Ever since my days as a City Court Judge sitting in the Small Claims Part ^[i] I have kept track of reported consumer law cases in New York State Courts. 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^[ii]. This Paper, prepared annually for New York State Civil Court Judges and the Town & Village Courts Resource Center discusses those consumer protection statutes most frequently used in New York State courts.

The Methodology Of This Paper

This Paper reports on recent consumer law cases in New York State Small Claims Courts, City Courts, District Courts, Civil Courts and Supreme Courts and categorizes them by the New York State or Federal consumer protection statutes invoked. For example, the most popular consumer protection statute is New York State General Business Law � 349 [ G.B.L � 349 ] which prohibits deceptive and misleading business practices. Under this category there is a description of cases, by type of product or service involved, which have successfully invoked G.B.L. � 349. Other consumer protection statutes are described within the context of product and service categories such as Cars and Loans and Credit. There also tables of both New York State and Federal consumer protection statutes.

Consumer Crisis: Credit Card Debt & Mortgage Foreclosures

Last year we noted the avalanche of credit card default cases being brought in New York State and the extraordinary response of our Civil Courts^[iii]. A recent study^[iv] by the Urban Justice Center discussed � the explosion of consumer debt cases in the New York City Civil Court in recent years. Approximately, 320,000 consumer debt cases were filed in 2006, leading to almost $800 million in judgments. The report notes that this is more filings than all the civil and criminal cases in U.S. District Courts...findings of the report include (1) The defendant failed to appear in 93.3% of the cases, (2) 80% of cases result in default judgments, (3) Even when defendants appear, they were virtually never represented by counsel, (4) Almost 90% of cases are brought by debt buyers �^[v].

Home foreclosures have increased dramatically leading New York State Court of Appeals Chief Justice Kaye to note that � Since January 2005, foreclosure filings have increased 150 percent statewide and filing are expected to rise at least an additional 40 percent in 2008 � and to announce a residential foreclosure program to � help ensure that homeowners are aware of available legal service providers and mortgage counselors who can help them avoid unnecessary foreclosures and reach-of-court resolutions �^[vi].

In addition, the Courts have responded, particularly, in the area of standing [ see Recent Standing Decisions from New York, NCLC Reports, Bankruptcy and Foreclosures Edition, Vol. 26, March/April 2008, p. 19 ( � In a series of recent decisions several New York courts^[vii] either denied summary judgment or refused to grant motions for default to plaintiffs who provided the courts with clearly inadequate proof of their standing to foreclose � ) and in applying New York State�s predatory lending and � high-cost home loan � statute as an affirmative defense in foreclosure proceedings^[viii].

���

Consumer Class Actions Too

������ �Article 9 of the C.P.L.R.^[ix] allows consumers to aggregate similar claims into class actions. The fact patterns in such class actions often provide useful information on new areas of consumer law. The scope of New York State class actions^[x] and a review of all New York State class actions reported between January 2005 to January 2008 appears herein.

Table Of Contents

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

2] Table of Federal Consumer Protection Statutes

2.1] Recent New York State Consumer Law Articles

3] Deceptive and Misleading Business Practices

[A] History & Philosophy

[B] Consumer Oriented Conduct

[C] Stating A Cognizable Claim

[D] Preemption

[E] Actual Injury Necessary

[F] Threshold Of Deception

[G] Scope Of G.B.L. � 349

[H] Statute Of Limitations

[I] Application To Non-Residents

[J] No Independent Claim Necessary

[K] Territorial Limitations

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

1] Apartment Rentals

2] Attorney Advertising

3] Aupair Services

4-5] Auctions: Bid Rigging

6] Automotive: Failure To Disclose Contract Terms

6.1] Automotive: Repair Shop Labor Charges

6.2] Automotive: Improper Billings For Services

6.3] Automotive: Defective Ignition Switches

6.4] Automotive: Defective Brake Shoes

6.5] Automotive: Motor Oil Changes

6.6] Automotive: Extended Warranties

6.7] Automotive: Refusal To Pay Arbitrator�s Award

6.8] Baldness Products

7] Budget Planning��������������������������������������������

8] Cable TV: Charging For Unneeded Converter Boxes

8.1] Cable TV: Imposition Of Unauthorized Taxes

9] Cell Phones

9.1] Checking Accounts

��� 10] Clothing Sales

��� 11] Computer Software

��� 12] Credit Cards

��� 13] Currency Conversion

��� 14] Customer Information

��� 14.1] Debt Collection Practices��������� ��

��� 15] Defective Dishwashers

��� 16] Door-To-Door Sales

��� 17] Educational Services

��� 17.1] Electricity Rates

��� 18] Employee Scholarship Programs���������

��� 19] Excessive & Unlawful Bail Bond Fees

��� 19.1] Excessive Modeling Fees

��� 20] Exhibitions & Conferences

��� 20.1] Extended Warranties

��� 20.2] Food: Nutritional Value

��� 20.3] Food: Expiration Dates

��� 21] Furniture Sales

��� 21.1] Guitars

��� 22] Hair Loss Treatment

��� 23] Home Heating Oil Price Increases

��� 24] Home Inspections

��� 25] In Vitro Fertilizations

��� 26] Insurance Coverage & Rates

��� 26.1] Insurance Claims Procedures

��� 27] Internet Marketing & Services

�� �28] � Knock-Off � Telephone Numbers

��� 29] Lasik Eye Surgery

��� 29.1] Layaway Plans

��� 29.2] Leases, Equipment

��� 30] Liquidated Damages Clause

��� 31] Loan Applications

��� 32] Mislabeling

��� 32.1] Monopolistic Business Practices

��� 33] Mortgages: Improper Fees & Charges

��� 34] Mortgages & Home Equity Loans: Closings

��� 35] Movers, Household Goods

��� 35.1] Packaging

��� 36] Professional Networking

��� 37] Privacy Invasion

��� 38] Pyramid Schemes

��� 39] Real Estate Sales

��� 40] Securities

��� 41] Sports Nutrition Products

��� 41.1] Suing Twice On Same Claim

��� 41.2] Tax Advice

��� 41.3] Taxes: Wrongfully Collected

��� 42] Termite Inspections

��� 43] Tobacco Products

��� 44] Transportation Services, E-Z Passes

��� 45] Travel Services

��� 45.1] Tummy Tighteners

��� 46] TV Repair Shops

�������� 46.1] Unfair Competition Claims

��� 47] Wedding Singers

4] False Advertising

[A] Unlawful Use Of Name Of Nonprofit Organization

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

[F.1] Used Cars

[G] Used Car Dealer Licensing

[H] Used Car Extended Warranty

[I] Used Car Lemon Law

[J] Warranty Of Serviceability

[K] Repossession & Sale of Vehicle

[L] Wrecked Cars

[M] Inspection Stations

5.1] Educational Services

6] Houses, Apartments & Coops

[A] Home Improvement Frauds

[A.1] Home Inspections

[B] Home Improvement Contractor Licensing

[C] New Home Implied Warranty Of Merchantability

[D] Movers, Household Goods

[E] Real Estate Broker Licenses

[F] Arbitration Agreements

[G] Real Property Condition Disclosure

[H] Real Property Warranty Of Habitability

[I] Multiple Dwelling Law

7] Insurance

[A] Coverage & Rates

[B] Claims Procedures

8] Mortgages, Credit Cards and Loans

��� [A] Fair Credit Reporting

[B] Home Ownership and Equity Protection

[C] Real Estate Settlements

[D] Regulation Z

[E] Truth In Lending

[E.1] Preemption Of State Law Claims

[F] Mortgage Related Documents; Fees

[F.1] Electronic Fund Transfer Act

[F.2] Predatory Lending Practices

[G] Credit Card Cases: Standards Of Proof

[H] Identity Theft

[I] Debt Collection Practices

[J]� Fair Debt Collective Practices Act

9] Overcoats Lost At Restaurants

10] Pyramid Schemes

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] Furniture Extended Warranties

[C.2] Health Clubs

[D] Lease Renewals

[E] Licensing To Do Business

[1] Home Improvement Contractors

[2] Used Car Dealers

[3] Debt Collectors

[4] Other Licensed Businesses

[E.1] Massage Therapy

[F] Merchandise Delivery Dates

[F.1] Merchandise Layaway Plans

[F.2] Price Gouging

[G] Refund Policies

[G.1] Retail Installment Sales

[H] Rental Purchase Agreements

[I] Warranty Of Merchantability

[J] Travel Services

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] Credit Card Defaults & Mortgage Foreclosures

[C] Forum Selection Clauses

[D] Tariffs; Filed Rate Doctrine

[E] Consumer Class Actions

[F] Reported Class Action Cases: 1/1/2005 - 12/31/2005

1] � Risk Free � Insurance

2] Monopolistic Business Practices

3] Forum Shopping: G.B.L. 340 In Federal Court

4] Fruity Booty Settlement Rejected

5] Listerine As Effective As Floss?

