the interests of the public " ), the Court awarded damages of $400 with interest, costs and disbursements.

7] Loans & Credit

            [A] Fair Credit Reporting Act: 15 U.S.C. 1681 et seq

            [B] Home Ownership and Equity Protection: 15 U.S.C. 1639

            [C] Real Estate Settlement Procedures Act: 12 U.S.C. 2601

            [D] Regulation Z: 12 C.F.R. 226.1 et seq.

            [E] Truth In Lending Act: 15 U.S.C. 1601 et seq

Consumers may sue for a violation of several federal statutes which seek to protect borrowers, e.g., including the

            [F] Fees For Mortgage Related Documents: R.P.L. 274-a(2)(a)

In Dougherty v. North Ford Bank [203] the Court found that the lender had violated R.P.L. 274-a(2)(a) which prohibits the charging of fees for " for providing mortgage related documents " by charging consumer a $5.00 " Facsimile Fee " and a $25.00 " Quote Fee ". See also: Negrin v. Norwest Mortgage[204] .

8] Overcoats Lost At Restaurants: G.B.L. 201

" For over 100 years consumers have been eating out at restaurants, paying for their meals and on occasion leaving without their simple cloth overcoats...mink coats...mink jackets...racoon coats...Russian sable fur coats...leather coats and, of course, cashmere coats..." .[20]
In DiMarzo v. Terrace View [206] , restaurant personnel encouraged a patron to remove his overcoat and then refused to respond to a claim after the overcoat disappeared from their coatroom. In response to a consumer claim arising from a lost overcoat the restaurant may seek to limit its liability to $200.00 as provided for in General Business Law 201 [ " GBL 201 " ]. However, a failure to comply with the strict requirements of GBL 201
[ "' as to property deposited by...patrons in the...checkroom of any...restaurant, the delivery of which is evidenced by a check or receipt therefor and for which no fee or charge is exacted...'" [207] ]
allows the consumer to recover actual damages upon proof of a bailment and/or negligence [208] . The enforceability of liability limiting clauses for lost clothing will often depend upon adequacy of notice [ Tannenbaum v. New York Dry Cleaning, Inc. [209] ( clause on dry cleaning claim ticket limiting liability for lost or damaged clothing to $20.00 void for lack of adequate notice ); White v. Burlington Coat Factory [210] ( $100 liability limitation in storage receipt enforced for $1,000 ripped and damaged beaver coat )].

9] Pyramid Schemes: G.B.L. 359-fff

"' ( a pyramid scheme ) is one in which a participant pays money...and in return receives (1) the right to sell products, and (2) the right to earn rewards for recruiting other participants into the scheme '" . [211]
Pyramid schemes are sham money making schemes which prey upon consumers eager for quick riches. General Business Law 359-fff [ " GBL 359-fff " ] prohibits " chain distributor schemes " or pyramid schemes voiding the contracts upon which they are based. Pyramid schemes were used in Brown v. Hambric [212] to sell travel agent education programs
[ " There is nothing new ' about NU-Concepts. It is an old scheme, simply, repackaged for a new audience of gullible consumers mesmerized by the glamour of travel industry and hungry for free or reduced cost travel services " ]
and in C.T.V., Inc. v. Curlen [213] , to sell bogus " Beat The System Program " certificates. While, at least, one Court has found that only the Attorney General may enforce a violation of GBL 359-fff , other Courts have found that GBL 359-fff [214] gives consumers a private right of action [215] , a violation of which also constitutes a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs [216] .

10] Real Property, Apartments & Co-Ops

            [A] Real Property Condition Disclosure Act: R.P.L. 462-465

With some exceptions [ Real Property Law 463 ] Real Property Law 462 [ " RPL " ] requires sellers of residential real property to file a disclosure statement detailing known defects. Sellers are not required to undertake an inspection but must answer 48 questions about the condition of the real property. A failure to file such a disclosure statement allows the buyer to receive a $500 credit against the agreed upon price at closing [ RPL 465 ] . A seller who files such a disclosure statement

" shall be liable only for a willful failure to perform the requirements of this article. For such a wilfull failure, the seller shall be liable for the actual damages suffered by the buyer in addition to any other existing equitable or statutory relief " [ RPL 465(2) ].
For an excellent discussion of this statute see Malach v. Chuang [217]( improper completion of disclosure form regarding water damage caused by swimming pool; only monetary remedy available is $500 credit to purchaser; by accepting disclosure form with answers " unknown " purchasers waived claims of defects )].

            [B] Warranty Of Habitability: R.P.L. 235-b

Tenants in Spatz v. Axelrod Management Co. [218] and coop owners in Seecharin v. Radford Court Apartment Corp. [219]brought actions for damages done to their apartments by the negligence of landlords, managing agents or others, i.e., water damage from external or internal sources. Such a claim may invoke Real Property Law 235-b [ " RPL 235-b " ] , a statutory warranty of habitability in every residential lease " that the premises...are fit for human habitation ". RPL 235-b
" has provided consumers with a powerful remedy to encourage landlords to maintain apartments in a decent, livable condition "[220]
and may be used affirmatively in a claim for property damage[221] or as a defense in a landlord's action for unpaid rent[222] . Recoverable damages may include apartment repairs, loss of personal property and discomfort and disruption[223] .

            [C] Duty To Keep Rental Premises In Good Repair: M.D.L. 78.

In Goode v. Bay Towers Apartments Corp. [224] the tenant sought damages from his landlord arising from burst water pipes under Multiple Dwelling Law 78 which provides that " Every multiple dwelling...shall be kept in good repair ". The Court applied the doctrine of res ipsa loquitur and awarded damages of $264.87 for damaged sneakers and clothing, $319.22 for bedding and $214.98 for a Playstation and joystick.

11] Retail Sales & Leases

            [A] Consumer Contract Type Size: C.P.L.R. 4544

C.P.L.R. 4544 provides that
" any printed contract... involving a consumer transaction...where the print is not clear and legible or is less that eight points in depth...May not be received in evidence in any trial ".
C.P.L.R. 4544 has been applied in consumer cases involving property stolen from a health club locker [225] , car rental agreements [226] , home improvement contracts [227] , insurance policies [228] , dry cleaning contracts[229] and financial brokerage agreements[230] . However, this consumer protection statute is not available if the consumer also relies upon the same size type[231] and does not apply to cruise passenger contracts which are, typically, in smaller type size and are governed by maritime law [ see e.g., Lerner v. Karageorgis Lines, Inc. [232] ( maritime law preempts state consumer protection statute regarding type size; cruise passenger contracts may be in 4 point type ) and may not apply if it conflicts with federal Regulation Z
[ Sims v. First Consumers National Bank [233] ( " Regulation Z does not preempt state consumer protection laws completely but requires that consumer disclosures be ' clearly and conspicuously in writing ' ( 12 CFR 226.5(a)(1)) and, considering type size and placement, this is often a question of fact " )].

            [A-1] Dating Services: G.B.L. 394-c

G.B.L. 394-c applies to a social referral service which charges a
" fee for providing matching of members of the opposite sex, by use of computer or any other means, for the purpose of dating and general social contact "
and provides for disclosures, a three day cancellation requirement, a Dating Service Consumer Bill of Rights, a private right of action for individuals seeking actual damages or $50.00 which ever is greater and licensing in cities of 1 million residents [ Grossman v. MatchNet [234] ( plaintiff failed to allege that
" she sustained any ' actual harm ' from defendant's failure to include provisions mandated by the Dating Services Law. Plaintiff has not alleged that she ever sought to cancel or suspend her subscription ( or that any rights were denied her ) " ].

            [B] Dogs And Cat Sales: G.B.L. 752

Disputes involving pet animals are often brought in Small Claims Courts [ see e.g., Mongelli v. Cabral[235]
( " The plaintiffs ...and the defendants...are exotic bird lovers. It is their passion for exotic birds, particularly, for Peaches, a five year old white Cockatoo, which is at the heart of this controversy" );
Mathew v. Klinger [236]
( " Cookie was a much loved Pekinese who swallowed a chicken bone and died seven days later. Could Cookie's life have been saved had the defendant Veterinarians discovered the presence of the chicken bone sooner? " );
O'Brien v. Exotic Pet Warehouse, Inc. [237] ( pet store negligently clipped the wings of Bogey, an African Grey Parrot, who flew away ); Nardi v. Gonzalez [238]
( " Bianca and Pepe are diminutive, curly coated Bichon Frises ( who were viciously attacked by ) Ace...a large 5 year old German Shepherd weighing 110 pounds " );
Mercurio v. Weber [239] ( two dogs burned with hair dryer by dog groomer, one dies and one survives, damages discussed ); Lewis v. Al DiDonna [240] ( pet dog dies from overdose of prescription drug, Feldene, mislabeled " 1 pill twice daily ' when should have been " one pill every other day " )].

General Business Law 752 et seq applies to the sale of dogs and cats by pet dealers and gives consumers rescission rights fourteen days after purchase if a licensed veterinarian

" certifies such animal to be unfit for purchase due to illness, a congenital malformation which adversely affects the health of the animal, or the presence of symptoms of a contagious or infectious disease " [ GBL 753 ].
The consumer may In addition, pet dealers are required to have animals inspected by a veterinarian prior to sale [ GBL 753-a ] and provide consumers with necessary information [ GBL 753-b, 753-c ]. Several Courts have applied GBL 752 et seq in Small Claims Courts [ see e.g., Fuentes v. United Pet Supply, Inc. [241] ( miniature pinscher puppy diagnosed with a luxating patella in left rear leg; claims under GBL 753 must be filed within fourteen days; claim valid under UCC 2-324 ); Saxton v. Pets Warehouse, Inc. [242] ( consumer's claims for unhealthy dog are not limited to GBL 753(1) but include breach of implied warranty of merchantability under UCC 2-714 ); Smith v. Tate [243] ( five cases involving sick German Shepherds ); Sacco v. Tate [244] ( buyers of sick dog could not recover under GBL 753 because they failed to have dog examined by licensed veterinarian ); Roberts v. Melendez [245] ( claim against Le Petit Puppy arising from death of dachshund puppy; contract " clearly outlines the remedies available " and does not violate GBL 753 ]. Pets have also been the subject of aggravated cruelty pursuant to Agriculture and Markets Law 353-a
[ People v. Garcia [246] ( " Earlier on that day, defendant had picked up a 10-gallon fish tank containing three pet goldfish belonging to Ms. Martinez's three children and hurled it into a 47-inch television screen, smashing the television screen and the fish tank...Defendant then called nine-year old Juan into the room and said ' Hey, Juan, want to something cool? ' Defendant then proceeded to crush under the heel of his shoe one of the three goldfish writhing on the floor " )].

            [C]Door-To-Door Sales: G.B.L. 425-431

" Some manufacturers...favor door-to-door sales ( because ) ...the selling price may be several times greater than...in a more competitive environment (and)...consumers are less defensive...in their own homes and...are, especially, susceptible to high pressure sales tactics " .[247]
Personal Property Law [ " PPL " ] 425-431
"' afford(s) consumers a ' cooling-off' period to cancel contracts which are entered into as a result of high pressure door-to-door sales tactics'" .[248]
PPL 428 provides consumers with rescission rights should a salesman fail to complete a Notice Of Cancellation form on the back of the contract. PPL 428 has been used by consumers in New York Environmental Resources v. Franklin[249] ( misrepresented and grossly overpriced water purification system ), Rossi v. 21st Century Concepts, Inc. [250] [ misrepresented pots and pans costing $200.00 each ], Kozlowski v. Sears [251] [ vinyl windows hard to open, did not lock properly and leaked ] and in Filpo v. Credit Express Furniture Inc . [252] [ unauthorized design and fabric color changes and defects in overpriced furniture ]. Rescission is also appropriate if the Notice of Cancellation form is not in Spanish for Spanish speaking consumers .[253] A failure to " comply with the disclosure requirements of PPL 428 regarding cancellation and refund rights " is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs .[254] In addition PPL 429(3) provides for an award of attorneys fees.

            [C-1] Health Club Services: G.B.L. 620-631

The purpose of G.B.L. 620-631 is to " safeguard the public and the ethical health club industry against deception and financial hardship " by requiring financial security such as bonds, contract restrictions, disclosures, cancellation rights, prohibition of deceptive acts and a private right of action for individuals seeking actual damages which may be trebled plus an award of attorneys fees [ Faer v. Verticle Fitness & Racquet Club, Ltd.[255] ( misrepresentations of location, extent, size of facilities; full contract price minus use recoverable ); Nadoff v. Club Central [256]( restitution of membership fees charged after expiration of one year membership where contract provided for renewal without 36 month statutory limitation )].

            [D] Lease Renewal Provisions: G.O.L. 5-901

In Andin International Inc. v. Matrix Funding Corp. [257]the Court held that the automatic renewal provision in a computer lease was ineffective under G.O.L. 5-901 because the lessor failed to notify lessee of lessee's obligation to provide notice of intention not to renew. In addition, the provision may be unconscionable ( under terms of lease unless lessee
" is willing to meet the price unilaterally set for the purchase of the equipment, ( lessee ) will be bound for a successive 12-month period to renting the equipment. This clause, which, in essence, creates a perpetual obligation, is sufficiently one-sided and imbalanced so that it might be found to be unconscionable ( under Utah law ) " )].

            [E] Licensing To Do Business: C.P.L.R. 3015(e)

C.P.L.R. 3015(e) provides, in part, that
" Where the plaintiff's cause of action against a consumer arises from the plaintiff's conduct of a business which is required by state or local law to be licensed...the complaint shall allege...that plaintiff is duly licensed...The failure of the plaintiff to comply...will permit the defendant ( consumer ) to move for dismissal ".
This rule has been applied to

                  [1] Home Improvement Contractors [ Tri-State General Remodeling Contractors, Inc v. Inderdai Baijnauth[258] ( salesmen do not have to have a separate license );

Routier v. Waldeck [259] ( " The Home Improvement Business provisions...were enacted to safeguard and protect consumers against fraudulent practices and inferior work by those who would hold themselves out as home improvement contractors " );
Power Cooling, Inc. v. Wassong ,[260] ( N.Y.C. Administrative Code 20-386[2] requiring the licensing of home improvement contractors does not apply to the installation of room air-conditioners ); Falconieri v. Wolf [261]( home improvement statute, County Law 863.313 applies to barn renovations ); Cudahy v. Cohen [262]( unlicenced home improvement contractor unable to sue homeowner in Small Claims Courts for unpaid bills ); Moonstar Contractors, Inc. v. Katsir [263]( license of sub-contractor can not be used by general contractor to meet licensing requirements ). Obtaining a license during the performance of the contract may be sufficient ( Mandioc Developers, Inc. v. Millstone [264]) while obtaining a license after performance of the contract is not sufficient
( B&F Bldg. Corp. V. Liebig [265]( " The legislative purpose...was not to strengthen contractor's rights, but to benefit consumers by shifting the burden from the homeowner to the contractor to establish that the contractor is licensed " )];

                  [2] Used Car Dealers [ B & L Auto Group, Inc. v. Zilog [266] ( used car dealer's claim against consumer for balance of payment for used car of $2,500.00 dismissed for a failure to have a Second Hand Automobile Dealer's license pursuant to New York City Department of Consumer Affairs Regulation when the car was sold )];

                  [3] Other Licensed Businesses

[ B & L Auto Group, Inc. v. Zilog [267] ( " The legal consequences of failing to maintain a required license are well known. It is well settled that not being licensed to practice in a given field which requires a license precludes recovery for the services performed " either pursuant to contract or in quantum merit...This bar against recovery applies to...architects and engineers, car services, plumbers, sidewalk vendors and all other businesses...that are required by law to be licensed " )].

            [F] Merchandise Delivery Dates: G.B.L. 396-u

" In order to induce a sale furniture and appliance store salesman often misrepresent the quality, origin, price, terms of payment and delivery date of ordered merchandise " .[268]
In Walker v. Winks Furniture [269] , a salesman promised delivery of new furniture within one week and then refused to return the consumer's purchase price when she canceled two weeks later unless she paid a 20% cancellation penalty. GBL 396-u protects consumers from unscrupulous salesmen who promise that merchandise will be delivered by specific date when, in fact, it is not. A violation of GBL 396-u [ failing to disclose an estimated delivery date in writing when the order is taken [ GBL 396-u(2) ], failing to advise of a new delivery date and giving the consumer the opportunity to cancel [ GBL 396-u(2)(b) ], failing to honor the consumer's election to cancel without imposing a cancellation penalty [ GBL 396-u(s)) ], failing to make a full refund within two weeks of a demand without imposing a cancellation penalty [ GBL 396-u(2)(d) ]] allows the consumer to rescind the purchase contract without incurring a cancellation penalty .[270] A violation of GBL 396-u is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs .[271] In addition, GBL 396-u(7) provides for a trebling of damages upon a showing of a wilful violation of the statute .[272]

In Dweyer v. Montalbano's Pool & Patio Center, Inc [273] a furniture store failed to timely deliver two of six purchased chairs. The Court found that the delayed furniture was not " custom-made " and that the store violated G.B.L. 396-u(2) in failing to fill in an " ' estimated delivery date ' on the form as required by statute ", failing to give notice of the delay and advising the customer of her right to cancel under G.B.L. 396-u(2)(b). The Court awarded G.B.L. 396-u damages of $287.12 for the two replacement chairs, trebled to $861.36 under G.B.L. 396-u(7). In addition the Court granted rescission under U.C.C. 2-601 [ " if the goods or tender of delivery fail in any respect to conform to the contract, the buyer may (a) reject the whole..." ] awarding the customer the contract price of $2,868.63 upon return of the furniture.

            [F-1] Merchandise Layaway Plans: G.B.L. 396-t

G.B.L. 396-t
" governs merchandise sold according to a layaway plan. A layaway plan is defined as a purchase over the amount of $50.00 where the consumer agrees to pay for the purchase of merchandise in four or more installments and the merchandise is delivered in the future "
[ Amiekumo v. Vanbro Motors, Inc. [274] ( failure to deliver vehicle purchased and comply with statutory disclosure requirements )]. While G.B.L. 396-t does not provide a private right of action for consumers it is has been held that a violation of G.B.L. 396-t is a per se violation of G.B.L. 349 thus entitling the recovery of actual damages or $50 whichever is greater, attorneys and costs [ Amiekumo v. Vanbro Motors, Inc., supra ].

            [G] Retail Refund Policies: G.B.L. 218-a

Some stores refuse to refund the consumer's purchase price in cash upon the return of a product
[ " Merchandise, in New Condition, May be Exchanged Within 7 Days of Purchase for Store Credit...No Cash Refunds or Charge Credits " ].[275]
In Baker v. Burlington Coat Factory Warehouse [276] , a clothing retailer refused to refund the consumer's cash payment when she returned a shedding and defective fake fur two days after purchase. General Business Law 218-a [ " GBL 218-a " ] permits retailers to enforce a no cash refund policy if there are a sufficient number of signs notifying consumers of " its refund policy including whether it is ' in cash, or as credit or store credit only '"[277] . If, however, the product is defective and there has been a breach of the implied warranty of merchantability [ U.C.C. 2-314 ] then consumers may recover all appropriate damages including the purchase price in cash [ U.C.C. 2-714 [278] ] . In essence, U.C.C. 2-314 preempts [279] GBL 218-a [ Baker v. Burlington Coat Factory Warehouse [280] ( defective shedding fake fur ); Dudzik v. Klein's All Sports [281] ( defective baseball bat ) ]. It has been held that a
" failure to inform consumers of their statutory right to a cash or credit card charge refund when clothing is defective and unwearable "
is a violation of GBL 349 which provides for treble damages, attorneys fees and costs [282] .

            [G-1]Retail Sales Installment Agreements: P.P.L. 401

New York's Retail Installment Sales Act is codified in P.P.L. 401 et seq. In Johnson v. Chase Manhattan Bank USA [283] a credit card holder challenged the enforceability of a mandatory arbitration agreement on, amongst other grounds, that it violated P.P.L. 413(10(f) which
" voids a provision in a retail installment credit agreement by which the retail buyer waives any right to a trial by jury in any proceeding arising out of the agreement ".
Nonetheless the Johnson Court found the arbitration agreement enforceable because the Federal Arbitration Act " preempts state law to the extent that it conflicts with the FAA ".

            [H] Rental Purchase Agreement: P.P.L. 500

Personal Property Law 500 et seq [ " PPL 500 et seq "] provides consumers who enter into rental purchase agreements with certain reinstatement rights should they fall behind in making timely payments or otherwise terminate the contract [ PPL 501 ]. In Davis v. Rent-A-Center of America, Inc [284] the Court awarded the consumer damages of $675.73 because the renter had failed to provide substitute furniture of a comparable nature after consumer reinstated rental purchase agreement after skipping payment. In Sagiede v. Rent-A-Center [285] the Court awarded the consumers damages of $2,124.04 after their TV was repossessed
( " this Court finds that, in keeping with the intent of Personal Property Law which attempts to protect the consumer while simultaneously allowing for a competitive business atmosphere in the rental-purchase arena, that the contract at bar fails to reasonably assess the consumer of his rights concerning repossession " ).

            [I] Implied Warranty Of Merchantability: U.C.C. 2-314

U.C.C. 2-314 provides consumers with an implied warranty of merchantability for products and has arisen in consumer lawsuits involving alarm and monitoring systems [ Cirillo v. Slomin's Inc. [286] ( contract clause disclaiming express or implied warranties enforced ), kitchen cabinet doors [ Malul v. Capital Cabinets, Inc. [287] ( kitchen cabinets that melted in close proximity to stove constitutes a breach of implied warranty of merchantability; purchase price proper measure of damages ), fake furs [ Baker v. Burlington Coat Factory Warehouse [288] ( U.C.C. 2-314 preempts [289] GBL 218-a ], baseball bats [ Dudzik v. Klein's All Sports [290] ] and dentures
[ Shaw-Crummel v. American Dental Plan [291] ( " Therefore implicated in the contract ...was the warranty that the dentures would be fit for chewing and speaking. The two sets of dentures...were clearly not fit for these purposes " )].

12] Telemarketing

It is quite common for consumers to receive unsolicited phone calls at their homes from mortgage lenders, credit card companies and the like. Many of these phone calls originate from automated telephone equipment or automatic dialing-announcing devices, the use of which is regulated by Federal and New York State consumer protection statutes.

            [A] Federal Telemarketing Rule: 47 U.S.C. 227

On the Federal level the Telephone Consumer Protection Act [292] [ TCPA ] prohibits users of automated telephone equipment
" to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without express consent of the called party " .[293]
A violation of the TCPA may occur when the " offending calls ( are ) made before 8 a.m. or after 9 p.m. " or " the calling entity ( has ) failed to implement do-not-call procedures " [ Weiss v. 4 Hour Wireless, Inc.[294] ] The purpose of the TCPA is to provide
" a remedy to consumers who are subjected to telemarketing abuses and ' to encourage consumers to sue and obtain monetary awards based on a violation of the statute ' " [295]
The TCPA may be used by consumers in New York State Courts including Small Claims Court [ Kaplan v. Democrat & Chronicle ;[296] Shulman v. Chase Manhattan Bank, [297] ( TCPA provides a private right of action which may be asserted in New York State Courts )]. Some Federal Courts have held that the states have exclusive jurisdiction over private causes of action brought under the TCPA [298] while some scholars have complained that
" Congress intended for private enforcement actions to be brought by pro se plaintiffs in small claims court and practically limited enforcement to such tribunals " .[299]
Under the TCPA consumers may recover their actual monetary loss for each violation or up to $500.00 in damages, whichever is greater
[ Kaplan v. Life Fitness Center [300] ( " that plaintiff is entitled to damages of $500 for the TCPA violation ( and ) an additional award of damages of $500 for violation of the federal regulation ";
treble damages may be awarded upon a showing that " defendant willfully and knowingly violated " [301] the Act ); Antollino v. Hispanic Media Group, USA, Inc . [302] ( plaintiff who received 33 unsolicited fax transmissions awarded " statutory damages of $16,500 or $500 for each violation " )]. In 2001 a Virginia state court class action against Hooters resulted in a jury award of $12 million on behalf of 1,321 persons who had received 6 unsolicited faxes .[303] Recently, the Court in Rudgayzer & Gratt v. Enine, Inc. [304] held that the TPCA, to the extent it restricts unsolicited fax advertisements, is unconstitutional as violative of freedom of speech. This decision was reversed [305] , however, by the Appellate Term
( " A civil liberties organization and a personal injury attorney might conceivably send identical communications that the recipient has legal rights that the communicating entity wishes to uphold; the former is entitled to the full ambit of First Amendment protection...while the latter may be regulated as commercial speech " ).
In Bonime v. Management Training International [306] the Court declined to pass on the constitutionality of TPCA for a lack of jurisdiction.

            [B] New York's Telemarketing Rule: G.B.L. 399-p

On the State level, General Business Law 399-p
[ " GBL 399-p " ] " also places restrictions on the use of automatic dialing-announcing devices and placement of consumer calls in telemarketing "[307]
such as requiring the disclosure of the nature of the call and the name of the person on whose behalf the call is being made. A violation of GBL 399-p allows recovery of actual damages or $50.00, whichever is greater, including trebling upon a showing of a wilful violation.

Consumers aggrieved by telemarketing abuses may sue in Small Claims Court and recover damages under both the TCPA and GBL 399-p [ Kaplan v. First City Mortgage [308] ( consumer sues telemarketer in Small Claims Court and recovers $500.00 for a violation of TCPA and $50.00 for a violation of GBL 399-p ); Kaplan v. Life Fitness Center [309] ( consumer recovers $1,000.00 for violations of TCPA and $50.00 for a violation of GBL 399-p )].

            [C] Telemarketing Abuse Act: G.B.L. 399-pp

Under General Business Law 399-z [ " GBL 399-z " ], known as the " Do Not Call " rule, consumers may prevent telemarketers from making unsolicited telephone calls by filing their names and phone numbers with a statewide registry.
" No telemarketer...may make...any unsolicited sales calls to any customer more than thirty days after the customer's name and telephone number(s)...appear on the then current quarterly no telemarketing sales calls registry ".
Violations of this rule may subject the telemarketer to a maximum fine of $2,000.00. In March of 2002 thirteen telemarketers accepted fines totaling $217,000 for making calls to persons who joined the Do Not Call Registry. [310] In addition " [n]othing ( in this rule ) shall be construed to restrict any right which any person may have under any other statute or at common law ".

            [D] Telemarketing Abuse Prevention Act: G.B.L. 399-pp

Under General Business Law 399-pp [ " GBL 399-pp " ] known as the Telemarketing And Consumer Fraud And Abuse Prevention Act, telemarketers must register and pay a $500 fee [ GBL 399-pp(3) ] and post a $25,000 bond " payable in favor of ( New York State ) for the benefit of any customer injured as a result of a violation of this section " [ GBL 399-pp(4) ]. The certificate of registration may be revoked and a $1,000 fine imposed for a violation of this section and other statutes including the Federal TCPA. The registered telemarketer may not engage in a host of specific deceptive [ GBL 399-pp(6)(a) ] or abusive [ GBL 399-pp(7) ] telemarketing acts or practices, must provide consumers with a variety of information [ GBL 399-pp(6)(b)] and may telephone only between 8:00AM to 9:00PM. A violation of GBL 399-pp is also a violation of GBL 349 and also authorizes the imposition of a civil penalty of not less than $1,000 nor more than $2,000.

            [E] Unsolicited Telefacsimile Advertising: G.B.L. 396-aa

This statute makes it unlawful to
" initiate the unsolicited transmission of fax messages promoting goods or services for purchase by the recipient of such messages "
and provides an private right of action for individuals to seek " actual damages or one hundred dollars, whichever is greater ". In Rudgayser & Gratt v. Enine, Inc. [311],the Appellate Term refused to consider " whether the TCPA has preempted ( G.B.L. ) 396-aa in whole or in part ". 13] Litigation Issues

            [A] Mandatory Arbitration Clauses

Manufacturers and sellers of goods and services have with increasing frequency used contracts with clauses requiring aggrieved consumers to arbitrate their complaints instead of bringing lawsuits, particularly, class actions[312] . The language in such an agreement seeks to extinguish any rights customers may have to litigate a claim before a court of law. The U.S. Supreme Court[313] and the Federal District Courts within the Second Circuit [314] have addressed the enforceability of contractual provisions requiring mandatory arbitration, including who decides arbitrability and the application of class procedures, the court or the arbitrator. New York Courts have, generally, enforced arbitration agreements[315] within the context of individual and class actions.

            [B] Forum Selection Clauses

" Forum selection clauses are among the most onerous and overreaching of all clauses that may appear in consumer contracts. The impact of these clauses is substantial and can effectively extinguish legitimate consumer claims, e.g., plaintiff' claim herein of $1,855 is, practically speaking, unenforceable except in the Small Claims Court, since the costs of retaining an attorney in and traveling to Utah would far exceed recoverable damages "
[ Oxman v. Amoroso [316] ( Utah forum selection clause not enforced ); Scarella v. America Online [317] ( Virginia forum selection clause in online agreement not enforced ); But see Gates v. AOL Time Warner, Inc.[318] ( Gay & Lesbian AOL customers challenged AOL's failure to police chat rooms to prevent threats by hate speech by others; Virginia forum selection clause enforced notwithstanding plaintiffs' claims that it
" should not be enforced...because Virginia law does not allow for consumer class action litigation and would therefore conflict with...public policy " )].

            [C] Consumer Class Actions Under CPLR Article 9

In New York State Supreme Courts consumer claims may be brought as class actions under C.P.L.R. Article 9 [319] . Generally, New York Courts has been somewhat restrictive in applying Article 9 [320] but certain types of consumer class actions are certifiable.

                  [1] Types Of Consumer Class Action Claims Over the last 10 years [321] New York Courts have addressed consumer class actions [322] involving a variety of misrepresented or defective goods and services:

                     [a] Baby Makers [ e.g., misrepresented in vitro fertilization rates [323] ],

                      [b] Bail Bonds [ e.g., excessive and unlawful fees [324] ],

                     [c] Books [ e.g., author of novel " Chains of Command " misrepresented [325], underpayment of royalties [326], misrepresented annual rates of return in " The Beardstown Ladies' Common-Sense Investment Guide " [327] ],

                     [d] Cars, Cars, Cars [ e.g., defective single recliner mechanisms [328], deceptive engine oil disposal surcharge[329] , defective Lincoln Continentals [330], failure to reduce lease payments [331], misrepresented Automatic Ride Control[332], deceptive pricing of identical Octane gasolines [333], misrepresented low prices, low finance charges and guaranteed minimum trade-in allowances[334] , failure to disclose alternative rental car arrangements at lower rates [335], misrepresented rental car replacement gasoline, personal accident insurance and collision damage waivers [336] ],

                      [e] CDs & DVDs [ e.g., inflated shipping and handling charges from music club [337] ],

                      [f] Computers, Software & Internet Services [ e.g., creating an software applications barrier [338], misrepresented DSL services [339], misrepresented services by Internet provider [340], unauthorized renewal of domain names registration [341], failure to police chat rooms [342], misrepresented ink jet printers [343], defective Microsoft IntelliMouse Explorers [344] , improper billing for unlimited AOL service [345], failure to provide 24 hour technical support [346], failure to provide promised service [347], misrepresenting computer upgradability [348], vibration problems [349] ],

                     [g] Dental Products [ e.g., defective polymer-based dental restorations [350] ],

                     [h] Drugs [ e.g., price fixing [351] ],

                     [I] Entertainment [ e.g., obstructed view of Michael Jackson concert [352], heavy weight fight stopped because Mike Tyson bites off opponent's ear [353] ],

                     [j] Food & Drink [ e.g., misrepresentations that soft drink would " improve memory " [354] , food poisoning [355], misrepresented fat and coloric content in Pirate's Booty & Fruity Booty [356], fat content of Power Bars misrepresented [357], misr epresented baby food and cooking wine [358] , spoiled, stale and tasteless soft drinks [359] ],

                     [k] Gambling [ e.g., racetrack bettors challenge rounding down of winnings[360] ],

                      [l] Grain Silos [ e.g., misrepresentations of prevention of oxygen exposure [361] ],

                     [m] Hospitals [ e.g., overbilling [362] ],

                     [n] Household Goods [ e.g., disclosure of " effective economic interest rate " [363] , misrepresentations of amount of water purified by water filters [364] ],

                     [o] Insurance [ e.g., failure to charge statutorily approved title insurance premium rates [365] , vanishing premium life insurance policies [366] , coverage and COD payments [367] , termination of coverage without notice [368] , medical fees in excess of Medicare rules [369] , failure to increase benefits [370] , improper deduction of contractor's profit and overhead [371] , misrepresented Optional Premiums [372] , excess and unwarranted rate increases [373] ],

                     [p] Loans/Credit Cards/Debit Cards [ e.g., illegal credit card/debit card tie-in [374] , high pressure sales [375] , payment allocation for cash advances [376] , misrepresented credit insurance [377] , exces sive interest on payday loans[378] ],

                     [q] Mortgages [ e.g., improper fax fees, quote fees & satisfaction fees[379] , improper recording and fax fees [380] , improper mortgage refinancing fees[381] , illegal loan application processing fees [382], unnecessary private mortgage insurance[383] , improperly inflating escrow payments for realty taxes [384] ],

                      [r] Newspaper Subscriptions [ e.g., changing the terms of a promotional offer after subscriptions purchased [385] ],

                      [s] Nursing Homes [ e.g., mistreatment and malpractice [386]],

                     [t] Personal Products [ e.g., misrepresented sun tan lotion [387], different prices for chemically identical contact lens [388], failure to reveal known side effects of hair loss product[389] , misrepresented Doan's Pills [390] ],

                     [u] Privacy [ e.g., bank used unauthorized photo of employees[391] , pharmacy sells customer records and medical histories [392], bank sells customer names and phone numbers to telemarketing firm [393]],

                     [v] Shippers [ e.g., refunds of " an improperly collected Federal tax " sought from Federal Express [394] ],

                     [w] Tax Advice [ e.g., unneeded and unwanted refund anticipation loans from tax preparer [395]; negligent tax advice [396] ],

                     [x] Telephones, Cell Phones & Faxes [ e.g., unsolicited telephone calls and faxes [397], failure to honor Qualcomm $50 rebate [398], " fat fingers " toll-free call services[399] , improperly credited cell phone calls [400], misrepresented cell phone rates [401], inadequate cell phone service[402] , malfunctioning 800 numbers [403], illegal automatic cell phone renewal clause[404 , failure to implement All Call Restrict service[405] , rounding up to whole minute increments [406], defective cell phone service [407] ],

                     [y] Tobacco Products [ e.g., price fixing[408] , addictive nature of nicotine misrepresented [409] ],

                     [z] Toys [ e.g., shipping dates misrepresented [410] ],

                     [aa] Travel [ e.g., misrepresented campground sites[411] , flight misrepresented as " non-stop " [412]. school trips cancelled[413] , deceptive cruise port charges [414], airline overbooking [415]],

                     [bb] TV & Cable [ e.g., cable TV late fees [416] ].

                  2] Consumer Law Theories Of Liability

Consumer class actions, typically, assert common law theories of liability and/or violations of consumer protection statutes.

                  3] Common Law Claims

                     [a] Breach Of Contract: Breach of contract claims are, generally, certifiable under Article 9 of the C.P.L.R. [ e.g., insurance [417], oil and gas royalties[418] , book publishing [419], air transportation services [420], credit card agreements [421], campground sites [422], Michael Jackson concert tickets[423] , $50 cell phone rebates[424] , employment agreements [425], failure to credit mortgage commitment fees [426] and tour packages [427] ] when they are based upon uniform [428], printed offers, solicitations or contracts which have been breached in a similar manner without regard to the quantitative differences in class member damages[429] . While oral representations [430] may be sufficient for class certification, printed contracts are, generally, necessary.

                     [b] Quasi Contractual Claims: Breach of quasi-contractual obligations [431] are certifiable claims if the misconduct is uniform in its impact upon class members. Such claims include:

                     [c] Unjust Enrichment [ e.g., artificially inflated prices for Microsoft software [432] , sale of confidential medical and prescription information [433] , sale of campground sites [434], caller identification services [435] , obstructed concert view [436], overpayments for title insurance [437] ],

                     [d] Money Had And Received [ e.g., automatic renewal of domain name registrations [438] , mortgage recording taxes [439] ],

                     [e] Bad Faith Dealings [ e.g., overcharges for rental car replacement gasoline, collision damage waivers and personal accident insurance [440] , book publisher's accounting of sales to foreign affiliates [441] , failure to give notice of 30-day insurance policy grace period [442] , underpayment of movie and video royalties [443] ],

                     [f] Breach Of An Implied Covenant Of Good Faith [ e.g., underpayment of oil and gas royalties [444], renewal of domain name registrations[445] , allocating credit card payments to cash advances[446] , marketing credit cards with hidden fees [447] ],

                     [g] Unconscionability [ e.g., sale of campground sites [448], sale of rental car replacement gasoline [449] ],

                     [h] Economic Duress [ e.g., mortgage recording taxes [450] ],

                     [I] Penalties [ e.g., cable TV payment late fees [451], service charges for checks returned because of insufficient funds [452] ]. It should be noted that Article 9 class actions seeking the imposition of a statutory minimum or the trebling of damages are usually [453], but not always[454] , not certifiable as being prohibited by C.P.L.R. 901(b).

                     [j] Breach Of Warranty claims are difficult to certify as class actions [ e.g., defective dental restorations[455] , defective recliner mechanism[456] , defectively designed Lincoln Continentals [457], defective grain silos [458], defective Microsoft IntelliMouse Explorers [459], defective computer software [460], misrepresented bottled soft drinks [461] ]. For example, the breach of an express warranty class action is rarely certified under Article 9 because proof of individual reliance may be required, some courts finding that individual reliance issues predominate over common questions[462] .

                      [k] Fraud claims are, generally, certifiable [ e.g., fat fingers business[463] , campground sites[464] , improper termination of insurance coverage [465] , method of amortizing mortgage principal balances [466] , telephone caller identification services[467] , marketing of Hyundai cars[468] , travel services [469] , failure of title insurers to charge mandated discounted rates for refinancing[470] , obstructed view for Michael Jackson concert [471] , failure to honor $50 cellphone rebate [472] , overpriced Burger King fast food [473] ] if the representations are uniform and printed[474] . Usually [475] , but not always [476] , New York courts are willing to presume reliance in common law fraud class actions.

                      [l] Breach Of Fiduciary Duty claims are, generally, certifiable [ e.g., unauthorized sales of pharmacy customer's medical and prescription information [477] , withholding of brokerage funds for 24 hours [478] ] if there is a special relationship and uniform misconduct [ e.g., unneeded overpriced tax preparer refund anticipation loans [479]].

                      [m] Negligence claims which seek economic damages are, generally, certifiable [ e.g., negligent misrepresentations about the amount of water which can be purified [480], the nature of a student tour [481], the availability of a $50 cell phone rebate [482] , failure to give notice of 30 day insurance policy grace period [483], negligent rendering of tax advice [484] ] unless they involve mass torts arising from physical injury or property damage claims. Generally, mass torts are not certifiable under Article 9 of the C.P.L.R. [485]

                  4] Statutory Theories Of Liability

There are a variety of consumer protection statutes which have been asserted in Article 9 consumer class actions. Some of them are

                     [a] G.B.L. 349, 350: The most popular consumer protection statute is General Business Law [ " G.B.L. " ] 349. As we discussed earlier [486] G.B.L. 349 is a statutory compliment to or substitute for a common law fraud claim. G.B.L. 349 covers a broad and growing spectrum of goods and services " appl(ying) to virtually all economic activity "[487] and is broader than common law fraud [ no proof of reliance or scienter [488] required but must prove causation[489] ] and

" encompasses a significantly wider range of deceptive business practices that were ever previously condemned by decisional law " .[490]
The Courts have been willing to certify G.B.L. 349 and 350 [ false advertising [491]] claims[ e.g., in 2004 G.B.L. 349 class actions were certified involving " fat fingers " telephone service [492], overpayments for title insurance [493], obstructed views of a Michael Jackson concert [494], hair loss product misrepresented as having no known side effects[495] and failure to honor a Qualcomm 2700 $50 rebate program [496] ], usually, but not always [497], limited to a class of New York residents [ the deceptive act having occurred in New York State [498] ]. The deceptive acts must be consumer oriented [499] and based upon uniform printed misrepresentations [500] or uniform omissions of material fact [501] or a common course of conduct [502]. Although C.P.L.R. 901(b) prohibits a class action seeking a minimum recovery or treble damages such damages may be waived in a G.B.L. 349 class action [503]as long as class members are notified and given a chance to opt-out [504].

                     [b] G.B.L. 340 claims alleging a violation of the Donnelly Act, New York's antitrust statute, have, generally, not been certified [505] on the grounds that the treble damages provision constitutes a penalty and is prohibited by C.P.L.R. 901(b).

                     [c] Telephone Consumer Protection Act [ TCPA ] claims may be uncertifiable as well since some courts have held that the $500 minimum damages and the TCPA treble damages provision constitute penalties which are also prohibited by C.P.L.R. 901(b) [506].

                     [d] Public Health Law claims under 2801-d involving the mistreatment of residents of residential care facilities are certifiable [507] and claims involving overcharges for hospital medical records may be certifiable under 18(2)(e) [508].

                     [e] Tenant Security Deposit claims may be certifiable [509]as long as they involve uniform misconduct by landlords in failing to properly handle security deposits.

                     [f] Privacy claims are certifiable based upon a violation of Civil Rights Law 51 [510] or common law theories such as breach of fiduciary duty [511].

                     [g] No Fault Insurance coverage claims are certifiable, especially, when the class action seeks to enforce a decision on the merits in a non-class action [512].

                     [h] Real Property Law 274 claims may be certifiable[ e.g., fax fee, quote fee and satisfaction fee [513], recording and fax fees [514] ].

[5] The Class Action Fairness Act of 2005

As a response to abuses, real and perceived, the federal Class Action Fairness Act of 2005 [ " the Act of 2005 " ] became Public Law No: 109-002 [515] ( February 18, 2005 ). The Act of 2005

" Grants ( federal ) district courts original jurisdiction of any civil action in which the matter in controversy exceeds $5 million, exclusive of interest and costs, and that is between citizens of different states, or citizens of a State and foreign State or its citizens or subjects ".

Once removed the District Court may

" decline to exercise jurisdiction over a class in which more than one-third but less than two-thirds of the members of proposed plaintiff classes in the aggregate and the primary defendants are citizens of the State in which the action was originally filed, based on consideration of whether:
(1) the claims involve matters of national or interstate interest;
(2) the claims will be governed by the laws of the State where the action was originally filed or by the laws of other States;
(3) the class action has been pleaded in a manner that seeks to avoid Federal jurisdiction;
(4) the action was brought in a forum with a distinct nexus with the class members, the alleged harm, or the defendants;
(5) the number of citizens of the State or original filing in all proposed plaintiff classes in the aggregate is substantially larger than the number of citizens from any other State and the citizenship of other proposed class members is dispersed; and
(6) during the three-year period preceding filing, one or more other class actions asserting the same or similar claims on behalf of the same persons have been filed
".