6] Cable TV

7] Illegal Telephone � Slamming �

8] Rental Cars

9] Document Preparation Fees

10] Tax Assessments

11] Arbitration Clauses & Class Actions

12] Vanishing Premiums

13] Labor Disputes

14] Retiree Benefits

15] Mortgages

16] Tenants

17] Document Preservation

18] Shareholder�s Suit

19] Corporate Merger

20] Partnership Dispute

21] Notice Issues

21.1] Insurance Dividends

22] Telephone Consumer Protection Act

23] Residential Electricity Contracts

24] Oil & Gas Royalty Payments

25] Street Vendors Unite

26] Inmates

27] Legal Aliens

28] Shelter Allowances

G] Reported Class Action Cases: 1/1/2006 - 21/31/2006���

1] Forum Selection Clause Enforced

2] Insurance Dividends

3] Water & Sewer Customers

4] Donnelly Act

5] Telephone Consumer Protection Act

6] Photocopying Costs

7] Tobacco Master Settlement Agreement

8] Outdoor World Settlement

9] Counterfeit Drugs

10] DHL Processing Fees

11] Spraypark Mass Tort

12] Spanish Yellow Pages

13] Demutualization Plan Challenged

14] Stock Exchange Merger

15] Digital Mobile Communications

16] Group Life Insurance Benefits

17] Wage Claims

18] Mortgage Pay-Offs

19] Retiree Benefits

20] Attorneys Fees

21] Electric Rate Overcharges

22] Medical Necessity

H] Reported Class Action Cases : 1/1/2007 - 12/31/2007

1] Donnelly Act

2] Fruity Booty Settlement Revisited

3] Craftsman Tools

4] Drug Misbranding

5] Snapple Distributors

6] Cellular Telephones

7] Cablevision Taxes & Fees

8] Mortgages: Document Preparation Fees

9] Mortgages: Yield Spread Premiums

10] Mortgages: Payoff Statement Fees

11] DHL Processing Fees

12] Equipment Leases

13] Health Insurance

14] Life Insurance

15] Wrecked Cars

16] Employees: Wages & Overtime

17] Employees: Davis-Bacon Act

18] Undocumented Aliens: Wage Claims

19] Lien Law Class Actions

20] Investments/Securities

21] Publishing Legal Notices

22] Constitutional Rights

23] Disclosure of Class Counsel�s Files

24] Vendors: Charge Backs & Late Payments

1] Table Of New York State Consumer Protection Statutes

[A] Banking Law 6-l [ Predatory Lending Practices; High-Cost Home Loans ];

[A.1] G.B.L. � 349 [ Deceptive & Misleading Business Practices ];

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

[B-1] G.B.L. Article 29-H [ Improper Debt Collection ];

[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. �� 380-s, 380-l [ Identity Theft ];

[G.2] G.B.L. � 394-c [ Dating Services ];

[G.3] 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-q [ New Cars; Sales & Leases ];

[H.2] G.B.L. � 396-t [ Merchandise Layaway Plans ];

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

[I.1] G.B.L. � 397 [ Unlawful Use Of Name Of Nonprofit Organization ];

[I.2] G.B.L. � 399-c [ Mandatory Arbitration Clauses In Certain Consumer Contracts Prohibited ];

[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 ];

[L.1] G.B.L. � 601 [ Debt Collection Practices ];��

[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 ];

[O.2] G.B.L. � 820 [ Sale Of Outdated Over The Counter Drugs ];

[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. � 302 [ retail Installment Sales ];

[R.2] 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 ];

[W.1] U.C.C. � 2-207(2)(B) [ Additional Contract Terms ];

[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] Education Law � 6512(1) [ Massage Therapy ];

[CC] 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 )];

[C-1] 15 U.S.C. �� 1692e, 1969k [ Fair Debt Collection Practices Act ];

[C-2] 15 U.S.C. � 1693f [ Electronic Fund Transfer Act ];

[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 ].

2.1] Recent Consumer Law Articles

Dickerson & Manning, Summary of Article 9 Class Actions in 2006, New York Law Journal, January 24, 2007, p. 4.

Dickerson, The Modern Cruise Passenger�s Rights and Remedies Part I, New York State Bar Association Journal, Vol. 79, No. 3

( March/April 2007 ), p. 10.

Dickerson, False, Misleading and Deceptive Advertising In The Travel Industry [ 2007 ] International Travel Law Journal 90.

Dickerson, The Modern Cruise Passenger�s Rights & Remedies-Part II, New York State Bar Association Journal, Vol. 79, No. 5( June 2007 ), p. 18.

Dickerson, Consumer Protection Law 2007: Guide to Statutes, New York Law Journal, July 25, 2007, p. 4.

Dickerson & Manning, Class Actions Under CPLR Art. 9 in 2007, New York Law Journal, January 18, 2008, p. 4.

Dickerson, New York State Consumer Protection Law and Class Actions in 2007- Part I, Vol. 80, No. 2, New York State Bar Association Journal, February 2008, 42.

Dickerson, New York State Consumer Protection Law and Class Actions-Part II, Vol. 80, No. 4, New York State Bar Association Journal, May 2008, p. 39.

Dickerson, Travel Abroad, Sue At Home, New York Law Journal, June 11, 2008, p. 4.

Morgenson, Illinois to Sue Countrywide, New York Times, nytimes.com, June 25, 2008 ( � The Illinois attorney general is suing Countrywide Financial, the troubled mortgage lender... contending that the company and its executives defrauded borrowers in the state by selling them costly and defective loans that quickly went into foreclosure...accused Countrywide...of relaxing underwriting standards, structuring loans with risky features and misleading consumers with hidden fees and fake marketing claims, like its heavily advertised � no closing costs loan �� ).

Debt Weight: The Consumer Credit Crisis in New York City and Its Impact on the Working Poor available at www.urbanjustice.org/cdp������������������������������������������������������������������

News & Trends, Rebate ripoffs spark consumer lawsuits, new legislation, Trial November 2007. P. 14 ( discussing limited value of some rebate programs ). See e.g., Faigman v. AT&T Mobility LLC, 2007 WL 2088561 ( N.D. Cal. 2007 )( � Plaintiffs are California residents who claim that they were mislead into purchasing mobile phones and service contracts from Cingular as a result of a misleading rebate program...Plaintiffs claim that Cingular�s practice of marketing its rebates as directly reducing the cost of Cingular cell phones by the dollar amount of the rebate is misleading because the VISA Rewards Cards do not reduce the cost of Cingular phones by the value of the rebate. The cards are less valuable than cash or check, according to plaintiffs, due to the limitations and restrictions placed upon the cards...Plaintiffs identify the following restrictions which are not disclosed in Cingular�s advertisements: the cards must be activated, the cards are only accepted at certain locations, the cards can incur service charges, the cards will be declined in transactions that exceed the balance of the card, the cards expire, the cards are not redeemable for cash, the cards do not earn interest, the cards are not divisible, the cards are not transferable and the cards are issued in maximum increments of $50 �.

Points Mania, Consumer Reports, July 2008, p. 12 ( � With just about every retailer and credit-card issuer offering a rewards program, you might wonder which, if any, are worth the bother. The answer: Not many � ).

Extended warranties: A high priced gamble, Consumer Reports, April 2008, p. 26 ( � Our survey of 8,000 new-car buyers shows they are usually a poor deal � ).

Best & Worst Credit Cards, Consumer Reports, October 2007, p. 12 ( � Credit cards might look pretty much alike, but our new survey shows vast differences in how pleased people are with their plastic. And we�re not just talking about interest rates, which vary widely from one card to another � ).

Banks, Contract Law, Scope of Forum Selection: �Phillips v. Audio Active�, New York Law Journal, September 17, 2007, p. 3.

Confessore & Kershaw, As Home Health Care Industry Booms, Little Oversight to Counter Fraud, The New York Times, Metro Section, September 2, 2007, p. 1 ( � It is one of New York�s fastest growing industries, driven by government policy and nourished by tax dollars. But as the home health care industry has expanded, the state appears to have been a step behind, with a confusing hodgepodge of regulations and agencies to police it, experts and state officials say � ).

Schepp, Rules are few on product dating, Journal News, January 20, 2008, p. 1 ( � Federal, state laws do little to stop the sale of outdated food items � ).

Cuomo to sue Rite Aid, CVS, Journal News, June 13, 2008, p. 1 ( � State Attorney General Andrew Cuomo plans to sue Rite Aid and CVS, claiming they sell expired products-including milk, eggs, medicines and baby formula-at stores across New York � ).

Drury, Kmart fined $1.5M over price tags, Journal News, April 2, 2008, p. 1 ( � An Administrative law judge has ordered giant retailer Kmart to pay a $1.56 million fine after Westchester County inspectors found more than 1,500 items at stores in Yorktown and Greenburgh that did not have price tags � ).

Seven Ways to Challenge a Foreclosure on Standing Grounds, NCLC Reports, Bankruptcy and Foreclosures Edition, Vo. 26, March/April 2008, p. 1.

Twelve Reasons to Love the Magnuson-Moss Warranty Act, NCLC Reports, Deceptive Practices and Warranties Edition, Vol. 26, January/February 2008, p. 1.

Thirteen Ways to Use Other Parties� Misconduct to Defend a Foreclosure, NCLC Reports, Deceptive Practices and Warranties Edition, Vo. 26, November/December 2007.

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^[xi]. G.B.L. � 349 allows consumers and, possibly, businesses^[xii] 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) �.^[xiii] 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 �^[xiv]. Attorneys fees and costs may be recovered as well.