However, the District Court must decline jurisdiction in class actions in which

" (1) more than two-thirds of the members of the proposed plaintiff classes in the aggregate are citizens of the State where the action was originally filed, at least one defendant is a defendant from whom significant relief is sought, whose alleged conduct forms a significant basis for the claims asserted, and who is a citizen of the State where the action was originally filed and principal injuries resulting from the alleged or related conduct were incurred in such State; and
(2) during the three-year period preceding filing, no other class action has been filed asserting the same or similar factual allegations against any of the defendants on behalf of the same or other persons; or
(3) two-thirds or more of the members of all proposed plaintiff classes in the aggregate, and the primary defendants, are citizens of the State where the action was originally filed
".

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FOOTNOTES

[1]. Thomas A. Dickerson is a Justice of the New York State Supreme Court, Ninth Judicial District, 111 Dr. Martin Luther King Jr. Blvd., White Plains, New York, 10606. See Justice Dickerson's Court Web Page is at www.nycourts.gov/courts/9jd/taxcert.shtml and personal Web Page is at http://members.aol.com/judgetad/index.html. Justice Dickerson is the author of Travel Law, Law Journal Press, New York, 1981-2005, Class Actions: The Law of 50 States, Law Journal Press, 1988-2005 and over 200 articles and papers on consumer law issues, many of which are available at www.consumerlaw.org/links/#travel_articles and www.classactionlitigation.com/library/ca_articles.html

[2].For an excellent discussion of General Business Law 349 see Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris Inc.,, 178 F. Supp. 2d 198 ( E.D.N.Y. 2001 ).

[3].Do corporations and other non-consumers have standing to assert claims under G.B.L. 349? The Second Circuit Court of Appeals in Blue Cross and Blue Shield v. Philip Morris USA, 344 F. 3d 211 ( 2d Cir 2003 ) certified two questions to the New York Court of Appeals, the first of which was answered. Relying upon the common law rule that " an insurer or other third-party payer of medical expenditures may not recover derivatively for injuries suffered by its insured " the Court of Appeals in Blue Cross & Blue Shield of N.J. Inc. v. Philip Morris USA, Inc.,, 3 N.Y. 3d 200, 207, 2004 WL 2339565 ( 2004 ) held, without deciding the ultimate issue of whether non-consumers are covered by G.B.L. 349, that Blue Cross's claims were too remote to provide it with standing under G.B.L. 349 ). See also: Securitron Magnalock Corp., v. Schnabolk, 65 F. 3d 256, 264 ( 2d Cir. 1995, cert. denied 516 US 1114 ( 1996 )( allowing a corporation to use section 349 to halt a competitor's deceptive consumer practices " ).

[4].See e.g., Hart v. Moore, 155 Misc. 2d 203, 587 N.Y.S. 2d 477, 480 ( 1992 ). However, at least, one court has awarded damages exceeding the $1,000.00 limit. See Lipscomb v. Manfredi Motors, New York Law Journal, April 2, 2002, p. 21 ( N.Y. Civ. ) ( damages consisted of the " balance owed to the claimant pursuant to the arbitrator's award...reduced to the jurisdictional amount of $3,000 " ) and Levitsky v. SG Hylan Motors, Inc., New York Law Journal, July 3, 2003, p. 27, col. 5 ( N.Y. Civ. 2003 )
( " In addition GBL 349(h) allows the court to award punitive damages. The actions of the defendant entitled the claimant to an award of actual damages and punitive damages up to the $3,000.00, the jurisdictional limit of small claims part " ).

[5].State of New York v. Justin, 2003 WL 23269283 ( N.Y. Sup. 2003 )( investment scheme for the purchase of payphones marketed to elderly ).

[6].People v. Gift & Luggage Outlet, 194 Misc. 2d 582 ( N.Y. Sup. 2003 )( G.B.L. 870 et seq. prohibiting the sale of imitation weapons preempts G.B.L 349 ( G.B.L. 873 was enacted
" to prescribe the enforcement mechanisms and penalties to be imposed for violations of ( G.B.L. 872 ). To accept the...argument that a violation of section 872 should also lead to the imposition of additional penalties pursuant to ( G.B.L. 349 and 350-d ) would upset the statutory scheme and impose double penalties for the same violation in a manner not intended by the Legislature " ).


[7].Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y. 2d 20, 623 N.Y.S. 2d 529, 532, 647 N.E. 2d 741 ( 1995 ). See also Walts v. Melon Mortgage Corporation, 259 A.D. 2d 322, 686 N.Y.S. 2d 428 ( 1999 )( " Plaintiffs have adequately alleged a materially deceptive practice aimed at consumers " ), appeal dismissed 94 N.Y. 2d 795, 700 N.Y.S. 2d 424, 722 N.E. 2d 504 ( 1999 ); Dunn v. Northgate Ford, Inc., 1 Misc. 3d 911(A)( N.Y. Sup. 2004 )
( " there is evidence from other affiants that similar omissions and/or misstatements of fact, known to the dealer to be false or misleading...occurred in other sales at the same dealership...such practices are not isolated instances and would have a ' broader impact on consumers at large ' " );
McKinnon v. International Fidelity Insurance Co., 182 Misc. 2d 517, 522 ( N.Y. Sup. 1999 )( " the conduct must be consumer-oriented and have a broad impact on consumers at large " ).

[8].See e.g., Berardino v. Ochlan, 2 A.D. 3d 556, 770 N.Y.S. 2d 75 ( 2003 )( claim against insurance agent for misrepresentations not consumer oriented ); Martin v. Group Health, Inc., 2 A.D. 3d 414, 767 N.Y.S. 2d 803 ( 2003 )( dispute over insurance coverage for dental implants not consumer oriented ); Goldblatt v. MetLife, Inc., 306 A.D. 2d 217, 760 N.Y.S. 2d 850 ( 2003 )( claim against insurance company not " consumer oriented " ); Rosenberg v. Chicago Ins. Co., 2003 WL 21665680 ( N.Y. Sup. 2003 )( conduct not consumer oriented;
" Although the complaint includes allegations that the insurer's alleged bad acts had an impact on the public ( plaintiff ) is a large law firm, which commenced this action to protect its interests under a specific insurance policy " );
Canario v. Prudential Long Island Realty, 300 A.D. 2d 332, 751 N.Y.S. 2d 310 ( 2002 )( .78 acre property advertised as 1.5 acres is size;
" the misrepresentation had the potential to affect only a single real estate transaction involving a single unique piece of property...There was no impact on consumers or the public at large " );
Cruz v. NYNEX Information Resources, 263 A.D. 2d 285, 290, 703 N.Y.S. 2d 103 ( 1st Dept. 2000 ).

[9].Small v. Lorillard Tobacco Co., 94 N.Y. 2d 43, 720 N.E. 2d 892, 698 N.Y.S. 2d 615 ( 1999 ).

[10].Gabbay v. Mandel, New York Law Journal, March 10, 2004, p. 19, col. 3 ( N.Y. Sup. 2004 ).

[11].See e.g., Anonymous v. CVS Corp., New York Law Journal, January 8, 2004, p. 19, col. 1 ( N.Y. Sup. )( " Deception itself with no other injury is not actionable under 349 " ).

[12].Small v. Lorillard Tobacco Co., 94 N.Y. 2d 43, 55-56 ( 1999 ).

[13].Solomon v. Bell Atlantic Corp., 9 A.D. 3d 49, 777 N.Y.S. 2d 50 ( 1st Dept. 2004 ).

[14].Sokoloff v. Town Sports International, Inc., 6 A.D. 3d 185, 778 N.Y.S. 2d 9 ( 1st Dept. 2004 ).

[15].Donahue v. Ferolito, Vultaggio & Sons, 13 A.D. 3d 77, 786 N.Y.S. 2d 153 ( 1st Dept. 2004 ).

[16].Levine v. Philip Morris Inc., 5 Misc. 3d 1004(A) ( N.Y. Sup. 2004 ).

[17].Han v. Hertz Corp., 12 A.D. 3d 195, 784 N.Y.S. 2d 106 ( 1st Dept. 2004 ).

[18].Guggenheimer v. Ginzburg, 43 N.Y. 2d 268, 401 N.Y.S. 2d 182, 184, 372 N.E. 2d 17 ( 1977 ).

[19].Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y. 2d 20, 623 N.Y.S. 2d 529, 532, 647 N.E. 2d 741 ( 1995 ).

[20]. Karlin v. IVF America, Inc., 93 N.Y. 2d 282, 690 N.Y.S. 2d 495, 712 N.E. 2d 662 ( 1999 ).

[21].Gaidon v. Guardian Life Insurance Company, 96 N.Y. 2d 201, 727 N.Y.S. 2d 30, 750 N.E. 2d 1078 ( 2001 ).

[22].State of New York v. Feldman, 2002 W.L. 237840 ( S.D.N.Y. 2002 ).

[23].Id. See also: Soskel v. Handler, 189 Misc. 2d 795, 736 N.Y.S. 2d 853( 2001 )( unsatisfactory performance of hair transplant procedures; GBL 349 claim accrued when last surgical procedure was performed ).

[24].Goshen v. Mutual Life Insurance Company, 286 A.D. 2d 229, 730 N.Y.S. 2d 46 ( 2001 )

[25].Scott v. Bell Atlantic Corp., 282 A.D. 2d 180, 726 N.Y.S. 2d 60 ( 2001 ).

[26].Farino v. Jiffy Lube International, Inc., 298 A.D. 2d 553, 748 N.Y.S. 2d 673 ( 2002 ).

[27].Goshen v. The Mutual Life Ins. Co., 98 N.Y. 2d 314, 746 N.Y.S. 2d 858, 774 N.E. 2d 1190 ( 2002 ).

[28].Scott v. Bell Atlantic Corp., 98 N.Y. 2d 314, 746 N.Y.S. 2d 858, 774 N.E. 2d 1190 ( 2002 ).

[29].In Croak v. Bell Atlantic Corp., N.Y.L.J., January 10, 2002, p. 20, col. 4 ( N.Y. Sup. ), the Court dismissed a consumer class action claiming that DSL services were misrepresented as to speed and quality citing as authority Scott v. Bell Atlantic Corp., 282 A.D. 2d 180 ( 1st Dep. 2001 ). The Scott decision was later modified by the Court of Appeals restoring the GBL 349 claim.

[30].See e.g., Murrin v. Ford Motor Co., 303 A.D. 2d 475, 756 N.Y.S. 2d 596 ( 2003 )( G.B.L. 349 claim dismissed for failing to " allege that the deceptive acts complained of took place within the State of New York " ); Mountz v. Global Vision Products, Inc., 770 N.Y.S. 2d 603 ( N.Y. Sup. 2003 )( " this complaint pleads no consumer action or contact occurring within New York State as the out-of-state plaintiffs " ).

[31].Truschel v. Juno Online Services, Inc., N.Y.L.J., December 12, 2002, p. 21, col. 4 ( N.Y. Sup. ).

[32].Peck v. AT&T Corp., N.Y.L.J., August 1, 2002, p. 18, col. 3 ( N.Y. Sup. ).

[33].Bartolomeo v. Runco, 162 Misc. 2d 485, 616 N.Y.S. 2d 695 ( 1994 ).

[34].Anilesh v. Williams, New York Law Journal, Nov. 15, 1995, p. 38, col. 2 ( Yks. Cty. Ct. )( landlord can not recover unpaid rent for illegal apartment ).

[35]. Yochim v. McGrath, 165 Misc. 2d 10, 626 N.Y.S. 2d 685 ( 1995 ).

[36].People v. Law Offices of Andrew F. Capoccia, Albany County Sup., Index No: 6424-99, August 22, 2000.

[37].Aponte v. Raychuk, 160 A.D. 2d 636, 559 N.Y.S. 2d 255 ( 1990 ).

[38].Oxman v. Amoroso, 172 Misc. 2d 773, 659 N.Y.S. 2d 963 ( 1997 ).

[39].Lipscomb v. Manfredi Motors, New York Law Journal, April 2, 2002, p. 21 ( Richmond Civ. Ct. )

[40].State of New York v. Feldman, 2002 W.L. 237840 ( S.D.N.Y. 2002 ).

[41].Levitsky v. SG Hylan Motors, Inc., New York Law Journal, July 3, 2003, p. 27., col. 5 ( N.Y. Civ. 2003 ).

[42].Spielzinger v. S.G. Hylan Motors Corp., New York Law Journal, September 10, 2004, p. 19, col. 3 ( Richmond Civ. 2004 ).

[43]. Karlin v. IVF, 93 N.Y. 2d 283, 291 ( 1999 ).

[44]. Mountz v. Global Vision Products, Inc., 3 Misc. 3d 171, 770 N.Y.S. 2d 603 ( N.Y. Sup. 2003 ).

[45].People v. Trescha Corp., New York Law Journal, December 6, 2000, p. 26, col. 3 ( N.Y. Sup. ).

[46].People v. Condor Pontiac, 2003 WL 21649689 ( N.Y. Sup. 2003 ).

[47]. Spielzinger v. S.G. Hylan Motors Corp., New York Law Journal, September 10, 2004, p. 19, col. 3 ( Richmond Civ. 2004 ).

[48].Naevus International, Inc. v. AT&T Corp., 2000 WL 1410160 ( N.Y. Sup. 2000 ).

[49].Sherry v. Citibank, N.A., 5 A.D. 3d 335, 773 N.Y.S. 2d 553 ( 1st Dept. 2004 ).

[50].Baker v. Burlington Coat Factory, 175 Misc. 2d 951, 673 N.Y.S. 2d 281 ( 1998 ).

[51].People v. Telehublink, 301 A.D. 2d 1006, 756 N.Y.S. 2d 285 ( 2003 ).

[52]. Sims v. First Consumers National Bank, 303 A.D. 2d 288, 758 N.Y.S. 2d 284 ( 2003).

[53]. Broder v. MBNA Corporation, New York Law Journal, March 2, 2000, p. 29, col. 4 ( N.Y. Sup. ), aff'd 281 A.D. 2d 369, 722 N.Y.S. 2d 524 ( 2001 ).

[54].Anonymous v. CVS Corp., 188 Misc. 2d 616, 728 N.Y.S. 2d 333 ( 2001 ).

[55]. Ritchie v. Empire Ford Sales, Inc., New York Law Journal, November 7, 1996, p. 30, col. 3 ( Yks. Cty. Ct. ).

[56].Giarrantano v. Midas Muffler, 166 Misc. 2d 390, 630 N.Y.S. 2d 656 ( 1995 ).

[57]. People v. General Electric Co., Inc., 302 A.D. 2d 314, 756 N.Y.S. 2d 520 ( 2003 ).

[58]. New York Environmental Resources v. Franklin, New York Law Journal, March 4, 2003, p. 27 ( N.Y. Sup. ).

[59]. Rossi v. 21st Century Concepts, Inc., 162 Misc. 2d 932, 618 N.Y.S. 2d 182 ( 1994 ).

[60]. Andre v. Pace University, 161 Misc. 2d 613, 618 N.Y.S. 2d 975 ( 1994 ), rev'd on other grounds 170 Misc. 2d 893, 655 N.Y.S. 2d 777 ( 1996 ). See also: Cullen v. Whitman Medical Corp., 197 F.R.D. 136 ( E.D. Pa. 2000 )( settlement of class action involving education misrepresentations ).

[61]. Brown v. Hambric, 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ). Web Page, supra.

[62].Cambridge v. Telemarketing Concepts, Inc., 171 Misc. 2d 796, 655 N.Y.S. 2d 795 ( 1997 ).

[63]. McKinnon v. International Fidelity Insurance Co., 182 Misc. 2d 517, 704 N.Y.S. 2d 774 ( 1999 ).

[64]. Sharknet Inc. v. Techmarketing, NY Inc., New York Law Journal, April 22, 1997, p. 32, col. 3 ( Yks. Cty. Ct. ), aff'd N.Y.A.T., Decision dated Dec. 7, 1998.

[65].Petrello v. Winks Furniture, New York Law Journal, May 21, 1998, p. 32, col. 3 ( Yks. Cty. Ct. ).

[66].Walker v. Winks Furniture, 168 Misc. 2d 265, 640 N.Y.S. 2d 428 ( 1996 ).

[67].Filpo v. Credit Express Furniture Inc., New York Law Journal, Aug. 26, 1997, p. 26, col. 4 ( Yks. Cty. Ct. ).

[68].Colon v. Rent-A-Center, Inc., 2000 N.Y. App. Div. LEXIS 11289 ( 1st Dept. 2000 ).

[69].Mountz v. Global Vision Products, Inc., 770 N.Y.S. 2d 603 ( N.Y. Sup. 2003 ).

[70].State v. Wilco Energy Corp., 283 A.D. 2d 469, 728 N.Y.S. 2d 471 ( 2001 ).

[71].Ricciardi v. Frank d/b/a InspectAmerica Engineering, P.C., 163 Misc. 2d 337, 620 N.Y.S. 2d 918 ( 1994 ), mod'd 170 Misc. 2d 777, 655 N.Y.S. 2d 242 ( N.Y.A.T. 1996 ). See also: Seebacher, "Watching the inspectors," Real Estate Section, The Journal News, January 1-2, 2005 ( licensing of home inspectors and how to choose a home inspector ).

[72].Karlin v. IVF America, Inc., 93 N.Y. 2d 282, 690 N.Y.S. 2d 495, 712 N.E. 2d 662 ( 1999 ).

[73].Gaidon v. Guardian Life Insurance Co., 94 N.Y. 2d 330, 338, 704 N.Y.S. 2d 177, 725 N.E. 2d 598 ( 1999 ).

[74].Monter v. Massachusetts Mutual Life Ins. Co., 12 A.D. 3d 651, 784 N.Y.S. 2d 898 ( 2d Dept. 2004 ).

[75]. Skibinsky v. State Farm Fire and Casualty Co., 6 A.D. 3d 976, 775 N.Y.S. 2d 200 ( 3d Dept. 2004 ).

[76]. Makuch v. New York Central Mutual Fire Ins. Co., 12 A.D. 3d 1110, 785 N.Y.S. 2d 236 ( 4th Dept. 2004 ).

[77].Brenkus v. Metropolitan Life Ins. Co., 309 A.D. 2d 1260, 765 N.Y.S. 2d 80 ( 2003 ).

[78].Acquista v. New York Life Ins. Co., 285 A.D. 2d 73, 730 N.Y.S. 2d 272 ( 2001 ).

[79].Rubinoff v. U.S. Capitol Insurance Co., New York Law Journal, May 10, 1996, p. 31, col. 3 ( Yks. Cty. Ct. ).

[80].Makastchian v. Oxford Health Plans, Inc., 270 A.D. 2d 25, 704 N.Y.S. 2d 44 ( 2000 ).

[81].Zurakov v. Register.Com, Inc., 304 A.D. 2d 176, 760 N.Y.S. 2d 13( 2003 ).

[82].People v. Network Associates, 195 Misc. 2d 384, 758 N.Y.S. 2d 466 ( 2003 ).

[83].People v. Lipsitz, 174 Misc. 2d 571, 663 N.Y.S. 2d 468 ( 1997 ).

[84].Scott v. Bell Atlantic Corp., 98 N.Y. 2d 314, 746 N.Y.S. 2d 858, 774 N.E. 2d 1190 ( 2002 ).

[85].In Croak v. Bell Atlantic Corp., N.Y.L.J., January 10, 2002, p. 20, col. 4 ( N.Y. Sup. ), the Court dismissed a consumer class action claiming that DSL services were misrepresented as to speed and quality citing as authority Scott v. Bell Atlantic Corp., 282 A.D. 2d 180 ( 1st Dep. 2001 ). The Scott decision was later modified by the Court of Appeals restoring the GBL 349 claim.

[86].Drizin v. Sprint Corporation, 3 A.D. 3d 388, 771 N.Y.S. 2d 82 ( 2004 ).

[87].Gabbay v. Mandel, New York Law Journal, March 10, 2004, p. 19, col. 3 ( N.Y. Sup. ).

[88].Amiekumo v. Vanbro Motors, Inc., 3 Misc. 3d 1101(A) ( Richmond Civ. 2004 ).

[89].Morgan Services, Inc. V. Episcopal Church Home & Affiliates Life Care Community, Inc., 305 A.D. 2d 1106, 757 N.Y.S. 2d 917 ( 2003 ).

[90]. Dunn v. Northgate Ford, Inc., 1 Misc. 3d 911(A)( N.Y. Sup. 2004 ).

[91].Lewis v. Al DiDonna, 294 A.D. 2d 799, 743 N.Y.S. 2d 186 ( 3d Dept. 2002 ).

[92].Cox v. Microsoft Corp., 8 A.D. 3d 39, 778 N.Y.S. 2d 147 ( 1st Dept. 2004 ).

[93]. Kidd v. Delta Funding Corp., 299 A.D. 2d 457, 751 N.Y.S. 2d 267 ( 2002 ).

[94].Walts v. First Union Mortgage Corp., New York Law Journal, April 25, 2000, p. 26,col. 1 ( N.Y. Sup. 2000 ). See also Walts v. First Union Mortgage Corp., 259 A.D. 2d 322, 686 N.Y.S. 2d 428 ( 1999 ), appeal dismissed 94 N.Y. 2d 795, 700 N.Y.S. 2d 424, 722 N.E. 2d 504 ( 1999 )( no private right of action under New York Insurance Law 6503; money had and received, breach of fiduciary duty and tortious interference with contractual relation claims dismissed ).

[95]. Negrin v. Norwest Mortgage, Inc., 263 A.D. 2d 39, 700 N.Y.S. 2d 184 ( 1999 ).

[96]. Trang v. HSBC Mortgage Corp., USA, New York Law Journal, April 17, 2002, p. 28, col. 3 ( Queens Sup. ).

[97].Farino v. Jiffy Lube International, Inc., New York Law Journal, August 14, 2001, p. 22, col. 4 ( N.Y. Sup ).

[98].Goretsky v. Price Movers, New York Law Journal, March 12, 2004, p. 19, col. 3 ( N.Y. Civ. 2004 ).

[99].BNI New York Ltd. v. DeSanto, 177 Misc. 2d 9, 14-15, 675 N.Y.S. 2d 753 ( 1998 ); See also Ricucci v. Business Network Int'l, Index No. SC 8876/97, Decision dated May 5, 1998, Yks. Cty. Ct. (TAD)( professional networking organization fails to deliver " good referrals " to real estate broker ).

[100].Anonymous v. CVS Corp., New York Law Journal, January 8, 2004, p. 19, col. 1 ( N.Y. Sup. ).

[101].Smith v. Chase Manhattan Bank, 293 A.D. 2d 598 ( N.Y. App. Div. 2000 ).

[102].C.T.V., Inc. v. Curlen, New York Law Journal, Dec. 3, 1997, p. 35, col. 1 ( Yks. Cty. Ct.).

[103].Brown v. Hambric, 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ).

[104].Gutterman v. Romano Real Estate, New York Law Journal, Oct. 28, 1998, p. 36, col. 3 ( Yks. Cty. Ct. ).

[105]. Board of Mgrs. Of Bayberry Greens Condominium v. Bayberry Greens Associates, 174 A.D. 2d 595, 571 N.Y.S. 2d 496( 1991 ).

[106]. B.S.L. One Owners Corp. v. Key Intl. Mfg. Inc., 225 A.D. 2d 643, 640 N.Y.S. 2d 135 ( 1996 ).

[107]. Breakwaters Townhouses Ass'n. V. Breakwaters of Buffalo, Inc., 207 A.D. 2d 963, 616 N.Y.S. 2d 829 ( 1994 ).

[108]. Latiuk v. Faber Const. Co., 269 A.D. 2d 820, 703 N.Y.S. 2d 645 ( 2000 ).

[109].Polonetsky v. Better Homes Depot, Inc., 185 Misc. 2d 282, 712 N.Y.S. 2d 801 ( 2000 ), rev'd 279 A.D. 2d 418, 720 N.Y.S. 2d 59 ( 2001 ), rev'd 97 N.Y. 2d 46, 735 N.Y.S. 2d 479, 760 N.E. 2d 1274 ( 2001 ).

[110].Gray v. Seaboard Securities, Inc., 14 A.D. 3d 852, 788 N.Y.S. 2d 471 ( 3d Dept. 2005).

[111].Fesseha v. TD Waterhouse Investor Services, Inc., 193 Misc. 2d 253, 747 N.Y.S. 2d 676 ( 2002 ), aff'd 305 A.D. 2d 268, 761 N.Y.S. 2d 22 ( 1st Dept. 2003 ).

[112]. Berger v. E*Trade Group, Inc., 2000 WL 360092 ( N.Y. Sup. 2000 ).

[113]. Scalp & Blade, Inc. v. Advest, Inc., 291 A.D. 2d 882, 722 N.Y.S. 2d 639 ( 4th Dept. ( 2001 ).

[114].Morelli v. Weider Nutrition Group, Inc., 275 A.D. 2d 607, 712 N.Y.S. 2d 551 ( 2000).

[115].Anunziatta v. Orkin Exterminating Co., Inc., 180 F. Supp. 2d 353 ( N.D.N.Y. 2001 ).

[116].Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris Inc., 2003 WL 22133705 ( 2d Cir 2003 ).

[117]. Kinkopf v. Triborough Bridge and Tunnel Authority, 1 Misc. 3d 417, 764 N.Y.S. 2d 549 ( 2003 )( deceptive practices involve a failure to inform customers who or what is E-Z Pass, which of four different State authorities actually is the contracting party and what the rules are for filing claims and commencing lawsuits;
" having four agencies with four separate procedures when a customer believes he or she has contracted with one totally different entity is a deceptive practice that entitles the claimant to damages of $50.00 " ).

[118].Meachum v. Outdoor World Corp., 235 A.D. 2d 462, 652 N.Y.S. 2d 749 ( 1997 ).

[119].Vallery v. Bermuda Star Line, Inc., 141 Misc. 2d 395, 532 N.Y.S. 2d 965 ( 1988 ) .

[120].Pellegrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995).

[121].People v. P.U. Travel, Inc., New York Law Journal, June 19, 2003, p. 20 ( N.Y. Sup. ).

[122]. Tarantola v. Becktronix, Ltd., Index No: SCR 1615/03, N.Y. Civ., Richmond Cty., March 31, 2004, J. Straniere.

[123]. Bridget Griffin-Amiel v. Frank Terris Orchestras, 178 Misc. 2d 71, 677 N.Y.S. 2d 908 ( 1998 ).

[124].Jacobs, "Bride Wins Lawsuit Over a Switch in Wedding Singers," New York Times Metro Section, Sept. 10, 1998, p. 1.

[125]. DeFina v. Scott, New York Law Journal, February 24, 2003, p. 21, ( N.Y. Sup. ).

[126].Scott v. Bell Atlantic Corp., 98 N.Y. 2d 314, 746 N.Y.S. 2d 858, 774 N.E. 2d 1190 ( 2002 ).

[127]. Card v. Chase Manhattan Bank, 175 Misc. 2d 389, 669 N.Y.S. 2d 117 ( 1996 ).

[128].Card v. Chase Manhattan Bank, 175 Misc. 2d 389, 669 N.Y.S. 2d 117, 121 ( 1996 )

[129].Karlin v. IVF America, Inc., 93 N.Y. 2d 282, 690 N.Y.S. 2d 495, 712 N.E. 2d 662, 665 ( 1999 ).

[130].People v. Lipsitz, 174 Misc. 2d 571, 663 N.Y.S. 2d 468, 475 ( 1997 ).

[131].Pelman v. McDonald's Corp., 2005 U.S. App. LEXIS 1229 ( 2d Cir. 2005 ).

[132].Gale v. International Business Machines Corp., 9 A.D. 3d 446, 781 N.Y.S. 2d 45 ( 2d Dept. 2004 ).

[133]. Millan v. Yonkers Avenue Dodge, Inc., New York Law Journal, Sept. 17, 1996, p. 26, col. 5 ( Yks. Cty. Ct. ).

[134].Automobile manufacturers or dealers may sell consumers new and used car warranties which, typically, are contingent upon an opportunity to cure. Borys v. Scarsdale Ford Inc., New York Law Journal, June 15, 1998, p. 34, col. 4 ( Yks. Cty. Ct. ).

[135]. Denny v. Ford Motor Company, 87 N.Y. 2d 248, 639 N.Y.S. 2d 250, 253-259, 662 N.E. 2d 730 ( 1995 )( comparison of causes of action based upon strict products liability and breach of warranty of merchantability ).

[136].Strict products liability theory applies to new and used car dealers. Nutting v. Ford Motor Company, 180 A.D. 2d 122, 584 N.Y.S. 2d 653 ( 1992 ).

[137]. Ritchie v. Empire Ford Sales Inc., New York Law Journal, Nov. 7, 1996, p. 30, col. 3 ( Yks. Cty. Ct. ).

[138]. Borys v. Scarsdale Ford, Inc., New York Law Journal, June 15, 1998, p. 34, col. 4 ( Yks. Cty. Ct. ).

[139].Giarrantano v. Midas Muffler, 166 Misc. 2d 390, 630 N.Y.S. 2d 656, 659 ( 1995 ).

[140]. Giarrantano v. Midas Muffler, 166 Misc. 2d 390, 630 N.Y.S. 2d 656, 660 ( 1995 ).

[141].New York General Business Law 617(2)(a).

[142].Giarrantano v. Midas Muffler, 166 Misc. 2d 390, 630 N.Y.S. 2d 656, 661 ( 1995 ).

[143].Welch v. Exxon Superior Service Center, New York Law Journal, May 8, 2003, p. 25, col. 2 ( City Ct. 2003 ).

[144].Shalit v. State of New York, 153 Misc. 2d 241, 580 N.Y.S. 2d 836 ( 1992 )

[145].Denny v. Ford Motor Company, 87 N.Y. 2d 248, 638 N.Y.S. 2d 250, 253-259 ( 1995).

[146].Hull v. Moore Mobile Home Stebra, Inc., 214 A.D. 2d 923, 625 N.Y.S. 2d 710, 711 ( 1995 ).

[147].Natale v. Martin Volkswagen, Inc., 92 Misc. 2d 1046, 402 N.Y.S. 2d 156, 158-159 ( 1978 ).

[148].Urquhart v. Philbor Motors, Inc., 9 A.D. 3d 458, 780 N.Y.S. 2d 176 ( 2d Dept. 2004 ).

[149].Tarantino v. DaimlerChrysler Corp., New York Law Journal, October 30, 2000, p. 34, col. 5 ( West. Sup. ).

[150]. DiCinto v. DaimlerChrysler Corp., New York Law Journal, August 30, 2000, p. 24, col. 5 ( N.Y. Sup. ).

[151].Carter-Wright v. DaimlerChrysler Corp., New York Law Journal, August 30, 2000, p. 26.

[150]. DiCintio v. DaimlerChrysler Corp., 2002 WL 257017 ( N.Y. Ct. App. Feb. 13, 2002 ).

[153].Borys v. Scarsdale Ford, Inc., New York Law Journal, June 15, 1998, p. 34, col. 4 ( Yks. Cty. Ct. ).

[154].Levitsky v. SG Hylan Motors, Inc., New York Law Journal, July 3, 2003, p. 27, col. 5 ( N.Y. Civ. 2003 ).

[155].Spielzinger v. S.G. Hylan Motors Corp., New York Law Journal, September 10, 2004, p. 19, col. 3 ( Richmond Civ. 2004 ).

[156].Borys v. Scarsdale Ford, Inc., New York Law Journal, June 15, 1998, p. 34, col. 4 ( Yks. Cty. Ct. ).

[157].Chrysler Motors Corp. v. Schachner, 166 A.D. 2d 683, 561 N.Y.S. 2d 595, 596-597 ( 1990 ).

[158].Matter of General Motors Corp. v. Warner, 5 Misc. 3d 968, 784 N.Y.S. 2d 360 ( Albany Sup. 2004 ).

[159]. Matter of DaimlerChrysler Corp. v. Spitzer, 6 Misc. 3d 228, 782 N.Y.S. 2d 610 ( Albany Sup. 2004 ).

[160].Kucher v. DaimlerChrycler Corp., New York Law Journal, February 20, 2003, p. 23 ( N.Y. Civ. 2003 ).

[161].DaimlerChrysler Corp. v. Karman, 5 Misc. 3d 567, 782 N.Y.S. 2d 343 ( Albany Sup. 2004 ).

[162].B & L Auto Group, Inc. v. Zilog, New York Law Journal, July 6, 2001, p. 21, col. 2 ( N.Y. Civ. 2001 ).

[163]. Barthley v. Autostar Funding LLC, Index No: SC 3618-03, Yonkers Small Claims Court, December 31, 2003, J. Borrelli.

[164].Cintron v. Tony Royal Quality Used Cars, Inc., 132 Misc. 2d 75, 503 N.Y.S. 2d 230 ( 1986 ).

[165]. Millan v. Yonkers Avenue Dodge, Inc., New York Law Journal, Sept. 17, 1996, p. 26, col. 5 ( Yks. Cty. Ct. ).

[166].Armstrong v. Boyce, 135 Misc. 2d 148, 513 N.Y.S. 2d 613, 617 ( 1987 ).

[167].Shortt v. High-Q Auto, Inc., New York Law Journal, December 14, 2004, p. 20, col. 3 ( N.Y. Civ. 2004 ).

[168].Fortune v. Scott Ford, Inc., 175 A.D. 2d 303, 572 N.Y.S. 2d 382 ( 1991 ).

[169].Jandreau v. LaVigne, 170 A.D. 2d 861, 566 N.Y.S. 2d 683 ( 1991 ).

[170].Ireland v. J.L.'s Auto Sales, Inc., 151 Misc. 2d 1019, 574 N.Y.S. 2d 262 ( 1991 ), rev'd 153 Misc. 2d 721, 582 N.Y.S. 2d 603 ( 1992 ).

[171]. Williams v. Planet Motor Car, Inc., New York Law Journal, January 3, 2002, p. 19 ( Kings Civ. Ct. ).

[172].Lipscomb v. Manfredi Motors, New York Law Journal, April 2, 2002, p. 21 ( Richmond Civ. Ct. )

[173]. Williams v. Planet Motor Car, Inc., New York Law Journal, January 3, 2002, p. 19 ( Kings Civ. Ct. ).

[174].Barilla v. Gunn Buick Cadillac-GMC, Inc., 139 Misc. 2d 496, 528 N.Y.S. 2d 273 ( 1988).

[175].Ritchie v. Empire Ford Sales Inc., New York Law Journal, Nov. 7, 1996, p. 30, col. 3 ( Yks. Cty. Ct. ).

[176].People v. Condor Pontiac, 2002 WL 21649689 ( N.Y. Sup. 2003 ).

[177].Williams v. Planet Motor Car, Inc., New York Law Journal, January 3, 2002, p. 19 ( Kings Civ. Ct. )./p>

[178].Coxall v. Clover Commercials Corp., New York Law Journal, June 17, 2004, p. 19, col. 1 ( N.Y. Civ. 2004 ).

[179].Precision Foundations v. Ives, 4 A.D. 3d 589, 772 N.Y.S. 2d 116 ( 3d Dept. 2004 ).

[180].Udezeh v. A+Plus Construction Co., New York Law Journal, October 10, 2002, p. 22 ( N.Y. Civ. 2002 ).

[181]. Garan v. Don & Walt Sutton Builders, Inc., 5 A.D. 3d 349, 773 N.Y.S. 2d 416 ( 2d Dept. 2004 ).

[182].Tri-State General Remodeling Contractors, Inc. v. Inderdai Bailnauth, 194 Misc. 2d 135, 753 N.Y.S. 2d 327 ( 2002 ).

[183].Routier v. Waldeck, 184 Misc. 2d 487, 708 N.Y.S. 2d 270 ( 2000 ).

[184].Cudahy v. Cohen, 171 Misc. 2d 469, 661 N.Y.S. 2d 171 ( 1997 ).

[185]. Moonstar Contractors, Inc. v. Katsir, New York Law Journal, October 4, 2001, p. 19, col. 6 ( N.Y. Civ. )

[186]. Mandioc Developers, Inc. v. Millstone, 164 Misc. 2d 71, 623 N.Y.S. 2d 704 ( 1995 ).

[187].B&F Bldg. Corp. v. Liebig, 76 N.Y. 2d 689, 563 N.Y.S. 2d 40, 564 N.E. 2d 650 ( 1990).

[188]. For a discussion of this statute see Bailey & Desiderio, "New Home Warranty, An Open Question Seeking an Answer, Real Estate Update," New York Law Journal, November 10, 2004, p.5.

[189]. Rosen v. Watermill Development Corp., 1 A.D. 3d 424, 768 N.Y.S. 2d 474 ( 2003 ).

[190].Taggart v. Martano, 282 A.D. 2d 521 ( N.Y. App. Div. 2001 ).

[191]. Testa v. Liberatore, 6 Misc. 3d 126(A)( N.Y. App. Term. 2004 ).

[192]. Randazzo v. Abram Zylberberg, 4 Misc. 3d 109 ( N.Y. App. Term. 2004 ).

[193].Goretsky v. Price Movers, Inc., New York Law Journal, March 12, 2004, p. 19, col. 3 ( N.Y. Civ. 2004 ).

[194].Olukotun v. Reiff, Index No: S.C.R. 232/04, Richmond Cty Civ Ct. July 29, 2004, J. Straniere.

[195].See NCLC Reports, Consumer Credit and Usury Edition, Vol. 23, Dec. 2004, p. 10
( " TILA provides that a credit card issuer is subject to all claims ( except tort claims ) and defenses of a consumer against a merchant when the consumer uses a credit card as a method of payment, if certain conditions are met. This right is essentially the credit card equivalent of the Federal Trade Commission's Holder Rule ( 16 C.F.R. 433 )...A consumer invokes her right as at assert claims or defenses against a card issuer by withholding payment or as a defense in a collection action. The claims or defenses asserted can include claims that also might be raised as a billing error. More importantly, a consumer can use this right to raise a dispute as to the quality of the merchandise or services paid for by the credit card. Note, there is significant confusion about the existence of this right, especially in the context of disputes over the quality of goods or services " ).

[196].Bank of New York v. Walden, 194 Misc. 2d 461, 751 N.Y.S. 2d 341 ( 2002 ).

[197]. Community Mutual Savings Bank v. Gillen, 171 Misc. 2d 535, 655 N.Y.S. 2d 271 ( 1997 ).

[198].Rochester Home Equity, Inc. v. Upton, 1 Misc. 3d 412, 767 N.Y.S. 2d 201 ( 2003 ).

[199]. Nova Information Systems, Inc. V. Labatto, New York Law Journal, August 20, 2004, p. 18, col. 3 ( N.Y. Civ. 2004 ).

[200]. Tyk v. Equifax Credit Information Services, Inc., 195 Misc. 2d 566, 758 N.Y.S. 2d 761 ( 2003 ).

[201].Albank, FSB v. Foland, 177 Misc. 2d 569, 676 N.Y.S. 2d 461 ( 1998 ).

[202].Rochester Home Equity, Inc. v. Upton, 1 Misc. 3d 412, 767 N.Y.S. 2d 201 ( 2003 ).

[203].Dougherty v. North Fork Bank, 301 A.D. 2d 491, 753 N.Y.S. 2d 130 ( 2003 ).

[204].Negrin v. Norwest Mortgage, 263 A.D. 2d 39, 700 N.Y.S. 2d 184 ( 1999 ).

[205].DiMarzo v. Terrace View, New York Law Journal, June 9, 1997, p. 34, col. 3 ( Yks. Cty. Ct. ), remanded on damages only, N.Y.A.T, Decision dated Oct. 27, 1998.

[206]. DiMarzo v. Terrace View, New York Law Journal, June 9, 1997, p. 34, col. 3 ( Yks. Cty. Ct. ), remanded on damages only, N.Y.A.T, Decision dated Oct. 27, 1998.

[207]. New York General Business Law 201(1).

[208]. DiMarzo v. Terrace View, New York Law Journal, June 9, 1997, p. 34, col. 3 ( Yks. Cty. Ct. ), remanded on damages only, N.Y.A.T, Decision dated Oct. 27, 1998.

[209].Tannenbaum v. New York Dry Cleaning, Inc., New York Law Journal, July 26, 2001, p. 19, col. 1 ( N.Y. Civ. Ct. ).

[210]. White v. Burlington Coat Factory, 3 Misc. 3d 1106(A) ( Mt. Vernon Cty Ct 2004 ).

[211].Brown v. Hambric, 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ).

[212].Brown v. Hambric, 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ).

[213].C.T.V., Inc. v. Curlen, New York Law Journal, Dec. 3, 1997, p. 35, col. 1 ( Yks. Cty. Ct.).

[214].Pacurib v. Villacruz, 183 Misc. 2d 850, 705 N.Y.S. 2d 819 ( 1999 ).

[215].See e.g., Brown v. Hambric, 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ); C.T.V., Inc. v. Curlen, New York Law Journal, Dec. 3, 1997, p. 35, col. 1 ( Yks. Cty. Ct. ).

[216].Brown v. Hambric, 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ). Web Page, supra.

[217].Malach v. Chuang, 754 N.Y.S. 2d 835 ( N.Y. Civ. 2002 ).

[218]. Spatz v. Axelrod Management Co., 165 Misc. 2d 759, 630 N.Y.S. 2d 461 ( 1995 ).

[219].Seecharin v. Radford Court Apartment Corp., Index No. SC 3194-95, Yks. Cty. Ct. (TAD), Decision dated June 15, 1995.

[220].Spatz v. Axelrod Management Co., 165 Misc. 2d 759, 764, 630 N.Y.S. 2d 461 ( 1995).

[221].Spatz v. Axelrod Management Co., 165 Misc. 2d 759, 630 N.Y.S. 2d 461 ( 1995 ); Seecharin v. Radford Court Apartment Corp., supra.

[222]. Kachian v. Aronson, 123 Misc. 2d 743 ( 1984 )( 15% rent abatement ).

[223].Spatz v. Axelrod Management Co., 165 Misc. 2d 759, 630 N.Y.S. 2d 461 ( 1995 ).

[224].Goode v. Bay Towers Apartments Corp., 1 Misc. 3d 381, 764 N.Y.S. 2d 583 ( 2003).

[225]. Welch v. New York Sports Club Corp., New York Law Journal, March 21, 2001, p. 19 ( N.Y. Civ. ).

[226]. Hamilton v. Khalife, 289 A.D. 2d 444 ( 2d Dept. 2001 ); Morris v. Snappy Car Rental, 189 A.D. 2d 115 ( 4th Dept. 1993 ).

[227]. Bauman v. Eagle Chase Association, 226 A.D. 2d 488 ( 2d Dept. 1996 ); Filippazzo v. Garden State Brickface Co., 120 A.D. 2d 663 ( 2d Dept. 1986 ).

[228].Gulf Ins. Co. v. Kanen, 13 A.D. 3d 579, 788 N.Y.S. 2d 132 ( 2d Dept. 2004 )

[229].Tannenbaum v. N.Y. Dry Cleaning, New York Law Journal, July 26, 2001, at p. 19 ( N.Y. Civ. ).

[230]. Hacker v. Smith Barney, Harris Upham & Co., 131 Misc. 2d 757 ( N.Y. Civ. 1986 ).

[231].Tsadilas v. Providian National Bank, 2004 WL 2903518 ( 1st Dept. 2004 )
( " Plaintiff may not invoke the type-size requirements of CPLR 4544 because her own claims against defendant depend on paragraph 4 of each credit card agreement, which appears to be in the same size type as the rest of the agreement " )

[232]. Lerner v. Karageorgis Lines, Inc., 66 N.Y. 2d 479, 497 N.Y.S. 2d 894, 488 N.E. 2d 824 ( 1985 ).