A] History & Philosophy

As stated by Justice Graffeo in the dissenting opinion in Matter of Food Parade, Inc. v. Office of Consumer Affairs^[xv],

�� This Court has broadly construed general consumer protection laws to effectuate their remedial purposes, applying the state deceptive practices law to a full spectrum of consumer-oriented conduct, from the sale of � vanishing premium � life insurance policies...to the provision of infertility services...We have repeatedly emphasized that ( G.B.L. � 349 ) and section 350, its companion...� apply to virtually all economic activity, and their application has been correspondingly broad...The reach of these statutes provide[s] needed authority to cope with the numerous, ever-changing types of false and deceptive business practices which plague consumers in our State �...In determining what types of conduct may be deceptive practices under state law, this Court has applied an objective standard which asks whether the � representation or omission [ was ] likely to mislead a reasonable consumer acting reasonably under the circumstances �...taking into account not only the impact on the � average consumer � but also on � the vast multitude which the statutes were enacted to safeguard-including the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions ��.

B] Consumer Oriented Conduct

To establish a violation of G.B.L. � 349 the consumer must demonstrate that the alleged misconduct has � a broad impact on consumers at large �^[xvi], constitutes � consumer-oriented conduct �^[xvii] and does not involve private disputes^[xviii].

C] Stating A Cognizable Claim

As stated in Small v. Lorillard Tobacco Co.^[xix] � 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 �.

In Pelman v. McDonald�s Corp.^[xx] the Court stated �...To state a claim for deceptive practices under section 349, a plaintiff must show: (1) that the act, practice or advertisement was consumer-oriented; (2) that the act, practice or advertisement was misleading in a material respect; and (3) that the plaintiff was injured as a result of the deceptive act, practice or advertisement...The standard for whether an act or practice is misleading is objective, requiring a showing that a reasonable consumer would have been misled by the defendant�s conduct... Omissions, as well as acts, may form the basis of a deceptive practices claim...traditional showings of reliance and scienter are not required under GBL � 349 �.

In Ladino v. Bank of America^[xxi] the Court dismissed the GBL 349 claim because he � alleges only that the defendant�s predecessor, Fleet, engaged in a � deceptive practice � by issuing a loan to the third party without knowledge of the Plaintiff �. Although Fleet�s alleged conduct may have been negligent it did not mislead the plaintiff in any material way and did not constitute a � deceptive act ��.

In Relativity Travel, Ltd. V. JP Morgan Chase Bank ^[xxii] the Court stated � the Complaint alleges that Relativity was injured because it paid more for its foreign currency that what was required by the conversion rate applicable at the time of each transaction. Relativity�s allegation that it was injured by having been charged an undisclosed additional amount on foreign currency transactions is sufficient to state a ( G.B.L. � 349 ) claim �.

In Berkman v. Robert�s American Gourmet Food, Inc.^[xxiii], a class of consumers of Pirate�s Booty, Veggie Booty and Fruity Booty brands snack food alleged defendant�s advertising � made false and misleading claims concerning the amount of fat and calories contained in their products �. Noting that certification of a settlement class requires heightened scrutiny the Court denied class certification to the GBL 350 claim because individual issues of reliance predominated [ � common reliance on the false representations of the fat and caloric content...cannot be presumed ( in GBL 350 claims ) � ]^[xxiv], but noted that certification of the GBL 349 claim may be appropriate if limited to New York residents [ � causes of action predicated on GBL 349 which do not require reliance ( may be certifiable but ) a nationwide class certification is inappropriate � ]^[xxv]. ����

In Baron v. Pfizer, Inc.^[xxvi] The Court stated that � for plaintiff to state a cause of action under ( G.B.L. � 349 ) plaintiff needs to allege more than being prescribed a medication for off-label use and paying for such medication since prescribing FDA-approved medications for off-label uses appears to be a common practice in the medical community...plaintiff has failed to connect the allegations regarding defendant�s deceptive conduct to any actions taken with regard to the plaintiff �.

�A well pled G.B.L. � 349 complaint 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^[xxvii] ]. In addition, a G.B.L. � 349 complaint should identify the deceptive advertising and explain why and how the challenged advertising is materially deceptive [ Pelman v. McDonald�s Corp.^[xxviii] ].

D] Preemption

G.B.L. �� 349, 350 may be pre-empted by other consumer protection statutes^[xxix] [ Stone v. Continental Airlines^[xxx]( airline bumping G.B.L. � 349, 350 claims preempted by federal airline regulations ); People v. Applied Card Systems, Inc.^[xxxi] ( � We next reject...contention that ( TILA ) preempted petitioner�s claims ( which ) pertain to unfair and deceptive acts and practices � ); Batas v. Prudential Insurance Company of America^[xxxii]( � � plaintiff�s causes of action for...violations of ( GBL 349, 350 ) were properly sustained over defendants� objections that, under Public Health Law 4406, the responsibility for regulating the contracts of Health Maintenance Organizations (HMOs) lies with the Commissioner of the Department of Health. Nothing in that section or elsewhere in the statutory scheme suggests a clear legislative intent to preempt common-law or other rights and remedies � )].

E] Actual Injury Necessary

The complaint must allege actual injury arising from the alleged violations of G.B.L. � 349^[xxxiii] [ Small v. Lorillard Tobacco Co.^[xxxiv]( 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 )].

In Vigiletti v. Sears, Roebuck & Co.^[xxxv] a class of consumers alleged that Sears marketed its Craftsman tools � as � Made in USA � although components of the products were made outside the United States as many of the tools have the names of other countries, e.g., � China � or � Mexico � diesunk or engraved into various parts of the tools �. In dismissing the GBL 349 claim the Court found that plaintiffs had failed to prove actual injury [ � no allegations...that plaintiffs paid an inflated price for the tools...that tools purchased...were not made in the U.S.A. or were deceptively labeled or advertised as made in the U.S.A. or that the quality of the tools purchased were of lesser quality than tools made in the U.S.A. � ], causation [ � plaintiffs have failed to allege that they saw any of these allegedly misleading statements before they purchased Craftsman tools � ] and territoriality [ � no allegations that any transactions occurred in New York State � ].

In Baron v. Pfizer, Inc.^[xxxvi] a class of purchasers of the drug Neurontin asserted claims of fraud, violation of GBL 349 and unjust enrichment � based on claims arising from � off-label � uses � for which FDA approval had not been received. Although the FDA had approved Neurontin only for the treatment of epilepsy, � From June 1995 to April 2000...Warner Lambert...engaged in a broad campaign to promote Neurontin for a variety of pain uses, psychiatric conditions such as biploar disorder and anxiety and for certain other unapproved uses...Warner Lambert...ultimately agreed to plead guilty to (1) introducing into interstate commerce a misbranded drug that did not have adequate directions on the label for the intended uses of the drug and (2) introducing an unapproved new drug into interstate commerce ...consented to a criminal fine of $240 million...civil fines of $190 million �. The Court dismissed the GBL 349 claim because of an absence of actual injury [ � Without allegations that...the price of the product was inflated as a result of defendant�s deception or that use of the product adversely affected plaintiff�s health...failed even to allege...that Neurontin was ineffective to treat her neck pain and her claim that any off-label prescription was potential dangerous both asserts a harm that is merely speculative and is belied...by the fact that off-label use is a widespread and accepted medical practice � ] and the unjust enrichment claim.

In Ballas v. Virgin Media, Inc.^[xxxvii] a class of consumers charged the defendant cell phone service provider with breach of contract and a violation of GBL 349 in allegedly failing to properly reveal � the top up provisions of the pay by the minute plan � known as� Topping up ( which ) is a means by which a purchaser of Virgin�s cell phone ( � Oystr � ), who pays by the minute, adds cash to their cell phone account so that they can continue to receive cell phone service. A customer may top up by (1) purchasing Top Up cell phone cards that are sold separately; (2) using a credit or debit card to pay by phone or on the Virgin Mobile USA website or (3) using the Top Up option contained on the phone �. If customers do not � top up � when advised to do so they � would be unable to send or receive calls �. The Court dismissed the GBL 349 claim � because the topping-up requirements of the 18 cent per minute plan were fully revealed in the Terms of Service booklet �.

In People v. Direct Revenue, LLC^[xxxviii]� � [i]n response to consumers who complained that Direct Revenue�s ad-generating software was being installed on their computers without notice or consent the ( AG ) commenced an investigation...petitioner alleges that Direct Revenue�s software has been installed 150 million times in computers all over the world...Given the disclosures made in the ( end-user license agreement ( EULA )) regarding the pop-up ads and respondents� relevant policies no GBL 349 ( claim ) for a deceptive practice may be asserted. Petitioner does not identify anything in the EULA that is false, deceptive or misleading. Furthermore, the clear disclaimers and waivers of liabilities bar any remedy �.