[233].Sims v. First Consumers National Bank, 303 A.D. 2d 288, 758 N.Y.S. 2d 284 ( 2003).

[234]. Grossman v. MatchNet, 10 A.D. 3d 577, 782 N.Y.S. 2d 246 ( 1st Dept. 2004 ).

[235]. Mongelli v. Cabral, 166 Misc. 2d 240, 632 N.Y.S. 2d 927 ( 1995 ).

[236]. Mathew v. Klinger, New York Law Journal, October 7, 1997, p. 29, col. 1 ( Yks. City. Ct. ), mod'd 179 Misc. 2d 609, 686 N.Y.S. 2d 549 ( 1998 ).

[237].O'Brien v. Exotic Pet Warehouse, Inc., New York Law Journal, October 5, 1999, p. 35, col. 2 ( Yks. City Ct. ).

[238].Nardi v. Gonzalez, 165 Misc. 2d 336, 630 N.Y.S. 2d 215 ( 1995 ).

[239].Mercurio v. Weber, New York Law Journal, June 30, 2003, p. 33, col. 5 ( N.Y. Civ. 2003 ).

[240].Lewis v. Al DiDonna, 294 A.D. 2d 799, 743 N.Y.S. 2d 186 ( 3d Dept. 2002 ).

[241].Fuentes v. United Pet Supply, Inc., New York Law Journal, September 12, 2000, p. 24, col. 3 ( ( N.Y. Civ. Ct. ).

[242].Saxton v. Pets Warehouse, Inc., 180 Misc. 2d 377, 691 N.Y.S. 2d 872 ( 1999 ).

[243].Smith v. Tate, New York Law Journal, January 29, 1999, p. 35, col. 5 ( N.Y. Civ. ).

[244]. Sacco v. Tate, 175 Misc. 2d 901, 672 N.Y.S. 2d 618 ( 1998 ).

[245].Roberts v. Melendez, New York Law Journal, February 3, 2005, p. 19, col. 1 ( N.Y. Civ. 2005 ).

[246]. People v. Garcia, 3 Misc. 3d 699 ( N.Y. Sup. 2004 ).

[247]. Rossi v. 21st Century Concepts, Inc., 162 Misc. 2d 932, 618 N.Y.S. 2d 182, 185 ( 1994 ).

[248].Rossi v. 21st Century Concepts, Inc., 162 Misc. 2d 932, 618 N.Y.S. 2d 182, 185 ( 1994 ). Compare: Millan v. Yonkers Avenue Dodge, Inc., New York Law Journal, Sept. 17, 1996, p. 26, col. 5 ( Yks. Cty. Ct. )( cooling-off period under Door-To-Door Sales Act does not apply to sale of used cars which is governed, in part, by cure requirements under New York's Used Car Lemon Law ( GBL 198-b )).

[249]. New York Environmental Resources v. Franklin, New York Law Journal, March 4, 2003, p. 27 ( N.Y. Sup. )

[250].Rossi v. 21st Century Concepts, Inc., 162 Misc. 2d 932, 618 N.Y.S. 2d 182 ( 1994 ); New York Environmental Resources v. Franklin, New York Law Journal, March 4, 2003, p. 27 ( N.Y. Sup. ).

[251].Kozlowski v. Sears, New York Law Journal, Nov. 6, 1997, p. 27, col. 3 ( Yks. Cty. Ct. ).

[252]. Filpo v. Credit Express Furniture Inc., New York Law Journal, Aug. 26, 1997, p. 26, col. 4 ( Yks. Cty. Ct. ). Web Page, supra.

[253].Filpo v. Credit Express Furniture Inc., New York Law Journal, Aug. 26, 1997, p. 26, col. 4 ( Yks. Cty. Ct. ). Web Page, supra.

[254].Rossi v. 21st Century Concepts, Inc., 162 Misc. 2d 932, 618 N.Y.S. 2d 182, 187 ( 1994 ).

[255]. Faer v. Verticle Fitness & Racquet Club, Ltd., 126 Misc. 2d 720, 486 N.Y.S. 2d 594 ( N.Y. Civ. 1983 ).

[256]. Nadoff v. Club Central, 2003 WL 21537405 ( N.Y. Civ. 2003 ).

[257].Andin International Inc. v. Matrix Funding Corp., 194 Misc. 2d 719 ( N.Y. Sup. 2003) ( legislative history provides that
" This bill seeks to protect all businessmen from fast talking sales organizations armed with booby traps which they plant in business contracts involving equipment
rentals
").

[258].Tri-State General Remodeling Contractors, Inc. v. Inderdai Bailnauth, 194 Misc. 2d 135, 753 N.Y.S. 2d 327 ( 2002 ).

[259].Routier v. Waldeck, 184 Misc. 2d 487, 708 N.Y.S. 2d 270 ( 2000 ).

[260].Power Cooling, Inc. v. Wassong, 5 Misc. 3d 22, 783 N.Y.S. 2d 741 ( N.Y. App. Term. 2004 ).

[261]. Falconieri v. Wolf, New York Law Journal, January 13, 2004, p. 20, col. 1 ( West. Justice Court 2004 ).

[262]. Cudahy v. Cohen, 171 Misc. 2d 469, 661 N.Y.S. 2d 171 ( 1997 ).

[263].Moonstar Contractors, Inc. v. Katsir, New York Law Journal, October 4, 2001, p. 19, col. 6 ( N.Y. Civ. )

[264].Mindich Developers, Inc. v. Milstein, 164 Misc. 2d 71, 623 N.Y.S. 2d 704 ( 1995 ).

[265]. B&F Bldg. Corp. v. Liebig, 76 N.Y. 2d 689, 563 N.Y.S. 2d 40, 564 N.E. 2d 650 ( 1990).

[266]. B & L Auto Group, Inc. v. Zelig, New York Law Journal, July 6, 2001, p. 21, col. 2 ( N.Y. Civ. 2001 ).

[267].B & L Auto Group, Inc. v. Zelig, New York Law Journal, July 6, 2001, p. 21, col. 2 ( N.Y. Civ. 2001 ).

[268]. Walker v. Winks Furniture, 168 Misc. 2d 265, 640 N.Y.S. 2d 428 ( 1996 ).

[269]. Walker v. Winks Furniture, 168 Misc. 2d 265, 640 N.Y.S. 2d 428 ( 1996 ).

[270]. Walker v. Winks Furniture, 168 Misc. 2d 265, 640 N.Y.S. 2d 428, 430 ( 1996 ). But see Dweyer v. Montalbano's Pool & Patio Center, Inc., New York Law Journal, March 16, 2004, p. 18, col. 3 ( N.Y. Civ. 2004 ) ( " There is nothing in the statute that permits the consumer to rescind the contract; damages are the only remedy under the statute " ).

[271].Walker v. Winks Furniture, 168 Misc. 2d 265, 640 N.Y.S. 2d 428, 431 ( 1996 ).

[272].Walker v. Winks Furniture, 168 Misc. 2d 265, 640 N.Y.S. 2d 428 ( 1996 ).

[273].Dweyer v. Montalbano's Pool & Patio Center, Inc., New York Law Journal, March 16, 2004, p. 18, col. 3 ( N.Y. Civ. 2004 ).

[274].Amiekumo v. Vanbro Motors, Inc., 3 Misc. 3d 1101(A) ( Richmond Civ. 2004 ).

[275].Baker v. Burlington Coat Factory Warehouse, 175 Misc. 2d 951, 673 N.Y.S. 2d 281, 282 ( 1998 ).

[276].Baker v. Burlington Coat Factory Warehouse, 175 Misc. 2d 951, 673 N.Y.S. 2d 281, 282 ( 1998 ).

[277].Baker v. Burlington Coat Factory Warehouse, 175 Misc. 2d 951, 673 N.Y.S. 2d 281, 283 ( 1998 ).

[278].Baker v. Burlington Coat Factory Warehouse, 175 Misc. 2d 951, 673 N.Y.S. 2d 281, 283 ( 1998 ).

[279].On the issue of preemption see Eina Realty v. Class Action Litigationxte, 178 Misc. 2d 80, 679 N.Y.S. 2d 796 ( 1998 )( RPAPL 711 which permits commencement of litigation by landlord within three days of service of rent demand notice is preempted by Fair Debt Collection Practice Act ( 15 U.S.C.A. 1692 )).

[280].Baker v. Burlington Coat Factory Warehouse, 175 Misc. 2d 951, 673 N.Y.S. 2d 281 ( 1998 ).

[281].Dudzik v. Klein's All Sports, 158 Misc. 2d 72, 600 N.Y.S. 2d 1013 ( 1993 ).

[282].Baker v. Burlington Coat Factory Warehouse, 175 Misc. 2d 951, 956-957, 673 N.Y.S. 2d 281 ( 1998 ).

[283].Johnson v. Chase Manhattan Bank USA, N.A., 2 Misc. 3d 1003(A), 784 N.Y.S. 2d 921 ( N.Y. Sup. 2004 ).

[284].Davis v. Rent-A-Center of America, Inc., 150 Misc. 2d 403, 568 N.Y.S. 2D 529 ( 1991).

[285].Sagiede v. Rent-A-Center, New York Law Journal, December 2, 2003, p. 19, col. 3 ( N.Y. Civ. 2003 ).

[286]. Cirillo v. Slomin's Inc., 196 Misc. 2d 922 ( N.Y. Sup. 2003 ).

[287].Malul v. Capital Cabinets, Inc., 191 Misc. 2d 399, 740 N.Y.S. 2d 828 ( 2002 )

[288].Baker v. Burlington Coat Factory Warehouse, 175 Misc. 2d 951, 673 N.Y.S. 2d 281 ( 1998 ).

[289].On the issue of preemption see Eina Realty v. Class Action Litigationxte, 178 Misc. 2d 80, 679 N.Y.S. 2d 796 ( 1998 )( RPAPL 711 which permits commencement of litigation by landlord within three days of service of rent demand notice is preempted by Fair Debt Collection Practice Act ( 15 U.S.C.A. 1692 )).

[290].Dudzik v. Klein's All Sports, 158 Misc. 2d 72, 600 N.Y.S. 2d 1013 ( 1993 ).

[291].Shaw-Crummel v. American Dental Plan, New York Law Journal, March 31, 2003, p. 34, col. 6 ( Nassau Dist. Ct. )

[292]. Telephone Consumer Protection Act of 1991, 47 USC 227.

[293].47 USC 227[b][1][B].

[294].Weiss v. 4 Hour Wireless, Inc., __Misc. 3d __, New York Law Journal, September 7, 2004, p. 18, col. 1 ( N.Y. App. Term 2004 ).

[295]. Kaplan v. First City Mortgage, 183 Misc. 2d 24, 28, 701 N.Y.S. 2d 859 ( 1999 ).

[296]. Kaplan v. Democrat & Chronicle, 266 A.D. 2d 848, 698 N.Y.S. 2d 799 ( 3rd Dept. 1998 ).

[297].Schulman v. Chase Manhattan Bank, 268 A.D. 2d 174, 710 N.Y.S. 2d 368 ( 2000 ). Compare: Charvat v. ATW, Inc., 27 Ohio App. 3d 288, 712 N.E. 2d 805 ( 1998 )( consumer in small claims court has no private right of action under TPCA unless and until telemarketer telephones a person more than once in any 12-month period after the person has informed the telemarketer that he or she does not want to be called ).

[298].See e.g., International Science & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F. 3d 1146 ( 4th Cir. 1997 ); Murphey v. Lanier, 204 F. 3d 911 ( 9th Cir. 2000 ); United Artists Theater Circuit, Inc. v. F.C.C., 2000 WL 33350942 ( D. Ariz. 2000 ).

[299].Miller and Biggerstaff, Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes, 52 Federal Communications Law Journal, 667, 668-669 ( 2000 )
( " The TCPA presents ' an unusual constellation of statutory features '. It provides a federal right to be free from certain types of telephone solicitations and facsimiles ( faxes ), but it does permit a victim to enforce that right in federal court. The TCPA's principal enforcement mechanism is a private suit, but the TCPA does not permit an award of attorney fees to the prevailing party, as do most other private attorney general statutes. The TCPA is practically incapable of forming the basis of a class action..." ).

[300].Kaplan v. Life Fitness Center, Rochester City Court, December 13, 1999.

[301].47 USC 227[b][3].

[302].Antollino v. Hispanic Media Group, USA, Inc., New York Law Journal, May 9, 2003, p. 21, col. 3 ( N.Y. Sup. ).

[303].See Glaberson, "Dispute Over Faxed Ads Draws Wide Scrutiny After $12 Million Award," N.Y. Times Sunday National Section, July 22, 2001, p. 18 ( " The basic damages were set by multiplying the six faxes received by the 1,321 recipients by $500-and then tripling the amount " ).

[304]. Rudgayzer & Gratt v. Enine, Inc., 2002 WL 31369753 ( N.Y. Civ. 2002 ).

[305].Rutgayser & Gratt v. Enine, Inc., 4 Misc. 3d 4 ( N.Y. App. Term 2004 ).

[306].Bonime v. Management Training International, New York Law Journal, February 6, 2004, p. 19, col. 1 ( N.Y. Sup. 2004 ).

[307].Kaplan v. First City Mortgage, 183 Misc. 2d 24, 701 N.Y.S. 2d 859 ( 1999 ).

[308].Kaplan v. First City Mortgage, 183 Misc. 2d 24, 701 N.Y.S. 2d 859 ( 1999 ).

[309].Kaplan v. Life Fitness Center, Rochester City Court, December 13, 1999.

[310].See 13 telemarketers accept fines for violating No Not Call law, The Journal News, March 10, 2002, p. 3A
( " In most cases the settlement is for $1,000 per call, compared with a maximum fine of $2,000 per call. More than 200 more companies are being investigated...More than 4,000 complaints have been field and nearly 2 million households have signed up to bar calls from telemarketers nationwide ". )

[311]. Rudgayser & Gratt v. Enine, Inc., 4 Misc. 3d 4 ( N.Y. App. Term 2004 ).

[312].See Sternlight & Jensen, " Using Arbitration To Eliminate Consumer Class Actions: Efficient Business Practice Or Unconscionable Abuse? ", 67 Law and Contemporary Problems, Duke University Law School, Winter/Spring 2004 Nos. 1 & 2, pp. 77-78
( " Companies are increasingly drafting arbitration clauses worded to prevent consumers from bringing class actions against them in either litigation or arbitration. If one looks at the form contracts she received regarding her credit card, cellular phone, land phone, insurance policies, mortgage and so forth, most likely, the majority of those contracts include arbitration clauses, and many of those include prohibitions on class actions. Companies are seeking to use these clauses to shield themselves from class action liability, either in court or in arbitration.. .numerous courts have held that the inclusion of a class action prohibition in an arbitration clause may render that clause unconscionable ( reviewing cases ) " ).

[313].See e.g., Green Tree Financial Corp. v. Bazzle, 539 U.S. 444, 123 S. Ct. 2402, 156 L. Ed. 2d 414 ( 2003 )( class wide arbitration permissible unless expressly prohibited in arbitration agreement; remand for arbitrator's decision on whether class action procedures are available ); Green Tree Financial Corp. V. Randolph, 531 U.S. 79, 121 S. Ct. 513, 148 L. Ed. 2d 373 ( 2000 )( arbitration clause which is silent on fees and costs in insufficient to render agreement unreasonable ); Shearson American Express, Inc. V. McMahon, 482 U.S. 220, 107 S. Ct. 2332, 96 L. Ed. 2d 185 ( 1987 ).

[314].See e.g., Ball v. SFX Broadcasting, Inc., 165 F. Supp. 2d 230 ( N.D.N.Y. 2001 )( costs of arbitration would preclude enforcement of statutory claims ); Specht v. Netscape Communications Corp., 150 F. Supp. 2d 585 ( S.D.N.Y. 2001 )( consumers not bound by arbitration agreement in software agreement ); Lewis Tree Service, Inc. V. Lucent Technologies, Inc., 2000 WL 1277303 ( S.D.N.Y. 2000 )( named plaintiff's claims dismissed; arbitration agreement enforced ).

[315]. See e.g., Tsadilas v. Providian National Bank, 2004 WL 2903518 ( 1st Dept. 2004 )
( " The arbitration provision is enforceable even though it waives plaintiff's right to bring a class action...The arbitration provision alone is not unconscionable because plaintiff had the opportunity to opt out without any adverse consequences...Arbitration agreements are enforceable despite an inequality in bargaining position " );
Brown & Williamson v. Chesley, 7 A.D. 3d 368, 777 N.Y.S. 82, 87-88 ( 1st Dept. 2004 )( " Consistent with the public policy favoring arbitration, the grounds for vacating an arbitration award are narrowly circumscribed by statute " ), rev'g 194 Misc. 2d 540, 749 N.Y.S. 2d 842 ( 2002 )( trial court vacated an arbitrator's award of $1.3 billion of which $625 million was to be paid to New York attorneys in the tobacco cases ); Ranieri v. Bell Atlantic Mobile, 304 A.D. 2d 353, 759 N.Y.S. 2d 448 ( 1st Dept. 2003 )( class action stayed pending arbitration;
" Given the strong public policy favoring arbitration...and the absence of a commensurate policy favoring class actions, we are in accord with authorities holding that a contractual proscription against class actions...is neither unconscionable nor violative of public policy " );
In re Application of Correction Officer's Benevolent Ass'n, 276 A.D. 2d 394, 715 N.Y.S. 2d 387 ( 1st Dept. 2000 )( parties agreed to class wide arbitration in interpreting a clause in collective bargaining agreement providing military leaves with pay ); Brower v. Gateway 2000, Inc., 246 A.D. 2d 246, 676 N.Y.S. 2d 569 ( 1st Dept. 1998 )( arbitration and choice of law clause enforced; arbitration before International Chamber of Commerce was, however, substantively unconscionable ); Hackel v. Abramowitz, 245 A.D. 2d 124, 665 N.Y.S. 2D 655 ( 1ST Dept. 1997 )( although the issue as to the arbitrability of the controversy is for the court, and not the arbitrator, to decide, a party who actively participated in the arbitration is deemed to have waived the right to so contend ); Spector v. Toys "R" Us, New York Law Journal, April 1, 2004, p. 20, col. 1 ( Nassau Sup. )( motion to add credit card issuing bank as necessary party denied; arbitration clause does not apply ); Johnson v. Chase Manhattan Bank, USA, N.A., 2 Misc. 3d 1003 ((A)( N.Y. Sup. 2004 )( class bound by unilaterally added mandatory arbitration agreement and must submit to class arbitration pursuant to agreement and Federal Arbitration Act ); Rosenbaum v. Gateway, Inc., 4 Misc. 3d 128(A), 2004 WL 1462568 ( N.Y.A.T. 2004 ) arbitration clause in computer " Standard Terms of Sale and Limited Warranty Agreement " enforced and small claims court case stayed ); Flynn v. Labor Ready, Inc., 2002 WL 31663290 ( N.Y. Sup. )( class of employees challenge propriety of " receiving their wages by...cash voucher " which could only be cashed by using the employer's cash dispensing machine and paying as much as $1.99 per transaction; action stayed and enforced arbitration clause after employer agreed to pay some of the costs of arbitration ); Licitra v. Gateway, Inc., 189 Misc. 2d 721, 734 N.Y.S. 2d 389 ( Richmond Sup. 2001 )( arbitration clause in consumer contract not enforced ) Berger v. E Trade Group, Inc., 2000 WL 360092 ( N.Y. Sup. 2000 )( misrepresentations by online broker " in its advertising and marketing materials, knowingly exaggerated the sophistication of its technology and its capacity to handle its customers transactions "; arbitration agreement enforced ); Hayes v. County Bank, 185 Misc. 2d 414, 713 N.Y.S. 2d 267 ( N.Y. Sup. 2000 )( unconscionable " payday " loans; motion to dismiss and enforce arbitration clause denied pending discovery on unconscionability ); Carnegie v. H & R Block, Inc., 180 Misc. 2d 67, 687 N.Y.S. 2d 528, 531 ( N.Y. Sup. 1999 )( after trial court certified class, defendant tried to reduce class size by having some class members sign forms containing retroactive arbitration clauses waiving participation in class actions ), mod'd 269 A.D. 2d 145, 703 N.Y.S. 2d 27 ( 1st Dept. 2000 )( class certification denied ).

[316].Oxman v. Amoroso, 172 Misc. 2d 773, 659 N.Y.S. 2d 963 ( Yonkers Cty Ct 1997 ).

[317].Scarella v. America Online 4 Misc. 3d 1024(A) ( N.Y. Civ. 2004 )

[318].Gates v. AOL Time Warner, Inc., 2003 WL 21375367 ( N.Y. Sup. 2003 )./p>

[319].For a history of the use of Article 9 see

[320].See Dickerson, Class Actions: The Law of 50 States, Law Journal Press, 1981-2005; Weinstein, Korn & Miller, New York Civil Practice, Article 9.

[321].For a description of Article 9 consumer class action cases from 1976 to 1995 see Dickerson, :Consumer Class Actions," INCL Journal, N.Y.S.B.A., Dec. 1987 Issue ( various authors ) and Justice Dickerson's annual class action summaries published in the New York Law Journal. See e.g., Dickerson & Manning, "A Summary of Article 9 Class Actions in 2003," N.Y.L.J., April 7, 2004, p. 1.

[322].For more on New York State class actions see Dickerson, Class Actions: The Law of 50 States, Law Journal Press, N.Y., 1988-2005 and Justice Dickerson's soon to be published revision of Article 9 of New York Civil Practice, CPLR ( Weinstein, Korn & Miller ).