See also: Shebar v. Metropolitan Life Insurance Co.^[xxxix]( � Inasmuch as plaintiff asserts that this consumer-oriented conduct was deceptive, material and caused him injury...these allegations sufficiently allege ( a violation of G.B.L. � 349 ) � ); Edelman v. O�Toole-Ewald Art Associates, Inc.^[xl]( appraiser malpractice; � failed to demonstrate, for purposes of ( G.B.L. � 349 ) that he suffered � actual � or pecuniary harm � ); Solomon v. Bell Atlantic Corp.^[xli] ( � 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...�� );� Ho v. Visa USA, Inc.^[xlii] ( consumers� G.B.L. � 349 claim arising from � retailers being required to accept defendants� debit cards if they want to continue accepting credit cards � dismissed because of � remoteness of their damages from the alleged injurious activity � ]; Goldberg v. Enterprise Rent-A-Car Company^[xliii] ( � Plaintiffs do not allege they were charged for any damage to the rented vehicles, they made no claims on the optional insurance policies they purchased and their security deposits were fully refunded � ); Thompson v. Foreign Car Center, Inc.^[xliv]( car purchaser charges dealer with � misrepresentations and non-disclosures concerning price, after-market equipment, unauthorized modification and compromised manufacturer warranty protect; G.B.L. � 349 claim dismissed because of failure � to demonstrate that they sustained an actual injury � ); Wendol v. The Guardian Life Ins. Co.^[xlv]( � allegations that defendants engaged in a deceptive business practice by using Berkshire instead of Guardian to administer the claims of its policyholders are insufficient to state a claim under ( G.B.L. � 349 ) in the absence of any allegation or proof that any misrepresentation regarding the entity administering the claims caused any actual injury � ); Meyerson v. Prime Realty Services, LLC^[xlvi], ( � a privacy invasion claim-and an accompanying request for attorney�s fees-may be stated under ( G.B.L. � 349 ) based on nonpecuniary injury � ); Weinstock v. J.C. Penney Co.^[xlvii]( no actual injury ); Sokoloff v. Town Sports International, Inc.^[xlviii]( � Such claim impermissibly � sets forth deception as both act and injury � � ); Donahue v. Ferolito, Vultaggio & Sons^[xlix] ( � ( plaintiff ) failed to establish any actual damages resulting from defendants� alleged deceptive practices and false advertising on the labels � ); Levine v. Philip Morris Inc.^[l]( � plaintiff must offer evidence that defendant made a misrepresentation...which actually deceived...and which caused her injury � ); Han v. Hertz Corp.^[li] ( � proof that a material deceptive act or practice caused actual�albeit not necessarily pecuniary�harm is required to impose compensatory damages � )].

F] 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 ]^[lii]. 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.^[liii] ].

In Shovak v. Long Island Commercial Bank^[liv] a class of borrowers sued a mortgage broker alleging that a � yield spread premium paid to the defendant by the nonparty lender was a kickback in exchange for the defendant procuring an interest rate on the plaintiff�s loan higher than the lender�s market or par rate �. Subsequently in Shovak v. Long Island Commercial Bank^[lv], the Court dismissed the GBL 349 claim finding that � there was no materially misleading statement, as the record indicated that the yield spread premium, which is not per se illegal, was fully disclosed to the plaintiff.

Matter of City Line Auto Mall, Inc. v. Mintz^[lvi](� However, with respect to the Jeep Cherokee that petitioner offered for sale with a registration sticker affixed stating that it was a Honda, there is no substantial evidence that a reasonable consumer would have been deceived by the sticker � ).

G] Scope Of G.B.L. � 349

G.B.L. � 349 applies to a broad spectrum of goods and services [ Karlin v. IVF America^[lvii] ( 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^[lviii] ( � encompasses a significantly wider range of deceptive business practices that were never previously condemned by decisional law � ); State of New York v. Feldman^[lix] ( G.B.L. � 349 � was intended to be broadly applicable, extending far beyond the reach of common law fraud � )].

H] Statute Of Limitations

G.B.L. � 349 claims are governed by a three-year period of limitations [ C.P.L.R. 241(2) ]^[lx]. G.B.L. � 349 claims accrue when the consumer � has been injured by a deceptive act �^[lxi].

I] Application To Non-Residents

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^[lxii] ] or received services in New York State [ Scott v. Bell Atlantic Corp.^[lxiii] ].

J] No Independent Claim Necessary

���� 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.^[lxiv] ].

K] Territorial Limitations

In Goshen v. The Mutual Life Ins. Co.^[lxv] [ consumers of vanishing premium insurance policies ] and Scott v. Bell Atlantic Corp.^[lxvi], [ consumers of Digital Subscriber Line ( DSL )^[lxvii] 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^[lxviii] of the � territorial reach � of G.B.L. � 349 the Court in Truschel v. Juno Online Services, Inc.^[lxix], 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^[lxx]., 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 ) � ].

L] Goods, Services & Misconduct 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^[lxxi] and Anilesh v. Williams^[lxxii] ( renting illegal apartments ); Yochim v. McGrath^[lxxiii] ( renting illegal sublets )];

[2] Attorney Advertising [ People v. Law Offices of Andrew F. Capoccia^[lxxiv]( � The alleged conduct the instant lawsuit seeks to enjoin and punish is false, deceptive and fraudulent advertising practices � ); Aponte v. Raychuk^[lxxv]( 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^[lxxvi]( misrepresenting the qualifications of an abusive aupair to care for handicapped children )];

[4-5] Auctions; Bid Rigging [ State of New York v. Feldman^[lxxvii] ( 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^[lxxviii]. ( 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.^[lxxix]( 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 ); People v. Condor Pontiac^[lxxx] ( 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 ) � )];

[6.1] Automotive: Repair Shop Labor Charges [ Tate v. Fuccillo Ford, Inc.^[lxxxi]( While plaintiff agreed to pay $225 to have vehicle towed and transmission � disassembled...to determine the cause of why it was malfunctioning � he did not agreed to have repair shop install a re-manufactured transmission nor did he agree to pay for � flat labor time � national time standard minimum of 10 hours for a job that took 3 hours to complete [ � defendant�s policy of fixing its times to do a given job on a customer�s vehicle based on a national time standard rather than being based upon the actual time it took to do the task without so advising each customer of their method of assessing labor costs is � a deceptive act or practice directed towards consumers and that such...practice resulted in actual injury to a plaintiff ��. Damages included, inter alia, the $254.04 cost of obtaining a loan to pay for the authorized labor charges, $776.88 for the labor overcharge and � $1,000 under GBL 349(h) for � willfully and knowingly violating � that statute resulting in the $776.88 overcharge for doing 3 hours of work and charging the plaintiff for 13.3 hours for a total of $2,030.92 � ];

[6.2] Automotive: Improper Billing For Services

[ Joyce v. SI All Tire & Auto Center^[lxxxii]( � the invoice ( violates G.B.L. � 349 ). Although the bill has the total charge for the labor rendered for each service, it does not set forth the number of hours each service took. It makes it impossible for a consumer to determine if the billing is proper. Neither does the bill set forth the hourly rate � )];

[6.3] Automotive: Defective Ignition Switches [ Ritchie v. Empire Ford Sales, Inc.^[lxxxiii] ( dealer liable for damages to used car that burned up 4 �� years after sale )];

[6.4] Automotive: Defective Brake Shoes [ Giarrantano v. Midas Muffler^[lxxxiv] ( Midas Muffler fails to honor brake shoe warranty )];

[6.5] Automotive: Motor Oil Changes [ Farino v. Jiffy Lube International, Inc.^[lxxxv] ( 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 )];

[6.6] Automotive: Extended Warranties [ Kim v. BMW of Manhattan, Inc.^[lxxxvi]( Misrepresented extended warranty; � The deceptive act that plaintiffs allege here is that, without disclosing to Chun that the Extension could not be cancelled, BMW Manhattan placed the charge for the Extension on his service invoice, and acted as though such placement have BMW Manhattan a mechanic�s lien on the Car. Such action constituted a deceptive practice within the meaning of GBL � 349...As a result of that practice, plaintiffs were deprived of the use of the Car for a significant time and Chun was prevented from driving away, while he sat in the Car for several hours, until he had paid for the Extension � )].

[6.7] Automotive: Refusal To Pay Arbitrator�s Award [ Lipscomb v. Manfredi Motors^[lxxxvii] ( 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 )];

[6.8] Baldness Products [ Karlin v. IVF^[lxxxviii] ( reference to unpublished decision applying G.B.L. � 349 to products for treatment of balding and baldness ); Mountz v. Global Vision Products, Inc.^[lxxxix] ( � 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.^[xc] ( 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] Cable TV: Charging For Unneeded Converter Boxes [ In Samuel v. Time Warner, Inc.^[xci], a class of cable television subscribers claimed a violation of G.B.L. � 349 and the breach of an implied duty of good faith and fair dealing because defendant allegedly � is charging its basic customers for converter boxes which they do not need, because the customers subscribe only to channels that are not being converted ...( and ) charges customers for unnecessary remote controls regardless of their level of service �. In sustaining the G.B.L. � 349 claim based, in part, upon � negative option billing �^[xcii], the Court held that defendant�s � disclosures regarding the need for, and/or benefits of, converter boxes and...remote controls are buried in the Notice, the contents of which are not specifically brought to a new subscriber�s attention...a claim for violation of GBL � 349 is stated � ].