[323].Karlin v. IVF America, Inc., 93 N.Y., 2d 282, 690 N.Y.S. 2d 495, 712 N.E. 2D 662 ( 1999 )( G.B.L. 349 claim sustained ).

[324].McKinnon v. International Fidelity Ins. Co., 182 Misc. 2d 517, 704 N.Y.S. 2d 774 ( N.Y. Sup. 2000 ) ( fraud and G.B.L. 349 claims sustained )

[325].Rice v. Penguin Putnam, Inc., 2001 WL 1606752 ( 2d Dept. 2001 ) ( complaint dismissed ).

[326].Englade v. HarperCollins Publishers, Inc., 2001 WL 1637491 ( 1st Dept. 2001 ) ( certification granted ).

[327].Lacoff v. Buena Vista Publishing, Inc., 183 Misc. 2d 600, 705 N.Y.S. 2d 183 ( N.Y. Sup. 2000 )( complaint dismissed ).

[328]. Frank v. DaimlerChrylser Corp., 292 A.D. 2d 118, 741 N.Y.S. 2d 9 ( 1st Dept. 2002) ( complaint dismissed ); Banks v. Carroll & Graf Publishers, Inc., 1999 WL 1126501 ( 1st Dept. 1999 ) ( certification denied ).

[329]. Farino v. Jiffy Lube International, Inc., N.Y.L.J., Aug. 14, 2001, p. 22, col. 3 ( Suff. Sup. ) ( claims sustained; G.B.L. 349 does not require an underlying private right of action ).

[330].Gordon v. Ford Motor Co., 260 A.D. 2d 164, 687 N.Y.S. 2d 369 ( 1st Dept. 1999 )( certification denied ).

[331].Drogin v. General Electric Capital, 238 A.D. 2d 272, 657 N.Y.S. 2d 28 ( 1st Dept. 1996 ) ( settlement approved ).

[332].Faden Bayes Corp. v. Ford Motor Corp., Index Number 601076/97, N.Y. Sup. ) ( complaint dismissed ).

[333].Jurman v. Sun Company, Inc., N.Y.L.J., Aug. 8, 1997, p. 21, col. 4 ( N.Y. Sup. ) ( complaint dismissed; federal preemption ).

[334].Branch v. Crabtree, 197 A.D. 2d 557, 603 N.Y.S. 2d 490 ( 2d Dept. 1993 )( certification granted )

[335].Gershon v. Hertz Corp., 215 A.D. 2d 202, 626 N.Y.S. 2d 80 ( 1st Dept. 1995 ) ( complaint dismissed ).

[336].Weinberg v. Hertz Corp., 116 A.D. 2d 1, 499 N.Y.S. 2d 692 ( 1st Dept. 1986 ), aff'd 69 N.Y. 2d 979, 516 N.Y.S. 2d 652, 509 N.E. 2d 347 ( 1987 )( certification granted ); Lewis v. Hertz Corp., 212 A.D. 2d 476, 624 N.Y.S. 2d 800 ( 1st Dept. 1995 ) ( class decertified ); Super Glue Corp. v. Avis Rent-A-Car System, Inc., 132 A.D. 2d 604, 517 N.Y.S. 2d 764 ( 2d Dept. 1987 )( no affirmative cause of action available for bad faith dealings or unconscionability ).

[337].Zuckerman v. BMG Direct Marketing, Inc., N.Y.L.J., July 13, 2000, p. 28, col. 1 ( N.Y. Sup. )( complaint dismissed ).

[338].Cox v. Microsoft Corp., 8 A.D. 3d 39, 778 N.Y.S. 2d 147 ( 1st Dept. 2004 )( unjust enrichment and G.B.L. 349 claims sustained ).

[339].Scott v. Bell Atlantic, 98 N.Y. 2d 314, 746 N.Y.S. 2d 858, 774 N.E. 2d 1190 ( 2002 )( G.B.L. 349 class actions limited to New York residents exposed to deceptive act in New York State ); Solomon v. Bell Atlantic Corp., 9 A.D. 3d 49, 777 N.Y.S. 2d 50 ( 1st Dept. 2004 )( class decertified ).

[340].Truschel v. Juno Online Services, Inc., N.Y.L.J., Dec. 12, 2002, p. 21, col. 4 ( N.Y. Sup. )( G.B.L. 349 claim dismissed ).

[341].Wornow v. Register.Com, Inc., 8 A.D. 3d 59, 778 N.Y.S. 2d 25 ( 1st Dept. 2004 )( money had and received claim sustained ).

[342].Gates v. AOL Time Warner Inc., 2003 WL 21375367 ( N.Y. Sup. 2003 )( Virginia forum selection enforced ).

[343].Strishak v. Hewlett Packard Company, 300 A.D. 2d 608, 752 N.Y.S. 2d 200 ( 2d Dept. 2002 )( complaint dismissed ).

[344].Ades v. Microsoft Corp., N.Y.L.J., Oct. 9, 2001, p. 27, col. 1 ( Kings Sup. )( claims for breach of contract and injunctive relief sustained ).

[345].DiLorenzo v. America Online, Inc., N.Y.L.J., February 8, 1999, p. 28, col. 5 ( N.Y. Sup. ) ( complaint dismissed; forum selection clause enforced )

[346].Brower v. Gateway 2000, Inc., 246 A.D. 2d 246, 676 N.Y.S. 2d 569 ( 1st Dept. 1998 ) ( forum selection clause and arbitration clause enforced in part ).

[347]. Brummel v. Leading Edge Products, Inc., N.Y.L.J., Feb. 19, 1998, p. 28, col. 1 ( N.Y. Sup. ) ( summary judgment for defendant; certification denied ).

[348].Daex Corp. v. I.B.M., N.Y.L.J., Dec. 14, 1998, p. 29, col. 3 ( N.Y. Sup. )( plaintiffs strike class allegations ).

[349].Brown v. Ford Motor Co., N.Y.L.J., April 17, 1998, p. 26, col. 6 ( N.Y. Sup. ) ( complaint dismissed ).

[350].Catalano v. Heraeus Kulzer, Inc., 305 A.D. 2d 356, 759 N.Y.S. 2d 159 ( 2d Dept. 2003 )( certification denied ); Rivkin v. Kulzer, 2001 WL 1557814 ( 1st Dept. 2001 )( certification denied ).

[351].Asher v. Abbott Laboratories, 290 A.D. 2d 208, 737 N.Y.S. 2d 4 ( 1st Dept. 2002 )( class allegations dismissed ).

[352]. Gross v. Ticketmaster LLC, 5 Misc. 3d 1005(A)( N.Y. Sup. 2004 )( certification granted ).

[353].Castillo v. Tyson, 268 A.D. 2d 336, 701 N.Y.S. 2d 423 ( 1st Dept. 2000 ) ( complaint dismissed ).

[354]. Donohue v. Ferolito, Vultaggio & Sons, 2004 WL 2749313 ( 1st Dept. 2004 )( complaint dismissed ).

[355].Lieberman v. 293 Mediterranean Market Corp., 303 A.D. 2d 560, 756 N.Y.S. 2d 469 ( 2d Dept. 2003 )( certification denied ).

[356].Klein v. Robert's American Gourmet Foods, No. 006956/02 ( Nassau Sup. Jan. 14, 2003 )( settlement approved ).

[357].Morelli v. Weider Nutrition Group, Inc., 275 A.D. 2d 607, 712 N.Y.S. 2d 551 ( 1st Dept. 2000 )( claims not preempted ).

[358].Bernard v. Gerber Food Products Co., 938 F. Supp. 218 ( S.D.N.Y. 1996 )( remanded to state court ); McGowan v. Cadbury Schwepps, PLC, 941 D. Supp. 344 ( S.D.N.Y. 1996 )( case remanded to state court ).

[359]. Heller v. Coca-Cola Co., 230 A.D. 2d 768, 646 N.Y.S. 2d 524 ( 1st Dept. 1996 ) ( complaint dismissed; federal preemption ).

360].Zoll v. Suffolk Regional OTB, 259 A.D. 2d 696, 686 N.Y.S. 2d 858 ( 1st Dept. 1999 )( complaint dismissed ).

[361].Morgan v. A.O. Smith Corp., 233 A.D. 2d 375, 650 N.Y.S. 2d 748 ( 4th Dept. 1996 )( certification denied ).

[362].Meraner v. Albany Medical Center, 211 A.D. 2d 867, 621 N.Y.S. 2d 208 ( 3d Dept. 1995 ) ( certification denied ).

[363].Colon v. Rent-A-Center, Inc., 2000 N.Y. App. Div. LEXIS 11269 ( 1st Dept. 2000 ) ( G.B.L. 349 claim sustained )/p>

[364].Hazelhurst v. Brita Products Co., 295 A.D. 2d 240, 744 N.Y.S. 2d 31 ( 1st Dept. 2002) ( class decertified ).

[365]. Matter of Coordinated Title Insurance Cases, 2 Misc. 3d 1007(A) ( Nassau Sup. 2004 )( certification granted ).

[366].Goshen v. The Mutual Life Ins. Co., 98 N.Y. 2d 314, 746 N.Y.S. 2d 858, 774 N.E. 2d 1190 ( 2002 )( G.B.L. 349 class actions should be limited to New York residents exposed to deceptive act in New York State ); Gaidon v. Guardian Life Ins. Co., 96 N.Y. 2d 201, 727 N.Y.S. 2d 30, 750 N.E. 2d 1078 ( 2001 )( G.B.L. 349 claims governed by three year statute of limitations in CPLR 214(2) );DeFilippo v. Mutual Life Ins. Co., 2004 WL 2902570 ( 1st Dept. 2004 )( class decertified ); Russo v. Massachusetts Mutual Life Ins. Co., 192 Misc. 2d 349, 746 N.Y.S. 2d 380 ( 2002 )( certification denied ).

[367].Goldman v. Metropolitan Life Ins. Co., 2004 WL 2984366 ( 1st Dept. 2004 )( claims dismissed ).

[368].Makastchian v. Oxford Health Plans, Inc., 270 A.D. 2d 24, 704 N.Y.S. 2d 44 ( 1st Dept. 2000 )( certification granted ).

[369].Sterling v. Ackerman, 244 A.D. 2d 170, 663 N.Y.S. 2d 842 ( 1st Dept. 1997 ) ( claims sustained; discovery on class issues ).

[370].Kenavan v. Empire Blue Cross, 248 A.D. 2d 42, 677 N.Y.S. 2d 560 ( 1st Dept. 1998 ) ( certification granted; summary judgement for class ).

[371].Mazzocki v. State Farm Fire & Casualty Co., 170 Misc. 2d 70, 649 N.Y.S. 2d 656 ( N.Y. Sup. 1996 ) ( motion to change venue granted ).

[372].Tuchman v. Equitable Companies, Inc., N.Y.L.J., July 18, 1996, p. 26, col. 5 ( N.Y. Sup. ) ( complaint dismissed ).

[373].Empire Blue Cross Customer Litigation, N.Y.L.J. Oct. 12, 1995, p. 28, col. 6 ( N.Y. Sup. ) ( certification denied ).

[374].Ho v. Visa USA, Inc., 3 Misc. 3d 1105(A)( N.Y. Sup. 2004 ) ( class certification not appropriate; G.B.L. 340, 349 claims dismissed ).

[375].Sims v. First Consumers National Bank, 303 A.D. 2d 288, 758 N.Y.S. 2d 284 ( 1st Dept. 2003 )( G.B.L. 349 claim sustained ).

[376]. Broder v. MBNA, 281 A.D. 2d 369, 722 N.Y.S. 2d 524 ( 1st Dept. 2001 (certification granted ); Broder v. MBNA, N.Y. Sup. Index No: 605153/98, J. Cahn, Decision April 10, 2003 ( settlement approved ).

[377].Taylor v. American Banker's Insurance Group, 267 A.D. 2d 178, 700 N.Y.S. 2d 458 ( 1st Dept. 1999 ) ( certification granted to nationwide class ).

[378].Hayes v. County Bank, 2000 WL 1410029 ( N.Y. Sup. 2000 ) ( arbitration clause not enforced pending discovery on unconscionability ).

[379]. Dougherty v. North Fork Bank, 301 A.D. 2d 491, 753 N.Y.S. 2d 130 ( 2d Dept. 2003) ( summary judgment for plaintiffs on fax and quote fees ).

[380].Negrin v. Norwest Mortgage, Inc., 293 A.D. 2d 726, 741 N.Y.S. 2d 287 ( 1st Dept. 2002 )( certification denied ); Trang v. HSBC Mortgage Corp., N.Y.L.J., April 17, 2002, p. 28, col. 3 ( N.Y. Sup. )( defendant's summary judgment motion denied ).

[381].Stutman v. Chemical Bank, 95 N.Y. 2d 24, 709 N.Y.S. 2d 892, 731 N.E. 2d 608 ( 2000 ) ( complaint dismissed; reliance not a necessary element of G.B.L. 349 claim ).

[382].Kidd v. Delta Funding Corp., 270 A.D. 2d 81, 704 N.Y.S. 2d 66 ( 1st Dept. 2000 )( motion to change venue granted ); Kidd v. Delta Funding Corp., 2000 N.Y. Misc. LEXIS 378 ( N.Y. Sup. 2000 ) ( certification granted ).

[383].Walts v. First Union Mortgage Corp., N.Y.L.J., April 25, 2000, p. 26, col. 1 ( N.Y. Sup. 2000 ) ( certification granted ); Bauer v. Mellon Mortgage Co., N.Y.L.J., Aug. 14, 1998, p. 21, col. 5 ( N.Y. Sup. )( breach of contract and G.B.L. 349 claims sustained ).

[384].LeRose v. PHH US Mortgage Corp., 170 Misc 2d 858, 652 N.Y.S. 2d 484 ( N.Y. Sup. 1996 ) ( settlement disapproved ).

[385].Abramovitz v. The New York Times, Index No. 114272/96, N.Y. Sup., J. Ramos, Decision July 2, 1997 ( certification denied; claims mooted by receipt of credit ).

[386].Fleming v. Barnswell Nursing Home, 309 A.D. 2d 1132, 766 N.Y.S. 2d 241 ( 3d Dept. 2003 )( certification granted to Public Health Law 2801-d claim ).

[387].Archer v. Schering-Plough Corp., Index No. 603336/97, N.Y. Sup. ( complaint dismissed )

[388].Kramer v. Bausch & Lomb, 264 A.D. 2d 596, 695 N.Y.S. 2d 553 ( 1st Dept. 1999 ) ( claims not preempted by federal Food, Drug and Cosmetics Act ); Lattig v. Bausch & Lomb, N.Y.L.J., Jan. 7, 1997, p. 26, col. 4 ( N.Y. Sup. )( fraud and G.B.L. 349 claims sustained ).

[389].Mountz v. Global Vision Products, Inc., 3 Misc. 3d 171 ( N.Y. Sup. 2003 )( motion to strike class allegations denied ).

[390].Samuel v. Ciba-Geigy Corp., N.Y.L.J., May 20, 1997, p. 26, col. 1 ( N.Y. Sup. ) ( complaint dismissed; FTC primary jurisdiction ).

[391].Caesar v. Chemical Bank, 66 N.Y. 2d 698, 496 N.Y.S. 2d 418, 487 N.E. 2d 275 ( 1985) ( unauthorized use of pictures of employees; certification granted ).

[392].Anonymous v. CVS Corp., 293 A.D. 2d 285, 739 N.Y.S. 2d 565 ( 1st Dept. 2002 )( certification granted ).

[393].Smith v. Chase Manhattan Bank USA, 293 A.D. 2d 598, 741 N.Y.S. 2d 100 ( 1st Dept. 2002 )( complaint dismissed ).

[394].Strategic Risk Management, Inc. v. Federal Express Corp.,253 A.D. 2d 167, 686 N.Y.S. 2d 35 ( 1st Dept. 1999 ) ( complaint dismissed ).

[395].Carnegie v. H & R Block, Inc., 269 A.D. 2d 145, 703 N.Y.S. 2d 27 ( 1st Dept. 2000 )( certification denied; breach of fiduciary duty claim dismissed ).

[396].Ackerman v. Price Waterhouse, 1998 WL 851946 ( N.Y. App. Div. 1998 ) ( certification granted ).

[397].Ganci v. Cape Canaveral Tour And Travel, Inc., 4 Misc. 3d 1003(A) ( Kings Sup. 2004 )( certification denied ); Giovanniello v. Hispanic Media Group USA, 4 Misc. 3d 440, 780 N.Y.S. 2d 720 ( Nassau Sup. 2004 )( certification denied ).

[398].Amalfitano v. Sprint Corp., 4 Misc. 3d 1027(A)( N.Y. Sup. 2004 ).

[399]. Drizin v. Sprint Corp., 2004 WL 2591249 ( 1st Dept. 2004 ) ( certification granted ).

[400].Peck v. AT&T Corp., N.Y.L.J., August 1, 2002, p. 18, col. 3 ( N.Y. Sup. )( settlement approved ).

[401].Ranieri v. Bell Atlantic Mobile, 304 A.D. 2d 353, 759 N.Y.S. 2d 448 ( 1st Dept. 2003) ( class certification stayed pending arbitration ).

[402].Naevus v. AT&T Corp., 282 A.D. 2d 171, 724 N.Y.S. 2d 721 ( 1st Dept. 2001 ) (failure to extend credit claims not preempted ).

[403].Judicial Title Insurance Agency v. Bell Atlantic, N.Y.L.J., July 1, 1999, p. 35, col. 1 ( West. Sup. ) ( certification granted ).

[404].Kahn v. Bell Atlantic NYNEX Mobile, N.Y.L.J., June 4, 1998, p. 29, col. 2 ( N.Y. Sup. ) ( settlement disapproved ).

[405].Lauer v. New York Telephone Co, 231 A.D. 2d 126, 659 N.Y.S. 2d 359 ( 1st Dept. 1997 ) ( certification granted ).

[406].Porr v. MYNEX Corp., 230 A.D. 2d 564, 660 N.Y.S. 2d 440 ( 1st Dept, 1997 ) ( complaint dismissed )

[407].Sirica v. Cellular Telphone Co., 231 A.D. 2d 470, 647 N.Y.S. 2d 219 ( 1st Dept. 1996) ( certification denied ).

[408].Lennon v. Philip Morris Co., 2001 WL 1535877 ( N.Y. Sup. 2001 )( price fixing claim under Donnelly Act dismissed; certification denied pursuant to C.P.L.R. 901(b) ).

[409]. Small v. Lorillard Tobacco Co., 94 N.Y. 2d 43, 698 N.Y.S. 2d 615, 720 N.E. 2d 892 ( 1999 ) ( certification denied; G.B.L. 349 claim dismissed ).

[410].Castellucci v. Toys "R" US, Inc., N.Y.L.J., Aug. 9, 2001, p. 21, col. 5 ( West. Sup. ) ( certification denied ).

[411].Colbert v. Rank America, Inc., 295 A.D. 2d 302, 742 N.Y.S. 2d 905 ( 2d Dept. 2002 )( motion to decertify denied ).

[412].Liechtung v. Tower Air, Inc., 269 A.D. 2d 363, 702 N.Y.S. 2d 111 ( 2d Dept. 2000 ) ( certification granted )

[413].Dunleavy v. New Hartford Central School, 266 A.D. 2d 931, 697 N.Y.S. 2d 446 ( 4th Dept. 1999 ) ( summary for defendant granted )

[414].Cronin v. Cunard Line Limited, 250 A.D. 2d 486, 672 N.Y.S. 2d 864 ( 1st Dept. 1998 ) ( complaint dismissed )./p>

[415].Parra v. Tower Air, Inc., N.Y.L.J., July 22, 1999, p. 30, col. 1 ( N.Y. Sup. 1999 ) ( claims preempted ).

[416].Dillon v. U-A Columbia Cablevision, 100 N.Y. 2d 525, 760 N.Y.S. 2d 726, 790 N.E. 2d 1155 ( 2003 )( complaint dismissed ).

[417]. Mazzocki v. State Farm Fire & Casualty Corp., 1 A.D. 3d 9, 766 N.Y.S. 2d 719 ( 3d Dept. 2003 )( certification denied ).

[418].Freeman v. Great Lakes Energy Partners, 12 A.D. 3d 1170, 785 N.Y.S. 2d 640 ( 4th Dept. 2004 )( certification granted ).

[419]. Englade v. HarperCollins Publishers, Inc. 289 A.D. 2d 159, 734 N.Y.S. 2d 176 ( 1st Dept. 2001 )( certification granted ); Stellema v. Vantage Press, Inc., 109 A.D. 2d 423, 492 N.Y.S. 2d 390 ( 1st Dept. 1985 )( certification granted ).

[420].Liechtung v. Tower Air, Inc., 269 A.D. 2d 363, 702 N.Y.S. 2d 111 ( 1st Dept. 2000 )( certification granted ).

[421].Broder v. MBNA Corp., 281 A.D. 2d 369, 722 N.Y.S. 2d 524 ( 1st Dept. 2001 )( certification granted ).

[422].Colbert v. Rank America, Inc., 273 A.D. 2d 209, 709 N.Y.S. 2d 449 ( 2d Dept. 2000) ( certification granted ).

[423].Gross v. Ticketmaster, 5 Misc. 3d 1005(A) ( N.Y. Sup. 2004 )( certification granted ).

[424]. Amalfitano v. Sprint Corp., 4 Misc. 3d 1027(A) ( Kings Sup. 2004 )( certification granted ).

[425].Jacobs v. Bloomingdales, Inc., N.Y.L.J., May 27, 2003, p. 23, col. 1 ( Nassau Sup. 2003 ) ( certification granted to unpaid wage claim ).

[426].Mimnorm Realty v. Sunrise Federal, 83 A.D. 2D 936, 442 N.Y.S. 2d 780 ( 2d Dept. 1981 )( certification granted ).

[427]. Guadagno v. Diamond Tours & Travel, Inc., 89 Misc. 2d 697, 392 N.Y.S. 2d 783 ( N.Y. Sup. 1976 )( certification granted ).

[428].See e.g., DeFilippo v. Mutual Life Ins. Co., 2004 WL 2902570 ( 1st Dept. 204 )( vanishing life insurance premium class action decertified because oral sales presentations created a predominance of individual issues ); Broder v. MBNA Corp., 281 A.D. 2d 369, 722 N.Y.S. 2d 524 ( 1st Dept. 2001 )( " Plaintiff's allegations of deceptive acts are based on identical written solicitations " ); Carnegie v. H & R Block, Inc., 269 A.D. 2d 145, 703 N.Y.S. 2d 27 ( 1st Dept. 2000 )( " oral communications that allegedly induced [ consumers ] to obtain RALs cannot be proven on a class basis, but would require individualized proof " ); Taylor v. American Bankers Insurance Group, 267 A.D. 2d 178, 700 N.Y.S. 2d 458, 459 ( 1st Dept. 1999 )
( " Although defendants contend that they used a variety of forms and promotions...the solicitations in question did not differ materially...given the uniformity of defendant's offers of coverage, any matters relating to individual reliance and causation are relatively insignificant " ).


[429]. See e.g., Mazzocki State Farm Fire & Casualty Corp. 1 A.D. 3d 9, 766 N.Y.S. 2d 719,( 3d Dept. 2003 )( " the individualized damages of the resulting class members would not preclude class certification " ); Broder v. MBNA Corp., 281 A.D. 2d 369, 722 N.Y.S. 2d 524 ( 1st Dept. 2001 )
( " Plaintiff alleges that defendant's practice of allocating credit card payment to cash advances, which were subject to a promotional annual percentage rate (APR) before the balance generated by purchases, which was subject to a significantly higher APR, deprived credit cardholders of the full benefit of the promotional rate, thereby rendering the promotion deceptive... allegations of deceptive acts are based on identical written solicitations and the particular damages of each class member can be easily computed ";certification granted );
Englade v. HarperCollins Publishers, Inc., 289 A.D. 2d 159, 734 N.Y.S. 2d 176 ( 1st Dept. 2001 )( " That individual authors may have differing levels of damages does not defeat class certification " ); Puckett v. Sony Music Entertainment, New York Law Journal, August 8, 2002, p. 18, col. 2 ( N.Y. Sup. 2002 )
( " The class members' differing royalties may require individualized calculations of damages. However, it does not appear at this juncture that these calculations would be unduly difficult and so this fact will not prevent the certification of a class action " );
Gilman v. Merrill Lynch Pierce Fenner & Smith, 93 Misc. 2d 941, 944, 404 N.Y.S. 2d 258 ( N.Y. Sup. 1978 )
( " While the amounts potentially recoverable by each member of the class may differ, such circumstance is not sufficient to warrant denial of class status " );
Guadagno v. Diamond Tours & Travel, Inc., 89 Misc. 2d 697, 392 N.Y.S. 2d 783,( N.Y. Sup. 1996 )( " That there may also exist individual questions with regard to...damages is not
dispositive
").

[430].See e.g., Compact Electra Corp. v. Paul, 98 Misc. 2d 807, 403 N.Y.S. 2d 611 ( N.Y.A.T. 1997 )( fraud counterclaim class action may be certifiable if the oral misrepresentations were based on ' canned ' techniques ).

[431].See e.g., Friar v. Vanguard Holding Corp., 78 A.D. 2d 83, 87-88, 434 N.Y.S. 2d 696 ( 2d Dept. 1986 )
( " The doctrine of quasi contract embraces a wide spectrum of legal actions resting ' upon the equitable principal that a person shall not be allowed to enrich himself unjustly at the expense of another...[I]t is not a contract or promise at all...[but] an obligation which the law creates, in the absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience, he ought not to retain...and which ex aequo et bono belongs to another " ).
[432]. Cox v. Microsoft Corp., 8 A.D. 3d 39, 40, 778 N.Y.S. 2d 147 ( 1st Dept. 2004 )
( " plaintiffs' allegations that Microsoft's deceptive practices caused them to pay artificially inflated prices for its products state a cause of action for unjust
enrichment
" ).

[433].Anonymous v. CVS Corporation, 293 A.D. 2d 285, 739 N.Y.S. 2d 565 ( 1st Dept. 2002 )( certification granted ).

[434].Colbert v. Rank America, Inc., 273 A.D. 2d 209, 709 N.Y.S. 2d 449 ( 1st Dept. 2000 )( certification granted ).

[435].Lauer v. New York Telephone Co., 231 A.D. 2d 126, 659 N.Y.S. 2d 359 ( 3d Dept. 1997 )( certification granted ).

[436].Gross v. Ticketmaster, 5 Misc. 3d 1005 ( N.Y. Sup. 2004 )( certification granted ).

[437]. Matter of Coordinated Title Insurance Cases, 2 Misc. 3d 1007(A) ( N.Y. Sup. 2004 )( certification granted ).

[438].Wornow v. Register.Co, Inc., 8 A.D. 3d 59, 778 N.Y.S. 2d 25 ( 1st Dept. 2004 )( money had and received claim sustained ).

[439].Friar v. Vanguard Holding Corp., 78 A.D. 2d 83, 97-99, 434 N.Y.S. 2d 696 ( 2d Dept. 1986 )( duress in paying mortgage recording tax; certification granted ).

[440].Weinberg v. Hertz Corp., 116 A.D. 2d 1, 499 N.Y.S. 2d 692 ( 1st Dept. 1986 ), aff'd 69 N.Y. 2d 979, 516 N.Y.S. 2d 652, 509 N.E. 2d 347 ( 1987 )( certification granted ); Super Glue Corp. V. Avis Rent-A-Car System, Inc., 132 A.D. 2d 604, 517 N.Y.S. 2d 764 ( 2d Dept. 1987 )( no affirmative cause of action available for bad faith dealings or unconscionability ).

[441].Englade v. HarperCollins Publishers, Inc., 289 A.D. 2d 159, 734 N.Y.S. 2d 176 ( 1st Dept. 2001 )( certification granted ).

[442].MaKastchian v. Oxford Health Plans, Inc., 370 A.D. 2d 25, 704 N.Y.S. 2d 44 ( 1st Dept. 2000 )( certification granted ).

[443].Western New York Public Broadcasting Ass'n. V. Vestron, Inc., 238 A.D. 2d 929, 661 N.Y.S. 2d 555 ( 4th Dept. 1997 )( certification granted ).

[444].Freeman v. Great Lakes Energy Partners, 12 A.D. 3d 1170, 785 N.Y.S. 2d 640 ( 4th Dept. 2004 )( certification granted ).

[445].Wornow v. Register.Co, Inc., 8 A.D. 3d 59, 778 N.Y.S. 2d 25 ( 1st Dept. 2004 )( breach of covenant of good faith dismissed because " plaintiff received full benefit of that agreement " ).

[446].Broder v. MBNA Corp., 281 A.D. 2d 369, 722 N.Y.S. 2d 524 ( 1st Dept. 2001 )( certification granted ).

[447].Sims v. First Consumers National Bank, 303 A.D. 2d 288, 758 N.Y.S. 2d 284 ( 1st Dept. 2003 )( claim stated for breach of implied duty of good faith and fair dealing ).

[48].Colbert v. Rank America, Inc., 273 A.D. 2d 209, 709 N.Y.S. 2d 449 ( 2d Dept. 2000 )( certification granted ).

[449].Super Glue Corp. V. Avis Rent-A-Car System, Inc., 132 A.D. 2d 604, 517 N.Y.S. 2d 764 ( 2d Dept. 1987 )( no affirmative cause of action available for bad faith dealings or unconscionability ).

[450] Friar v. Vanguard Holding Corp., 78 A.D. 2d 83, 97-99, 434 N.Y.S. 2d 696 ( 2d Dept. 1986 )( certification granted ). .

[451].Dillon v. U-A Columbia Cablevision of Westchester, Inc., 100 N.Y. 2d 525, 760 N.Y.S. 2d 726, 790 N.E. 2d 1155 ( 2003 )( claims of Westchester County cable TV subscribers challenging $5.00 late fees as an " unlawful penalty " dismissed because the voluntary payment doctrine which " bars recovery of payments voluntarily made with full knowledge of the facts and in the absence of fraud or mistake of material fact or law " ).

[452].Clark v.Marine Midland Bank, Inc., 80 A.D. 2d 761, 426 N.Y.S. 2d 711 ( 1st Dept. 1981 )( certification granted; penalty violation of U.C.C. 1-106 ).

[453].See e.g.,; Asher v. Abbott Laboratories, 290 A.D. 2d 208, 737 N.Y.S. 2d 4 ( 1st Dept. 2002 )
( " private persons are precluded from bringing a class action under the Donnelly Act...because the treble damage remedy...constitutes a ' penalty ' within the meaning CPLR 901(b) " );
Cox v. Microsoft Corp., 290 A.D. 2d 206, 737 N.Y.S. 2d 1 ( 1st Dept. 2002 ); Ganci v. Cape Canaveral Tour And Travel, Inc., 4 Misc. 3d 1003(A), 2004 WL 1469372 ( N.Y. Sup. 2004 )( motion to dismiss class allegations in action alleging violation of Telephone Consumer Protection Act ( TCPA ); motion to dismiss class allegations granted
" since plaintiff's action sought to recover a minimum measure of recovery created and imposed by the TCPA, CPLR 901(b) specifically prohibited its maintenance as a class action " );
Giovanniello v. Hispanic Media Group USA, Inc., 4 Misc. 3d 440, 780 N.Y.S. 2d 720 ( Nassau Sup. 2004 )( " the allowance of treble damages under the TCPA is punitive in nature and constitutes a penalty "; certification denied as violative of C.P.L.R. 901(b) ); Ho v. VISA U.S.A. Inc., 3 Misc. 3d 1105(A), 2004 WL 1118534 ( N.Y. Sup. 2004 ) ( " plaintiffs' alleged injury is far too remote to provide antitrust standing under the Donnelly Act " and is dismissed ).

[454]. See e.g., Cox v. Microsoft Corp., 8 A.D. 3d 39, 40, 778 N.Y.S. 2d 147 ( 1st Dept. 2004 )
( " We also reject Microsoft's argument that plaintiffs are not entitled to class action relief under General Business Law 349 since the statutorily prescribed $50 minimum damages to be awarded for a violation of that section constitutes a ' penalty ' within the meaning of CPLR 901(b). Inasmuch as plaintiffs in their amended complaint expressly seek only actual damages...CPLR 901(b) which prohibits class actions for recovery of minimum or punitive damages, ( is ) inapplicable " );
Ridge Meadows Homeowners's Association, Inc. V. Tara Development Company, Inc., 242 A.D. 2d 947, 665 N.Y.S. 2d 361 ( 4th Dept. 1997 )
( " On appeal...plaintiffs consent to strike that portion of the sixth cause of action seeking ( minimum and treble damages pursuant to GBL 349(h) ) and to limit their demand to actual damages. Thus, CPLR 901(b) is no longer applicable and that cause of action may be maintained as a class action...We further modify the order by providing that any class member wishing to pursue statutory minimum and treble damages...may opt out of the class and bring an individual; action " );
Super Glue Corp. V. Avis Rent A Car System, Inc., 132 A.D. 2d 604, 517 N.Y.S. 2d 764 ( 2d Dept. 1987 ); Weinberg v. Hertz Corporation, 116 A.D. 2d 1, 499 N.Y.S. 2d 693 ( 1st Dept. 1986 ), aff'd 60 N.Y. 2d 979, 516 N.Y.S. 2d 652, 509 N.E. 2d 347 ( 1987 ); Burns v. Volkswagen of America, Inc., 118 Misc. 2d 289, 460 N.Y.S. 2d 410 ( Monroe Sup. 1982 )( " as for actual damages, however, 901(b) would not bar a class action " ); Hyde v. General Motors Corp., New York Law Journal, October 30, 1981, p. 5 ( N.Y. Sup. ).

[455].Catalano v. Heraeus Kulzer, Inc., 305 A.D. 2d 356, 759 N.Y.S. 2d 159 ( 1st Dept. 2003 )( certification denied as to express warranty claim; predominance of causation and reliance );Rivkin v. Heraeus Kulzer GMBH, 289 A.D. 2d 27, 734 N.Y.S.2d 31 ( 1st Dept. 2001 )( class of dental patients seek damages for defective " polymer dental restoration, bonded to metal...that had failed "; strict products liability claims dismissed since only economic losses were sought ).

[456]. Frank v. DaimlerChrysler Corp., 292 A.D. 2d 118, 741 N.Y.S. 2d 9 ( 1st Dept. 2002 ), appeal dismissed 99 N.Y.S. 2d 502 ( 2002 )( claims dismissed in the absence of actual damages; manufacturer should not be " indemmifier(s) for a loss that may never occur " and finding that the best way to " promote consumer safety ( was ) to petition the NHTSA for a defect investigation " ).

[457].Gordon v. Ford Motor Co., 260 A.D. 2d 164, 687 N.Y.S. 2d 369 ( 2d Dept. 1999 )( breach of implied warranty of merchantability and express warranty; certification denied ).

[458].Morgan v. A.O. Smith Corp., 233 A.D. 2d 375, 650 N.Y.S. 2d 748 ( 2d Dept. 1996 )( certification denied ).

[459].Ades v. Microsoft Corp., N.Y.L.J., October 9, 2001, p. 27, col. 1 ( Kings Sup. 2001 )( cabling causing freezing, pausing, program crashes and slowed operation; claims for breach of contract and injunctive relief requiring notice of cable defect viable ).

[460].Brummel v. Leading Edge Products, Inc., New York Law Journal, February 19, 1998, p. 28, col. 4 ( N.Y. Sup. )( certification denied; eight different warranties; reliance and choice of law issues ).

[461]. In Donahue v. Ferolito, 786 N.Y.S. 2d 153 ( N.Y. App. Div. 1st Dept. 2004 ) a class of consumers sought an injunction " against continued sale of certain bottled soft drinks " because of misrepresentations that the products " would improve memory, reduce stress and improve overall health ". The Court dismissed the complaint finding no actual harm was alleged, no warranty was promised and enforced a disclaimer of any health benefit.

[462].See e.g., Catalano v. Heraeus Kulzer, Inc., 305 A.D. 2d 356, 759 N.Y.S. 2d 159 ( 1st Dept. 2003 )( certification denied; predominance of the individual " issues of causation and reliance " ); Hazelhurst v. Brita Products Company, 295 A.D. 2d 240, 744 N.Y.S. 2d 31 ( 1st Dept. 2002 )( certification denied;
" Reliance... may not be presumed where, as here, a host of individual factors could have influenced a class members's decision ( to purchase ) the product...a variety of reasons for replacing their filters, including the lapse of time, taste and appearance of the water...reliance upon the alleged misrepresentations of Brita is an issue that varies from individual to individual " );
Morgan v. A.O. Smith Corp., 233 A.D. 2d 375, 650 N.Y.S. 2d 748 ( 2d Dept. 1996 )( certification denied; " Individual issues exist...[which] influenced their decision to purchase [ the silos ]"; Brummel v. Leading Edge Products, Inc., N.Y.L.J., February 19, 1998, p. 28, col. 4 ( N.Y. Sup. )( defective computer software; certification denied; eight different warranties; reliance and choice of law issues ).

[463].Drizin v. Sprint Corp., 2004 WL 2591249 ( 1st Dept. 2004 )( certification granted to class of telephone users charging fraud by maintaining
" numerous toll-free call service numbers that were nearly identical ( except for one digit ) to the toll-free numbers of competing long distance telephone service providers...' fat fingers ' business...customers allegedly unaware that they were being routed through a different long distance provider, ended up being charged rates far in excess of what they would have paid to their intended providers " ).

[464].Meachum v. Outdoor World Corp., 273 A.D. 2d 209, 709 N.Y.S. 2d 449 ( 2d Dept. 2000 )( certification granted ).

[465].MaKastchian v. Oxford Health Plans, Inc., 270 A.D. 2d 25, 704 N.Y.S. 2d 44 ( 1st Dept. 2000 )( certification granted ).

[466].Thompson v. Whitestone Savings & Loan Assoc., 101 A.D. 2d 833, 475 N.Y.S. 2d 491 ( 2d Dept. 1984 )( certification granted ).

[467].Lauer v. New York Telephone Co., 231 A.D. 2d 126, 659 N.Y.S. 2d 359 ( 3d Dept. 1997 )( certification granted ).

[468]. Branch v. Crabtree, 197 A.D. 2d 557, 603 N.Y.S. 2d 490 ( 2d Dept. 1993 )( certification granted ).

[469].Dunleavy v. Youth Travel Associates, 199 A.D. 2d 1046, 608 N.Y.S. 2d 30 ( 2d Dept. 1993 )( certification granted ); King v. Club Med, Inc., 76 A.D. 2d 123, 430 N.Y.S. 2d 65 ( 1st Dept. 1980 )( certification granted ); Quadagno v. Diamond Tours & Travel Inc. 89 Misc. 2d 697, 392 N.Y.S. 2d 783 ( N.Y. Sup. 1976 )( certification granted ).

[470].Matter of Coordinated Title Insurance Cases, 3 Misc. 3d 1007(A), 2002 WL 690380 ( N.Y. Sup. 2004 )( certification granted ).

[471].Gross v. Ticketmaster, 5 Misc. 3d 1005 ( N.Y. Sup. 2004 )( certification granted ).

[472].Amalfitano v. Sprint Corp., 4 Misc. 3d 1027(A) ( Kings Sup. 2004 )( certification granted ).

[473].Feldman v. Quick Quality Restaurants, Inc., N.Y.L.J., July 22, 1983, p. 12, col. 4 ( N.Y. Sup. 1983 ) ( fluid recovery; certification granted )

[474].See e.g., Solomon v. Bell Atlantic Corp., 9 A.D. 3d 49, 777 N.Y.S. 2d 50 ( 1st Dept. 2004 )( class of DSL subscribers claimed that defendant misrepresented the speed [ " FAST, high speed Internet access " ], connectivity [ " You're always connected " and ease of installation [ " self installation...in minutes " ] of its services; class decertified because of a lack of uniform misrepresentations; " the individual plaintiffs did not all see the same advertisements; some saw no advertisements at all before deciding to become subscribers " ); DeFilippo v. Mutual Life Ins. Co., 2004 WL 2902570 ( 1st Dept. 2004 )( certification denied; oral sales presentations ); Zehnder v. Ginsburg Architects, 254 A.D. 2d 284, 678 N.Y.S. 2d 376 ( 2d Dept. 1998 )( certification denied; condo designs not uniform ); Strauss v. Long Island Sports, 60 A.D. 2d 501, 401 N.Y.S. 2d 283 ( 2d Dept. 1978 ) ( certification denied ); Russo v. Massachusetts Mutual Life, 192 Misc. 2d 349, 746 N.Y.S. 2d 380 ( N.Y. Sup. 2002 )( certification denied; oral misrepresentations ).

[475].See e.g., Ackerman v. Price Waterhouse, 252 A.D. 2d 179, 683 N.Y.S. 2d 179 ( 1st Dept. 1998 )( presumption of reliance; certification granted ); King v. Club Med, Inc., 76 A.D. 2d 123, 430 N.Y.S. 2D 65 ( 1ST Dept. 1980 )( reliance presumed; certification granted ); Matter of Coordinated Title Insurance Cases, 3 Misc. 3d 1007(A), 2002 WL 690380 ( N.Y. Sup. 2004 ) ( " In common law fraud claims, proof of plaintiff's reliance is crucial...reliance has been presumed in certain cases involving material omissions..." ); Guadagno v. Diamond Tours & Travel, Inc., 89 Misc. 2d 697, 392 N.Y.S. 2d 783 ( N.Y. Sup. 1976 ).

[476].See e.g., Small v. Lorillard Tobacco Co., 94 N.Y. 2d 43, 698 N.Y.S. 2d 615, 720 N.E. 2d 892 ( 1999 )( smoker's class action certification denied ); Hazelhurst v. Brita Products Company, 295 A.D. 2d 240, 744 N.Y.S. 2d 31 ( 1st Dept. 2002 )( certification denied
" Reliance is required...and such reliance may not be presumed where, as here, a host of individual factors could have influenced a class members's decision ( to purchase ) the product..." );
Banks v. Carroll & Graf Publishers, Inc., 267 A.D. 2d 68, 699 N.Y.S. 2d 403 ( 1st Dept. 1999 )( certification denied ); Morgan v. A.O. Smith Corp., 223 A.D. 2d 375, 650 N.Y.S. 2d 748 ( 2d Dept. 1996 )( certification denied ).

[477]. Anonymous v. CVS Corp., 293 A.D. 2d 285, 739 N.Y.S. 2d 565 ( 1st Dept. 2002 )( class certification granted; breach of fiduciary claim sustained at 188 Misc. 2d 616, 728 N.Y.S. 2d 333 ( N.Y. Sup. 2001 )).

[478].Gilman v. Merrill Lynch Pierce Fenner & Smith, 93 Misc. 2d 941, 944, 404 N.Y.S. 2d 258 ( N.Y. Sup. 1978 )( brokerage customers claim breach of fiduciary duty by brokers " withholding funds due them for a period of 24 hours or more, thus permitting it to use such funds for a day or more for its own profit "; certification granted ).

[479].Carnegie v. H & R Block, Inc., 269 A.D. 2d 145, 703 N.Y.S. 2d 27 ( 1st Dept. 2000 )( breach of fiduciary duty claim dismissed; certification of GBL 349 claim denied since misrepresentations, if any, based on oral statements ).