[8.1] Cable TV: Imposition Of Unauthorized Taxes [ In Lawlor v. Cablevision Systems Corp.^[xciii]the plaintiff claimed that his monthly bill for Internet service � contained a charge for � Taxes and Fees �, Lawlor alleges Cablevision had no legal rights to charge these taxes or fees and seeks to recover ( those charges )...The Agreement for Optimum Online for Commercial Services could be considered misleading � ) ];

[9] Cell Phones [ Naevus International, Inc. v. AT&T Corp.^[xciv], ( 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^[xcv]( � 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^[xcvi] ( refusing to refund purchase price in cash for defective and shedding fake fur )];�� ����������������������������

[11] Computer Software [ Cox v. Microsoft Corp.^[xcvii]( � allegations that Microsoft engaged in purposeful, deceptive monopolistic business practices, including entering into secret agreements with computer manufacturers and distributors in inhibit competition and technological development and creating an � applications barrier � in its Windows software that...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 competitor�s innovations, services and products � )

[12] Credit Cards [ People v. Applied Card Systems, Inc.^[xcviii]( misrepresenting the availability of certain pre-approved credit limits; � solicitations were misleading...because a reasonable consumer was led to believe that by signing up for the program, he or she would be protected in case of an income loss due to the conditions described � ); People v. Telehublink^[xcix]( � 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^[c], ( � 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^[ci]( credit card company misrepresented the application of its low introductory annual percentage rate to cash advances )];

[13] Currency Conversion [ Relativity Travel, Ltd. V. JP Morgan Chase Bank ^[cii] ( � Relativity has adequately alleged that the Deposit Account Agreement was deceptive despite the fact that the surcharge is described in that agreement. The issue is not simply whether the Deposit Account Agreement was deceptive, but whether Chase�s overall business practices in connection with the charge were deceptive...Viewing Chase�s practices as a whole including the failure to list the surcharge on the Account Statement or on Chase�s website and the failure to properly inform its representatives about the surcharge are sufficient, if proved, to establish a prima facie case... Relativity�s allegation that it was injured by having been charged an undisclosed additional amount on foreign currency transactions is sufficient to state a ( G.B.L. � 349 ) claim � )];

[14] Customer Information [ Anonymous v. CVS Corp.^[ciii]� ( 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 � )];

[14.1] Debt Collection Practices [ Centurion Capital Corp. v. Druce^[civ] ( plaintiff, a purchaser of credit card debt, was held to be a debt collector as defined in Administrative Code of City of New York � 20-489 and because it was not licensed its claims against defendant must be dismissed; defendant�s counterclaim asserting that plaintiff violated G.B.L. � 349 by � bringing two actions for the same claim...is sufficient to state a ( G.B.L. � 349 ) cause of action �);

[15] Defective Dishwashers [ People v. General Electric Co., Inc^[cv]( 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^[cvi],( misrepresented and grossly overpriced water purification system ); Rossi v. 21st Century Concepts, Inc.^[cvii] ( selling misrepresented and overpriced pots and pans )];

[17] Educational Services [ In Drew v. Sylvan Learning Center Corp.^[cviii] parents enrolled their school age children in an educational services^[cix] program which promised � The Sylvan Guarantee. Your child will improve at least one full grade level equivalent in reading or math within 36 hours of instruction or we�ll provide 12 additional hours of instruction at no further cost to you �. After securing an $11,000 loan to pay for the defendant�s services and eight months, thrice weekly, on one hour tutoring sessions the parents were shocked when � based on the Board of Education�s standards, it was concluded that neither child met the grade level requirements. As a result plaintiff�s daughter was retained in second grade �. The Court found fraudulent misrepresentation, unconscionability and a violation of GBL 349 in that � defendant deceived consumers...by guaranteeing that its services would improve her children�s grade levels and there by implying that its standards were aligned with the Board of Education�s standards � and (3) unconscionability [ � There is absolutely no reason why a consumer interested in improving her children�s academic status should not be made aware, prior to engaging Sylvan�s services, that these services cannot, with any reasonable probability, guarantee academic success. Hiding its written disclaimer within the progress report and diagnostic assessment is unacceptable � ); People v. McNair ^[cx]( � deliberate and material misrepresentations to parents enrolling their children in the Harlem Youth Enrichment Christian Academy...thereby entitling the parents to all fees paid ( in the amount of $182,393.00 ); civil penalties pursuant to G.B.L. 350-d of $500 for each deceptive act or $38,500.00 and costs of $2,000.00 pursuant to CPLR � 8303(a)(6) ); Andre v. Pace University^[cxi] ( failing to deliver computer programming course for beginners ); Brown v. Hambric^[cxii] ( failure to deliver travel agent education program )]; Cambridge v. Telemarketing Concepts^[cxiii];

[17.1] Electricity Rates [ Emilio v. Robinson Oil Corp.^[cxiv] � the act of unilaterally changing the price ( of electricity ) in the middle of the term of a fixed-price contract has been found to constitute a deceptive practice... Therefore, the plaintiff should also be allowed to assert his claim under ( G.B.L. � 349 ) based on the allegation that the defendant unilaterally increased the price in the middle of the renewal term of the contract � );

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

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

[19.1] Excessive Modeling Fees [ Shelton v. Elite Model Management, Inc.^[cxvii]( models� claims of excessive fees caused � by reason of any misstatement, misrepresentation, fraud and deceit, or any unlawful act or omission of any licensed person � stated a private right of action under G.B.L. Article 11 and a claim under G.B.L. � 349 )];

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

[20.1] Extended Warranties [ � 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 �^[cxix]; Dvoskin v. Levitz Furniture Co., Inc.^[cxx] ( one year and five year furniture extended warranties; � the solicitation and sale of an extended warranty to be honored by an entity that is different from the selling party is inherently deceptive if an express representation is not made disclosing who the purported contracting party is. It is reasonable to assume that the purchaser will believe the warranty is with the Seller to whom she gave consideration, unless there is an express representation to the contrary. The providing of a vague two page sales brochure, after the sale transaction, which brochure does not identify the new party...and which contains no signature or address is clearly deceptive � ); Kim v. BMW of Manhattan, Inc.^[cxxi]( misrepresented extended warranty; $50 statutory damages awarded under G.B.L. 349(h)); Giarratano v. Midas Muffler^[cxxii]( 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; � the Midas Warranty Certificate was misleading and deceptive in that it promised the replacement of worn brake pads free of charge and then emasculated that promise by requiring plaintiff to pay for additional brake system repairs which Midas would deem necessary and proper � ); Petrello v. Winks Furniture^[cxxiii] ( misrepresenting a sofa as being covered in Ultrasuede HP and protected by a 5 year warranty )];

[20.2] Food : Nutritional Value [ Pelman v. McDonald�s Corp^[cxxiv]. ( misrepresentation of nutritional value of food products );

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[20.3] Food : Expiration Dates In Matter of Food Parade, Inc. v. Office of Consumer Affairs ^[cxxv], the Court of Appeals stated that � Many consumer goods bear expiration dates, as required by law. In the case before us, a supermarket displayed a number of products bearing expired dates. We must decide whether this is a deceptive trade practice within the meaning of the Nassau County Administrative Code [ Nassau County Administrative Code � 21-10.2 which is not preempted by G.B.L. � 820 governing sale of outdated over-the-counter drugs ]. We hold that offering such products for sale is not deceptive unless the retailer alters or disguises the expiration dates. Without doubt, the Legislature may prohibit and punish the sale of certain outdates or state products. We cannot, however, fit such sales or displays into the code�s � deceptive trade practice � prescription �. See also Matter of Stop & Shop Supermarket Companies, Inc. V. Office of Consumer Affairs of County of Nassau^[cxxvi]( � A supermarket�s mere display and sale of expired items is not a deceptive trade practice under Nassau County Administrative Code � 21-10.2(b)(1)(d) � );

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

[21.1] Guitars [ In Wall v. Southside Guitars, LLC^[cxxxi] the claimant � a vintage Rickenbacker guitar enthusiast...purchased the guitar knowing that there were four changed tuners, as represented by the advertisement and the sales representative. What he did not bargain for were the twenty or so additional changed parts as found by his expert. Defendants claim that the changed parts do not affect this specific guitar as it was a � player�s grade � guitar...While determining how much can be replaced in a vintage Rickenbacker guitar before it is just a plain old guitar may be intriguing, this court need not entertain it because an extensively altered guitar was not one that claimant saw advertised and not one that he intended to buy �; violation of GBL 349 found and damages of $830.00 awarded with interest ).