[480].Hazelhurst v. Brita Products Company, 295 A.D. 2d 240, 744 N.Y.S. 2d 31 ( 1st Dept. 2002 )( certification denied ).

[481].Dunleavy v. New Hartford Central School District, 266 A.D. 2d 931, 697 N.Y.S. 2d 446 ( 4th Dept. 1999 )( parents seek to recover deposits paid for school trips;
"' In order to establish a claim for negligent misrepresentation, plaintiffs were required to demonstrate that defendant had a duty, based upon some special relationship with them, to impart correct information, that the information was false or incorrect and that plaintiffs reasonably relied upon the information provided '...we conclude that defendant established that its teachers did not provide any false information..." ).

[482].Malfitano v. Sprint Corp., N.Y.L.J., June 24, 2004, p. 17 ( Kings Sup. )( certification granted ).

[483]. Makastchian v. Oxford Health Plans, Inc., 270 A.D. 2d 25, 704 N.Y.S. 2d 44 ( 1st Dept. 2000 )( certification granted ).

[484].Ackerman v. Price Waterhouse, 252 A.D. 2d 179, 683 N.Y.S. 2d 179 ( 1st Dept. 1998 )( certification granted ).

[485]. See e.g., Rallis v. City of New York, 3 A.D. 3d 525, 770 N.Y.S. 2d 736 ( 2d Dept. 2004 ) ( water damage from flooding; certification denied ); Catalano v. Heraeus Kulzer, Inc., 305 A.D. 2d 356, 759 N.Y.S. 2d 159 ( 1st Dept. 2003 )( defective polymer-based system of dental restorations; certification denied ); Lieberman v. 293 Mediterranean Market Corp., 303 A.D. 2d 560, 756 N.Y.S. 2d 469 ( 2d Dept. 2002 )( food poisoning at restaurant; certification denied ); Geiger v. American Tobacco Co., 277 A.D. 2d 420, 716 N.Y.S. 2d 108 ( 2d Dept. 2000 )( smokers' mass tort class action; certification denied ); Weprin v. Fishman, 275 A.D. 2d 614, 713 N.Y.S. 2d 57 ( 1st Dept. 2000 )( collapse of elevator tower closes street; claims of class of businesses for economic losses dismissed ); Aprea v. Hazeltine Corp.,247 A.D. 2d 564, 669 N.Y.S. 2d 61 ( 2d Dept. 1998 )( toxic emissions; certification denied ); Karlin v. IVF America, Inc., 239 A.D. 2d 562, 657 N.Y.S. 2d 460 ( 2d Dept. 2997 )( misrepresentation of in vitro fertilization successful pregnancy rates; certification denied ); mod'd on other grounds, 93 N.Y. 2d 282, 690 N.Y.S. 2d 495, 712 N.E. 2d 662 ( 1999 ); Komonczi v. Gary Fields, 232 A.D. 2d 374, 648 N.Y.S. 2d 151 ( 2d Dept. 1996 )( improperly performed colonscopies; certification denied ); Hurtado v. Purdue Pharma Laboratories, 2005 N.Y. Misc. LEXIS 79 ( N.Y. Sup. 2005 )( certification of oxycontin mass tort class denied ); McBarnette v. Feldman, 153 Misc. 2d 627, 582 N.Y.S. 2d 900 ( Suffolk Sup. 1992 )( patients of AIDS-infected dentist seeks emotional distress damages; certification denied; mass torts not favored ).

[486]. Dickerson, "New York Consumers Enjoy Statutory Protections Under Both State and Federal Statutes," New York State Bar Association Journal, Vol. 76, No. 7, September 2004, p. 10.

[487].Karlin v. IVF America, Inc., 93 N.Y. 2d 282, 690 N.Y.S. 2d 495, 712 N.E. 2d 662 ( 1999 ).

[488].Gaidon v. Guardian Life Insurance Company, 96 N.Y. 2d 201, 727 N.Y.S. 2d 30, 750 N.E. 2d 1078 ( 2001 ); Stutman v. Chemical Bank, 95 N.Y. 2d 24, 29, 709 N.Y.S. 2d 892, 731 N.E. 2d 608 ( 2000 ); Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, NA, 85 N.Y. 2d 20, 25, 647 N.Y.S. 2d 741, 623 N.E. 2d 529 ( 1995 ); Anonymous v. CVS Corp., 293 A.D. 2d 285, 739 N.Y.S. 2d 565 ( 1st Dept. 2002 )( class certification granted ); Broder v. MBNA Corp., 281 A.D. 2d 369, 722 N.Y.S. 2d 524 ( 1st Dept. 2001 )( certification granted to G.B.L. 349 claim ); Coordinated Title Insurance Cases, 3 Misc. 3d 1007(A), 2002 WL 690380 ( N.Y. Sup. 2004 )( "'...The Court of Appeals has held that reliance and scienter are not elements of a ( GBL 349 ) claim " ).

[489].Solomon v. Bell Atlantic Corp., 9 A.D. 3d 49, 777 N.Y.S. 2d 50 ( 1st Dept. 2004 )( " Individual trials also would be required to determine damages based on the extent of each plaintiff's injuries; certification denied ); DeFilippo v. Mutual Life Ins. Co., 2004 WL 2902570 ( 1st Dept. 2004 )( class decertified a because a recent Court of Appeals' decision ( Goshen v. Mutual Life Ins. Co., 98 N.Y. 2d 314 ( 2002 )) which held that
" the deceptive acts or practices under GBL 349 ' [ are ] not the mere invention of a scheme or marketing strategy, but the actual misrepresentation or omission to a consumer ' eliminated any doubt ( such claims ) would require individualized inquires into the conduct of defendants' sales agents with respect to each individual purchaser " );
Hazelhurst v. Brita Products Company, 295 A.D. 2d 240, 744 N.Y.S. 2d 31 ( 1st Dept. 2002 ) ( certification denied ).

[490].Gaidon v. Guardian Life Insurance Company, 96 N.Y. 2d 201, 727 N.Y.S. 2d 30, 750 N.E. 2d 1078 ( 2001 ).

[491].Colbert v. Rank America, Inc., 295 A.D. 2d 300, 743 N.Y.S. 2d 150 ( 2d Dept. 2002 )( GBL 349 claim sustained; GBL 350 claim dismissed ); Colbert v. Rank America, Inc., 295 A.D. 2d 302, 742 N.Y.S. 2d 905 ( 2d Dept. 2002 )( motion to decertify denied ); People v. Lipsitz, 174 Misc. 2d 571, 663 N.Y.S. 2d 468, 475 ( 1997 )( " the mere falsity of the advertising content is sufficient as a basis for the false advertising claim " ).

[492].Drizin v. Sprint Corp., 2004 WL 2591249 ( 1st Dept. 2004 )( class of telephone users charged defendants with fraud and violation of G.B.L. 349 by maintaining
" numerous toll-free call service numbers that were nearly identical ( except for one digit ) to the toll-free numbers of competing long distance telephone service providers...' fat fingers ' business... customers allegedly unaware that they were being routed through a different long distance provider, ended up being charged rates far in excess of what they would have paid to their intended providers ";
class certification granted but limited to New York State residents ).

[493].Matter of Coordinated Title Insurance Cases, 2 Misc. 3d 1007(A), 784 N.Y.S. 2d 919 ( Nassau Sup. 2004 )( classes of home buyers charged title insurance companies with fraud, unjust enrichment and violation of G.B.L. 349 by failing to " comply with their own filed and state-approved title insurance premium rates "; certification granted ).



[494].Gross v. Ticketmaster L.L.C., 5 Misc. 3d 1005(A) ( N.Y. Sup. 2004 )( class of purchasers of $98.50 tickets for a concert " billed as ' Michael Jackson: 30th Anniversary Celebration, the Solo Years ' claimed obstructed views and charged defendant with fraud, breach of contract, unjust enrichment and violation of G.B.L. 349. After dismissing the fraud claim the Court granted class certification finding the " the class action form... superior to a large number of individual claimants having to pursue their respective rights to small refunds " ).

[495]. Mountz v. Global Vision Products, Inc., 3 Misc. 3d 171, 770 N.Y.S. 2d 603 ( N.Y. Sup. 2003 )( class of purchasers of Avacor, a hair loss treatment product, alleged fraudulent and negligent misrepresentations of
" ' no known side effects ' ( as being ) refuted by documented minoxidil side effects... cardiac changes, visual disturbances, vomiting, facile swelling and exacerbation of hair loss ";
G.B.L. 349, 350 claims sustained but limited coverage to New York residents deceived in New York ).

[496]. Amalfitano v. Sprint Corp., 4 Misc. 3d 1027(A) ( N.Y. Sup. 2004 )( a class of purchasers of the Qualcomm 2700 wireless telephone charged defendant with fraud, breach of contract, negligent misrepresentation and violations of G.B.L. 349 in failing to honor a $50 rebate promotion. The Court dismissed the G.B.L. 349 claim but certified the class ).

[497]. In Peck v. AT&T Corp., N.Y.L.J., August 1. 2002, p. 18, col. 2 ( N.Y. Sup. ) a GBL 349 consumer class action involving cell phone service which " improperly credited calls causing ( the class ) to lose the benefit of weekday minutes included in their calling plans ", approved a proposed settlement on behalf of residents in New York, New Jersey and Connecticut
[ " it would be a waste of judicial resources to require a different [ GBL 349 ] class action in each state...where, as here, the defendants have marketed their plans on a regional ( basis ) " ].

[498]. In Goshen v. The Mutual Life Ins. Co., 98 N.Y. 2d 314, 746 N.Y.S. 2d 858, 774 N.E. 2d 1190 ( 2002 ) and Scott v. Bell Atlantic Corp., 98 N.Y. 2d 314, 746 N.Y.S. 2d 858, 774 N.E. 2d 1190 ( 2002 ), the Court of Appeals, not wishing to " tread on the ability of other states to regulate their own markets and enforce their own consumer protection laws " and seeking to avoid " nationwide, if not global application " , held that General Business Law [ GBL ] 349 requires that " the transaction in which the consumer is deceived must occur in New York ".

[499]. Do corporations and other non-consumers have standing to assert claims under G.B.L. 349? The Second Circuit Court of Appeals in Blue Cross & Blue Shield of N.J. Inc. v. Philip Morris USA Inc., 344 F. 3d 211, 217-218 ( 2d Cir. 2003 ), certified two questions to the New York Court of Appeals, the first of which was answered at Blue Cross & Blue Shield of N.J. Inc. V. Philip Morris USA, Inc., 3 N.Y. 2d 200, 205 ( 2004 ). Relying upon the common law rule that " an insurer or other third-party payer of medical expenditures may not recover derivatively for injuries suffered by its insured " the Court of Appeals held, without deciding the ultimate issue of whether non-consumers are covered by G.B.L. 349, that Blue Cross's claims were too remote to provide it with standing under G.B.L. 349 [ " Indeed, we have warned against ' the potential for a tidal wave of litigation against businesses that was not intended by the Legislature '" ]).

[500]. Gaidon v. The Guardian Life Ins. Co., 2 A.D. 3d 130, 767 N.Y.S. 2d 599 ( 1st Dept. 2003 )( certification denied; oral misrepresentations require individual proof ); Solomon v. Bell Atlantic Corp., 9 A.D. 3d 49, 777 N.Y.S. 2d 50 ( 1st Dept. 2004 )( " Plaintiffs have not demonstrated that all members of the class saw the same advertisements; class action decertified ); Broder v. MBNA Corp., 281 A.D. 2d 369, 722 N.Y.S. 2d 524 ( 1st Dept. 2001 )
( " allegations of deceptive acts are based on identical written solicitations and the particular damages of each class member can be easily computed ";
certification granted to G.B.L. 349 claim ).

[501]. Gross v. Ticketmaster, New York Law Journal, September 28, 2004, p. 18, col. 3 ( N.Y. Sup. )( certification granted ); Matter of Coordinated Title Insurance Cases, 3 Misc. 3d 1007(A), 2002 WL 690380 ( N.Y. Sup. 2004 )( certification granted; " Because the allegations...involve largely omissions and not affirmative representations, no individual issues of what the defendants' said will predominate " ); Broder v. MBNA Corp., 281 A.D. 2d 369, 722 N.Y.S. 2d 524 ( 1st Dept. 2001 )( " allegations of deceptive acts are based on identical written solicitations and the particular damages of each class member can be easily computed "; certification granted to G.B.L. 349 claim ).

[502].Cox v. Microsoft Corp., 8 A.D. 3d 39, 40, 778 N.Y.S. 2d 147 ( 1st Dept. 2004 )
( " A cause of action under General Business Law 349 is stated by plaintiff's allegations that Microsoft engaged in purposeful, deceptive monopolistic business practices, including entering into secret agreements with computer manufacturers and distributors to inhibit competition and technological development, and creating an ' applications barrier ' in its Windows software that, unbeknownst to consumers, rejected competitors' Inter-compatible PC operating systems, and that such practices resulted in artificially inflated prices for defendant's products and denial on consumer access to competitors' innovations, services and products ).
[503]. Cox v. Microsoft Corp., 8 A.D. 3d 39, 40, 778 N.Y.S. 2d 147 ( 1st Dept. 2004 )
( " A cause of action under General Business Law 349 is stated by plaintiff's allegations that Microsoft engaged in purposeful, deceptive monopolistic business practices...We also reject Microsoft's argument that plaintiffs are not entitled to class action relief under General Business Law 349 since the statutorily prescribed $50 minimum damages to be awarded for a violation of that section constitutes a ' penalty ' within the meaning of CPLR 901(b). Inasmuch as plaintiffs in their amended complaint expressly seek only actual damages...CPLR 901(b) which prohibits class actions for recovery of minimum or punitive damages, ( is ) inapplicable " );
Super Glue Corp. V. Avis Rent Car System, Inc., 132 A.D. 2d 604, 517 N.Y.S. 2d 764 ( 2d Dept. 1987 ); Weinberg v. Hertz Corporation, 116 A.D. 2d 1, 499 N.Y.S. 2d 693 ( 1st Dept. 1986 ), aff'd 60 N.Y. 2d 979, 516 N.Y.S. 2d 652, 509 N.E. 2d 347 ( 1987 ); Burns v. Volkswagen of America, Inc., 118 Misc. 2d 289, 460 N.Y.S. 2d 410 ( Monroe Sup. 1982 )( " as at actual damages, however, 901(b) would not bar a class action " ); Hyde v. General Motors Corp., New York Law Journal, October 30, 1981, p. 5 ( N.Y. Sup. ).

[504].Ridge Meadows Homeowners's Association, Inc. V. Tara Development Company, Inc., 242 A.D. 2d 947, 665 N.Y.S. 2d 361 ( 4th Dept. 1997 )
( " On appeal... plaintiffs consent to strike that portion of the sixth cause of action seeking ( minimum and treble damages pursuant to GBL 349(h) ) and to limit their demand to actual damages. Thus, CPLR 901(b) is no longer applicable and that cause of action may be maintained as a class action...We further modify the order by providing that any class member wishing to pursue statutory minimum and treble damages...may opt out of the class and bring an individual; action " ).
[505].Asher v. Abbott Laboratories, 290 A.D. 2d 208, 737 N.Y.S. 2d 4 ( 1st Dept. 2002 )
( " private persons are precluded from bringing a class action under the Donnelly Act...because the treble damage remedy...constitutes a ' penalty ' within the meaning CPLR 901(b) " );
Cox v. Microsoft Corp., 290 A.D. 2d 206, 737 N.Y.S. 2d 1 (1st Dept. 2002 ); Ho v. VISA U.S.A. Inc., 3 Misc. 3d 1105(A), 2004 WL 1118534 ( N.Y. Sup. 2004 )( " plaintiffs' alleged injury is far too remote to provide antitrust standing under the Donnelly Act " and is dismissed ); Rubin v. Nine West Group, Inc., 1999 WL 1425364 ( N.Y. Sup. 1999 )
( " Although plaintiff makes the general statement that ' CPLR 901(b) does not create a barrier to class actions under the Donnelly Act '...a reading of that statute and the Act establish the contrary " );
Russo & Dubin v. Allied Maintenance Corp., 95 Misc. 2d 344, 407 N.Y.S. 2d 617 ( N.Y. Sup. 1978 )
( "...even if plaintiff's contention that they are bringing this action for single damages were accepted and such an action was permitted, this action could nevertheless not proceed as a class action. Plaintiffs cannot be considered adequate class representatives since by demanding members of the class to waive their right to treble damages, they cannot be said to fairly and adequately protect the interest of the class " );
Blumenthal v. ASTA, New York Law Journal, July 8, 1977, p. 5, col. 1 ( N.Y. Sup. )( certification denied ).



[506].In Ganci v. Cape Canaveral Tour and Travel, Inc., 4 Misc. 3d 1003(A)( Kings Sup. 2004 ) and Giovanniello v. Hispanic Media Group USA, Inc., 4 Misc. 3d 440, 780 N.Y.S. 2d 720 ( Nassau Sup. 2004 ) classes of consumers who received unsolicited telephone calls or commercial faxes claimed violations of the federal Telephone Consumer Protection Act [ TCPA ]. In denying class certification the Courts relied upon CPLR 901(b).
" The TCPA statute does not specifically provide for a class action to collect the $500 damages and said $500 damages is a ' penalty '...or a ' minimum measure of recovery '...the allowance of treble damages under the TCPA is punitive in nature and constitutes a penalty ".
[507].In Fleming v. Barnswell Nursing Home, 309 A.D. 2d 1132, 766 N.Y.S. 2d 241 ( 3d Dept. 2003 ), the survivor of a deceased nursing home resident commenced a mass tort class action against the nursing home and physician alleging medical malpractice, negligence and a violation of Public Health Law 2801-d. Class certification was denied for the negligence claims but granted for the Public Health Law 2801-d claims.
" An action by residents of a residential health care facility for violating their rights or benefits created by statute...may be brought as a class action if the prerequisites to class certification set forth in CPLR article 9 are satisfied... violation of DOH rules affecting residents predominate...(claims of ) inadequate heat and inedible food are typical ".

[508].Feder v. Staten Island Hospital, 304 A.D. 2d 470, 758 N.Y.S. 2d 314 ( 1st Dept. 2003 )( patients claim overcharges for copies of medical records as violative of Public Health Law 18(2)(e); certification denied ).

[509].Miller v. 14th Street Associates, N.Y.L.J., May 29, 1985, p. 12, col. 1 ( N.Y. Sup. 1985 ), aff'd 115 A.D. 2d 1022, 495 N.Y.S. 2d 879 ( 1st Dept. 1985 ), motion for leave to appeal dismissed 67 N.Y. 2d 603, 500 N.Y.S. 2d 1025, 490 N.E. 2d 1231 ( 1986 )( plaintiff class of 2 million tenants sue defendant class of New York City landlords seeking higher interest rates on security deposits; motion for summary judgment and dismissal of class allegations denied ).

[510]. Caesar v. Chemical Bank, 66 N.Y. 2d 698, 496 N.Y.S. 2d 418, 487 N.E. 2d 275 ( 1985 )( unauthorized use of pictures of employees; certification granted )

[511].Anonymous v. CVS Corp., 293 A.D. 2d 285, 739 N.Y.S. 2d 565 ( 1st Dept. 2002 )( certification granted to privacy class action challenging the sale of confidential and/or prescription information without prior notice ); Smith v. Chase Manhattan Bank USA, 293 A.D. 2d 598, 741 N.Y.S. 2d 100 ( 1st Dept. 2002 )( bank customers challenge sale of their names, phone numbers and credit histories to telemarketing firm in return for which Chase would receive " a commission ( of up to 24% of the sale ) in the event that a product or service offered were purchased "; complaint dismissed ).

[512].Gurnee v. Aetna Life & Casualty Co., 104 Misc. 2d 840, 428 N.Y.S. 2d 992 ( 1980 )( case dismissed ), aff'd 79 A.D. 2d 860, 437 N.Y.S. 2d 944 ( 4th Dept. 1980 ), rev'd 55 N.Y. 2d 184, 433 N.E. 2d 128, 448 N.Y.S. 2d 145, cert. Denied 103 S. Ct. 83 ( 1982 ); Gurnee v. Aetna Life & Casualty Co., New York Law Journal, November 28, 1983, p. 12, col. 4, aff'f 101 A.D. 2d 722, 477 N.Y.S. 2d 956 ( 1st Dept. 1984 )( class certification granted ) ( bilateral class action of insureds against automobile liability insurance companies over the coverage of no fault insurance ).

[513].In Dougherty v. North Fork Bank, 301 A.D. 2d 491, 753 N.Y.S. 2d 130 ( 2d Dept. 2003 ) a class challenged a mortgagor's imposition of " a $5 ' Facsimile Fee ', a $25 ' Quote Fee ' and a $100 ' Satisfaction Fee ' for the preparation of ( a mortgage ) satisfaction "; summary judgment for plaintiffs on the facsimile fee and quote fee as a violation of Real Property Law 274-a(2)(a) and summary judgment to defendant on the satisfaction fee ).

[514].In Trang v. HSBC Mortgage Corp., N.Y.L.J., April 17, 2002, p. 28, col. 3 ( N.Y. Sup. )and Negrin v. Norwest Mortgage, Inc., 293 A.D. 2d 726, 741 N.Y.S. 2d 287 ( 2002 ) classes of mortgagors claimed that recording and fax fees violated GBL 349 and Real Property Law 274-a. The Court in Trang denied defendant's motion for summary judgment and set a hearing date for plaintiff's class certification motion. The Court in Negrin reversed on class certification because the lower Court failed to determine if the plaintiff had standing to represent the class and " to analyze whether the action meets the statutory prerequisites for class action certification ".

[515].For a summary of the legislative history and contents of The Class Action Fairness Act see http://thomas.loc.gov/

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