[22] Hair Loss Treatment [ Mountz v. Global Vision Products, Inc.^[cxxxii] ( � 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 Price Increases [� Matter of Wilco Energy Corp.^[cxxxiii] ( � Wilco solicited contracts from the public and, after entering into approximately 143 contracts, unilaterally changed their terms. This was not a private transaction occurring on a single occasion but rather, conduct which affected numerous consumers...Wilco�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 [ In Carney v. Coull Building Inspections, Inc.^[cxxxiv] the home buyer alleged that the defendant licensed home inspector � failed to disclose a defective heating system � which subsequently was replaced with a new � heating unit at a cost of $3,400.00 � although the � defendant pointed out in the report that the hot water heater was � very old � and � has run past its life expectancy �. In finding for the plaintiff the Court noted that although the defendant�s damages would be limited to the $395.00 fee paid and no private right of action existed under the Home Improvement Licensing Statute, Real Property Law 12-B, the plaintiff did have a claim under GBL 349 because of defendant�s � failure...to comply with RPL Article 12-B � by not including important information on the contract such as the � inspector�s licensing information � ); Ricciardi v. Frank d/b/a/ InspectAmerica Enginerring,P.C.^[cxxxv] ( civil engineer liable for failing to discover wet basement; violation of GBL 349 but damages limited to fee paid )];

[25] In Vitro Fertilization [ Karlin v. IVF America, Inc. ^[cxxxvi] ( misrepresentations of in vitro fertilization rates of success )];

[26] Insurance Coverage & Rates [ Gaidon v. Guardian Life Insurance Co. & Goshen v. Mutual Life Insurance Co.^[cxxxvii] ( misrepresentations that � out-of-pocket premium payments ( for life insurance policies ) would vanish within a stated period of time � ); Batas v. Prudential Insurance Company of America^[cxxxviii]( GBL 349 and 350 claims properly sustained regarding, inter alia, allegations of failure � to conduct the utilization review procedures...promised in their contracts �, �misrepresentation of facts in materials to induce potential subscribers to obtain defendants� health policies � ); Monter v. Massachusetts Mutual Life Ins. Co.^[cxxxix] ( misrepresentations with respect to the terms � Flexible Premium Variable Life Insurance Policy � ); Beller v. William Penn Life Ins. Co.^[cxl]( � Here, the subject insurance contract imposed a continuing duty upon the defendant to consider the factors comprising the cost of insurance before changing rates and to review the cost of insurance rates at least once every five years to determine if a change should be made...we find that the complaint sufficiently states a ( G.B.L. � 349 ) cause of action � ); Skibinsky v. State Farm Fire and Casualty Co.^[cxli] ( misrepresentation of the coverage of a � builder�s risk � insurance policy ); Brenkus v. Metropolitan Life Ins. Co.^[cxlii] ( misrepresentations by insurance agent as to amount of life insurance coverage ); Makastchian v. Oxford Health Plans, Inc.^[cxliii] ( 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 )];

[26.1] Insurance Claims Procedures [ Shebar v. Metropolitan Life Insurance Co.^[cxliv]( � Allegations that despite promises to the contrary in its standard-form policy sold to the public, defendants made practice of � not investigating claims for long-term disability benefits in good faith, in a timely fashion, and in accordance with acceptable medical standards... when the person submitting the claim...is relatively young and suffers from a mental illness �, stated cause of action pursuant to ( G.B.L. ) � 349 � ); Makuch v. New York Central Mutual Fire Ins. Co.^[cxlv] ( � 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 � ); Acquista v. New York Life Ins. Co.^[cxlvi] ( � 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.^[cxlvii] ( automobile insurance company fails to provide timely defense to insured )].

[27] Internet Marketing & Services [ Zurakov v. Register.Com, Inc.^[cxlviii]( � 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.^[cxlix] ( � 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^[cl] ( failing to deliver purchased magazine subscriptions ); Scott v. Bell Atlantic Corp.^[cli], ( misrepresented� Digital Subscriber Line ( DSL )^[clii] Internet services ).

On the issue of long arm jurisdiction over sellers of items on EBay see Sayeedi v. Walser^[cliii]( � EBay is a popular internet service that provides consumers with a way to buy and sell new or used goods in an auction style format over the internet. In 1995 EBay was one of the first to pioneer what has now become a ubiquitous form of e-commerce. As facilitators and providers of Ebay-type services continue to increase in popularity courts are, not surprisingly, faced with the task of applying settled law to modern technological dilemmas...No evidence ( to ) indicate Defendant may be purposely availing himself specifically to the business of New Yorkers or any desire to take advantage of New York law. The Defendant was prepared to sell his Chevrolet engine to whoever the highest bidder happened to be regardless of the state in which they happened to reside �; no basis for the assertion of long arm jurisdiction found � )];

[28] � Knock-Off � Telephone Numbers [ Drizin v. Sprint Corp.^[cliv] ( � 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^[clv] ( medical malpractice and deceptive advertising arising from lasik eye surgery )];

[29.1] Layaway Plans [ Amiekumo v. Vanbro Motors, Inc.^[clvi]( 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 ];

[29.2] Leases, Equipment [ Pludeman v. Northern Leasing Systems, Inc.^[clvii] ( equipment lessees asserted, inter alia, violations of GBL 349 arising from allegations that defendant � purposely concealed three pages of the four-page equipment lease...the concealment finds support in the first page...which contains all of the elements that would appear to form a binding contract including the signature line, a personal guaranty and forum selection, jury waiver and merger clauses, with the only references to the additional pages of the lease being in very small print...defendants did not provide plaintiffs with fully executed copies of the leases and overcharged them by deducting amounts from their bank accounts greater than those called for by the leases � )]; Sterling National Bank v. Kings Manor Estates^[clviii]( � The defendants ...claim that the equipment lease was tainted by fraud and deception in the inception, was unconscionable and gave rise to unjust enrichment...the bank plaintiff, knowing of the fraudulent conduct, purchased the instant equipment lease at a deep discount, and by demanding payment thereunder acted in a manner violating...( G.B.L. � 349 ) � )];

[30] Liquidated Damages Clause [ Morgan Services, Inc. v. Episcopal Church Home & Affiliates Life Care Community, Inc^[clix]. ( 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.^[clx] ( 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^[clxi]( pet dog dies from overdose of prescription drug, Feldene, mislabeled � 1 pill twice daily � when should have been � one pill every other day � )];���������������������������������������������

[32.1] Monopolistic Business Practices [ Cox v. Microsoft Corporation^[clxii] ( monopolistic activities are covered by G.B.L. � 349; � 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...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 competitor�s innovations, services and products � );

[33] Mortgages: Improper Fees & Charges [ MacDonell v. PHM Mortgage Corp.^[clxiii] ( mortgagors challenged defendant�s $40 fee � charged for faxing the payoff statements � [ which plaintiffs paid ] as violations of GBL 349 and RPL 274-a(2) [ � mortgagee shall not charge for providing the mortgage-related documents, provided...the mortgagee may charge not more than twenty dollars, or such amount as may be fixed by the banking board, for each subsequent payoff statement � ] which statutory claims were sustained by the Court finding that the voluntary payment rule does not apply^[clxiv] and noting that � To the extent that our decision in Dowd v. Alliance Mortgage Company ^[clxv] holds to the contrary it should not be followed � ); Kidd v. Delta Funding Corp.^[clxvi]( � 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^[clxvii]. ( consumers induced to pay for private mortgage insurance beyond requirements under New York Insurance Law � 6503 ); Negrin v. Norwest Mortgage, Inc.^[clxviii] ( mortgagors desirous of paying off mortgages charged illegal and unwarranted fax and recording fees ); Trang v. HSBC Mortgage Corp., USA^[clxix] ( $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] Mortgages & Home Equity Loans: Improper Closings [ Bonior v. Citibank, N.A.^[clxx] ( � The Court will set forth below several � problems � with this closing that might have been remedied by the active participation of legal counsel for the borrowers as well for the other participants �. The Court found that the lenders had violated G.B.L. � 349 by (1) failing to advise the borrowers of a right to counsel, (2) use of contradictory and ambiguous documents containing no prepayment penalty clauses and charging an early closing fee, (3) failing to disclose relationships settlement agents and (4) document discrepancies � The most serious is that the equity source agreement and the mortgage are to be interpreted under the laws of different states, New York and California respectively �; damages of $50.00 against each lender awarded pursuant to G.B.L. � 349(h) )].

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

[35.1] Packaging [ Sclafani v. Barilla America, Inc.^[clxxii]( deceptive packaging of retail food products )];

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

[37] Privacy [ Anonymous v. CVS Corp^[clxxiv]. ( 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^[clxxv] ( same ); Meyerson v. Prime Realty Services, LLC^[clxxvi], ( � landlord deceptively represented that ( tenant ) was required by law to provide personal and confidential information, including... social security number in order to secure renewal lease and avoid eviction � ) ];

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

[39] Real Estate Sales [ Gutterman v. Romano Real Estate^[clxxix] ( 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^[clxxx] ( deceptive advertisement and sale of condominium units ); B.S.L. One Owners Corp. v. Key Intl. Mfg. Inc.^[clxxxi]( deceptive sale of shares in a cooperative corporation ); Breakwaters Townhouses Ass�n. v. Breakwaters of Buffalo, Inc.^[clxxxii]( condominium units ); Latiuk v. Faber Const. Co.^[clxxxiii]( deceptive design and construction of home ); Polonetsky v. Better Homes Depot, Inc.^[clxxxiv]( 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.^[clxxxv] ( G.B.L. � 349 provides no relief for consumers alleging injury arising from the deceptive or misleading acts of a trading company ); Yeger v. E* Trade Securities LLC,^[clxxxvi]( � Although plaintiffs argue that the statute on its face, applies to virtually all economic activity, courts have held that federally regulated securities transactions are outside the ambit of section 349 � ); Fesseha v. TD Waterhouse Investor Services, Inc.^[clxxxvii]( � 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.^[clxxxviii] ( � 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.^[clxxxix]( G.B.L. � 349 covers securities transactions )];

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

[41.1] Suing Twice On Same Claim [ In Centurion Capital Corp. v. Druce^[cxci] ( plaintiff, a purchaser of credit card debt, was held to be a debt collector as defined in Administrative Code of City of New York � 20-489 and because it was not licensed its claims against defendant must be dismissed. In addition, defendant�s counterclaim asserting that plaintiff violated G.B.L. � 349 by � bringing two actions for the same claim...is sufficient to state a ( G.B.L. � 349 ) cause of action � )].

[41.2] Tax Advice [ Mintz v. American Tax Relief^[cxcii] ( � the second and fourth mailing unambiguously state that recipients of the ( post ) cards � can be helped Today � with their � Unbearable Monthly Payment Plan(s) � and that defendant can stop wage garnishments, bank seizures and assessment of interest and penalties. These two mailing...make explicit promises which...Cannot be described as � puffery � and could...be found to be purposely misleading and deceptive � ];

[41.3] Taxes Wrongfully Collected [ Lawlor v. Cablevision Systems Corp.^[cxciii] ( Cablevision subscribers challenged the imposition of taxes and fees on internet services [ � Lawlor alleges Cablevision had no legal right to charge these taxes or fees and seeks to recover...for the taxes and fees wrongfully collected � ] as a violation of GBL 349 [ � If the services had not been provided by a telecommunications provider, these services would not have been subject to the...taxes � ].

[42] Termite Inspections [ Anunziatta v. Orkin Exterminating Co., Inc.^[cxciv]( 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.,^[cxcv]( 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^[cxcvi] ( E-Z pass contract fails to reveal necessary information to customers wishing to make a claim and � on its face constitutes a deceptive practice � ), rev�d^[cxcvii] ( toll is a use tax and not consumer oriented transaction )];

�

[45] Travel Services [ Meachum v. Outdoor World Corp.^[cxcviii] ( misrepresenting availability and quality of vacation campgrounds; Malek v. Societe Air France^[cxcix]( provision of substitute flight and its destination did not mislead � plaintiff in any material way � ); Vallery v. Bermuda Star Line, Inc.^[cc] ( misrepresented cruise ); Pellegrini v. Landmark Travel Group^[cci] ( refundability of tour operator tickets misrepresented ); People v. P.U. Travel, Inc.^[ccii]( Attorney General charges travel agency with fraudulent and deceptive business practices in failing to deliver flights to Spain or refunds )];

[45.1] Tummy Tighteners In Johnson v. Body Solutions of Commack, LLC^[cciii] the plaintiff entered into a contract with defendant and paid $4,995 for a single � treatment to tighten her stomach area which lasted 30 minutes � wherein the defendant allegedly applied capacitive radio frequency generated heat to plaintiffs� stomach in order to tighten post childbirth wrinkled skin ( and according to plaintiff ) the service had no beneficial effect whatsoever upon her stomach �. At issue were various representations the essence of which was (1) the 30 minute treatment � would improve the appearance of her stomach area �, (2) � One using the websites, provided to him or her by the defendant, will thus be led to believe they are dealing with medical doctors when they go to Body Solutions...another page of this site, described � The...Procedure � as � available only in the office of qualified physicians who specialize in cosmetic procedures �...the website provided to the plaintiff for reference promises that treatment will be provided exclusively in a physician�s office...There is no...evidence that the plaintiff was treated in a physician�s or doctor�s office or by a doctor...The Court finds that the defendant has engaged in deceptive conduct under ( GBL 349 ) by not treating her in a medical doctor�s office under the proper supervision of a medical doctor and/or by representing...that she would receive noticeable beneficial results from a single 30 minute treatment and that the lack of proper medical involvement and supervision caused the lack of positive results �; plaintiff awards $4,995 together with interest )].

                      [46] TV Repair Shops [ Tarantola v. Becktronix, Ltd^[cciv]. ( 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 )� )];

[46.1] Unfair Competition Claims [ Not Covered By G.B.L. � 349 ][ In Leider v. Ralfe^[ccv], an action involving control of the diamond market, the Court held that there was no violation of G.B.L. � 349 ( � Plaintiffs contend that De Beers� broad-scale manipulation and pollution of the diamond market is deceptive unto itself. I see no principled distinction between this allegation and a generic antitrust scheme, albeit on a substantially larger scale than most. Plaintiffs cannot escape the fact that...New York has chosen not to include � unfair competition � or � unfair � practices in its consumer protection statute, language that bespeaks a significantly broader reach � )];

[47] Wedding Singers [ Bridget Griffin-Amiel v. Frank Terris Orchestras^[ccvi] ( the bait and switch^[ccvii] 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 �; violation of GBL 349 ) ]. For more on wedding litigation see Weddings Section below.

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.^[ccviii] ( defective � high speed � Internet services falsely advertised );� Card v. Chase Manhattan Bank^[ccix] ( 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 �^[ccx]. G.B.L. � 350 covers a broad spectrum of misconduct [ Karlin v. IVF America^[ccxi] ( � ( 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^[ccxii] ( 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 � ); People v. McNair ^[ccxiii] ( � deliberate and material misrepresentations to parents enrolling their children in the Harlem Youth Enrichment Christian Academy...thereby entitling the parents to all fees paid ( in the amount of $182,393.00 ); civil penalties pursuant to G.B.L. 350-d of $500 for each deceptive act or $38,500.00 and costs of $2,000.00 pursuant to CPLR � 8303(a)(6) ); People v. Applied Card Systems, Inc., 41 A.D. 3d 4, 834 N.Y.S. 2d 558 ( 2007 )( � Supreme Court imposed penalties lower than those proposed by petitioner. It keenly considered CCB�s profitability and found that it had the ability to pay penalties which would not be destructive of its business. While it did impose a $500 penalty with respect to respondents� misrepresentation of payoff amounts in connection with the re-aging of consumers� accounts, Supreme Court justified that penalty by finding the practice � particularly abhorrent �� )].

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 [ In Berkman v. Robert�s American Gourmet Food, Inc.^[ccxiv], ( a class of consumers of Pirate�s Booty, Veggie Booty and Fruity Booty brands snack food alleged defendant�s advertising � made false and misleading claims concerning the amount of fat and calories contained in their products �. Noting that certification of a settlement class requires heightened scrutiny [ � where a class action is certified for settlement purposes only, the class prerequisites ...must still be met and indeed scrutinized � ]^[ccxv], the Court denied class certification to the GBL 350 claim because individual issues of reliance predominated [ � common reliance on the false representations of the fat and caloric content...cannot be presumed ( in GBL 350 claims ) � ]^[ccxvi], but noted that certification of the GBL claim may be appropriate if limited to New York residents [ � causes of action predicated on GBL 349 which do not require reliance ( may be certifiable but ) a nationwide class certification is inappropriate � ]^[ccxvii]; See also: Pelman v. McDonald�s Corp.^[ccxviii]( G.B.L. � 350 requires proof of reliance );� Leider v. Ralfe^[ccxix] ( G.B.L. � 350 requires proof of reliance ); Gale v. International Business Machines Corp.^[ccxx]( � Reliance is not an element of a claim under ( G.B.L. � 349 )...claims under ( G.B.L. � 350 )...do require proof of reliance � )].

[A] Unlawful Use Of Name Of Nonprofit Organization

G.B.L. � 397 provides that � no person...shall use for advertising purposes...the name...of any non-profit corporation ...without having first obtained the written consent of such non-profit corporation �. In Metropolitan Opera Association, Inc. v. Figaro Systems, Inc.^[ccxxi] the Met charged a New Mexico company with unlawfully using its name in advertising promoting its � � Simultext � system which defendant claims can display a simultaneous translation of an opera as it occurs on a stage and that defendant represented that its system is installed at the Met � )].

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^[ccxxii] ( Used Car Lemon Law ), express warranty^[ccxxiii], implied warranty of merchantability^[ccxxiv] ( U.C.C. �� 2-314, 2-318 ), Vehicle and Traffic Law [ V&T ] � 417, strict products liability^[ccxxv] ] appears in Ritchie v. Empire Ford Sales, Inc.^[ccxxvi], 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.^[ccxxvii], 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 �^[ccxxviii]. In Giarratano v. Midas Muffler^[ccxxix], 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 �^[ccxxx] ]. 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^[ccxxxi]. See also: Chun v. BMW of Manhattan, Inc.^[ccxxxii]( misrepresented extended automobile warranty; G.B.L. � 349(h) statutory damages of $50 awarded ).

[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^[ccxxxiii] ( 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^[ccxxxiv]( 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; 2-A-212, 2-A-213; 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^[ccxxxv] ]. 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^[ccxxxvi].,( 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.^[ccxxxvii] ( disclaimer not conspicuous ); Mollins v. Nissan Motor Co., Inc.^[ccxxxviii]( � documentary evidence conclusively establishes all express warranties, implied warranties of merchantability and implied warranties of fitness for a particular purpose were fully and properly disclaimed � )]. 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.^[ccxxxix] ]

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

In Tarantino v. DaimlerChrysler Corp.^[ccxl], DiCinto v. Daimler Chrysler Corp.^[ccxli] and Carter-Wright v. DaimlerChrysler Corp.^[ccxlii], 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.^[ccxliii], 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^[ccxliv], 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^[ccxlv] 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.

In Spielzinger v. S.G. Hylan Motors Corp.^[ccxlvi]( 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 ).

And in Thompson v. Foreign Car Center, Inc.^[ccxlvii] a car purchaser charged a Volkswagen dealer with � misrepresentations and non-disclosures concerning price, after-market equipment, unauthorized modification and compromised manufacturer warranty protection �. The Court dismissed the claim under G.B.L. � 396-p ( � While GBL � 396-p(1) and (2) state that a contract price cannot be increased after a contract has been entered into, the record reveals that defendants appear to have substantially complied with the alternative provisions of GBL � 396-p(3) by providing plaintiffs with the buyers� form indicating the desired options and informing them they had a right to a full refund of their deposit � ). However, claims under G.B.L. � 396-q and P.P.L. � 302 were sustained because defendants had failed to sign the retail installment contract.

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

As stated by the Court of Appeals in Matter of DaimlerChrysler Corp., v. Spitzer^[ccxlviii] � In 1983, the Legislature enacted the New Car Lemon Law ( G.B.L. � 198-a ) � to provide New York consumers greater protection that afforded by automobile manufacturers� express limited warranties or the Federal Magnuson-Moss Warranty Act ��. 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.^[ccxlix] ].

In Kandel v. Hyundai Motor America^[ccl] ( � The purpose of the Lemon Law is to protect purchasers of new vehicles. This law is remedial in nature and therefore should be liberally construed in favor of consumers...The plaintiff sufficiently established that the vehicle was out of service by reason of repair of one or more nonconformities, defects or conditions for a cumulative total of 30 or more calendar days within the first 18,000 miles or two years...that the defendant was unable to correct a problem that � substantially impaired � the value of the vehicle after a reasonable number of attempts...and the defendant failed to meet its burden of proving its affirmative defense that the stalling problem did not substantially impair the value of the vehicle to the plaintiff...plaintiff was entitled to a refund of the full purchase price of the vehicle � ).

In General Motors Corp. V. Sheikh, 41 A.D. 3d 993, 838 N.Y.S. 2d 235 ( 2007 )the Court held that a vehicle subject to � conversion � is not covered by GBL 198-a ( � it is unrefuted that only evidence at the hearing regarding the cause of the leaky windshield was the expert testimony offered by petitioner�s area service manager, who examined the vehicle and its lengthy repair history and opined that the leak was caused by the extensive conversion of the vehicle by American Vans �.

The consumer has no claim under G.B.L. � 198-a if the dealer has � complied with this provision by accepting the vehicle, canceling the lease and refunding...all the payments made on account of the lease � [ Mollins v. Nissan Motor Co., Inc.^[ccli]] or if the � cause of the leaky windshield � was extensive alterations done after final assembly by the manufacturer� [ Matter of General Motors Corp. [ Sheikh ]^[cclii]].

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^[ccliii] ( 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^[ccliv]. However, the defect need not be present at the time of arbitration hearing^[cclv] [ � The question of whether such language supports an interpretation that the defect exist at the time of the arbitration hearing or trial. We hold that it does not �^[cclvi] ]. Civil Courts have jurisdiction to adjudicate Lemon Law refund remedy claims up to $25,000.^[cclvii]. In Alpha Leisure, Inc. v. Leaty^[cclviii]the Court approved an arbitrators award of $149,317 as the refund price of a motor home that � was out of service many times for repair �.

Attorneys fees and costs may be awarded to the prevailing consumer [ Kandel v. Hyundai Motor America^[cclix] ( � plaintiff was entitled to an award of a statutory attorney�s fee � ); Kucher v. DaimlerChrysler Corp.^[cclx]( � this court is mindful of the positive public policy considerations of the � Lemon Law � attorney fee provisions... Failure to provide a consumer such recourse would undermine the very purpose of the Lemon Law and foreclose the consumer�s ability to seek redress as contemplated by the Lemon Law � ); DaimlerChrysler Corp. v. Karman^[cclxi]( $5,554.35 in attorneys fees and costs of $300.00 awarded )].

[F.1] Used Cars

In Matter of City Line Auto Mall, Inc. v. Mintz^[cclxii] a used car dealer was charged with failing to provide consumers with essential information regarding the used vehicles they purchased. The Court found that � Substantial evidence supports the findings that for more than two years petitioner engaged in deceptive trade practices and committed other violations of its used-car license by failing to provide consumers with essential information ( Administrative Code 20-700, 20-701[a][2], namely the FTC Buyers Guide ( 16 CFR 455.2 ) containing such information as the vehicle�s make, model, VIN, warranties and service contract; offering vehicles for sale without the price being posted ( Administrative Code 20-7-8 ), failing to have a � Notice to Our Customers � sign conspicuously posted within the business premises ( 6 RCNY 2-103[g][1][v] ) and carrying on its business off of the licensed premises ( Administrative Code 20-268[a] )...We reject petitioner�s argument that respondent�s authority to license and regulate used-car dealers is preempted by State law. While Vehicle and Traffic Law 415 requires that used-car dealers be registered, the State has not assumed full regulatory responsibility for their licensing �.

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

In B & L Auto Group, Inc. v. Zilog^[cclxiii] 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 Goldsberry v. Mark Buick Pontiac GMC^[cclxiv] the Court noted that plaintiff � bought a used automobile and a � SmartChoice 2000 � extended warranty, only later to claim that neither choice was very smart �. Distinguishing Barthley v. Autostar Funding LLC^[cclxv] [ which offered � a tempting peg upon which the Court can hang its robe � ] the Court found for plaintiff in the amount $1,119.00 [ cost of the worthless extended warranty ] plus 9% interest.

[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 used cars costing more than $1,500 depending upon the number of miles on the odometer [ e.g., 18,000 miles to 36,000 miles a warranty � for at least 90 days or 4,000 miles �, 36,000 miles to 80,000 miles a warranty � for at least 60 days or 3,000 miles � and 80,000 miles to 100,000 miles a warranty � for 30 days or 3,000 miles � ][ Cintron v. Tony Royal Quality Used Cars, Inc.^[cclxvi] ( 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.^[cclxvii] ( 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^[cclxviii] ], does not apply to used cars with more than 100,000 miles when purchased^[cclxix] and has been applied to used vehicles with coolant leaks [ Fortune v. Scott Ford, Inc.^[cclxx] ], malfunctions in the steering and front end mechanism [ Jandreau v. LaVigne^[cclxxi], Diaz v. Audi of America, Inc.^[cclxxii] ], stalling and engine knocking [ Ireland v. JL�s Auto Sales, Inc.^[cclxxiii] ], vibrations [ Williams v. Planet Motor Car, Inc.^[cclxxiv] ], � vehicle would not start and the � check engine � light was on � [ DiNapoli v. Peak Automotive, Inc.^[cclxxv]] and malfunctioning � flashing data communications link light � [ Felton v. World Class Cars^[cclxxvi]].

An arbitrator�s award may be challenged in a special proceeding [ C.P.L.R. 7502 ][ Lipscomb v. Manfredi Motors^[cclxxvii] ] and � does not necessarily preclude a consumer from commencing a subsequent action provided that the same relief is not sought in the litigation [ Felton v. World Class Cars^[cclxxviii] ].

Recoverable damages include the return of the purchase price and repair and diagnostic costs [ Williams v. Planet Motor Car, Inc.^[cclxxix] , Sabeno v. Mitsubishi Motors Credit of America, 20 A.D. 3d 466, 799 N.Y.S. 2d 527 ( 2005 )( consumer obtained judgment in Civil Court for full purchase price of $20,679.60 � with associated costs, interest on the loan and prejudgment interest � which defendant refused to pay [ and also refused to accept return of vehicle ]; instead of enforcing the judgment in Civil Court the consumer commenced a new action, two claims of which [ violation of U.C.C. � 2-717 and G.B.L. � 349 ] were dismissed )].

[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.^[cclxxx]; Ritchie v. Empire Ford Sales, Inc.^[cclxxxi] ( dealer liable for Ford Escort that burns up 4 � years after purchase ); People v. Condor Pontiac^[cclxxxii] ( 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.^[cclxxxiii] ]. 

[K] Repossession & Sale Of Vehicle: U.C.C. � 9-611(b)

In Coxall v. Clover Commercials Corp.^[cclxxxiv], 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.

[L] Wrecked Cars

In Jung v. The Major Automotive Companies, Inc.^[cclxxxv] a class of 40,000 car purchasers charged the defendant with fraud � in purchas(ing) automobiles that were � wrecked � or � totaled � in prior accidents, had them repaired and sold them to unsuspecting consumers...purposely hid the prior accidents from consumers in an attempt to sell the repaired automobiles at a higher price for a profit �. The parties jointly moved for preliminary approval of a proposed settlement featuring (1) a $250 credit towards the purchase of any new or used car, (2) a 10% discount for the purchase of repairs, parts or services, (3) for the next three years each customer who purchases a used car shall receive a free CarFax report and a description of a repair, if any and (4) training of sales representatives � to explain a car�s maintenance history �, (5) projected settlement value of $4 million, (6) class representative incentive award of $10,000, and (7) $480,000 for attorneys fees, costs and expenses. The Court preliminarily certified the settlement class, approved the proposed settlement and set a date for a fairness hearing.

[M] Inspection Stations

In Stiver v. Good & Fair Carting & Moving, Inc.^[cclxxxvi] the plaintiff was involved in an automobile accident and sued an automobile inspection station for negligent inspection of one of the vehicles in the accident. In finding no liability the Court held � as a matter of public policy we are unwilling to force inspection stations to insure against ricks � the amount of which they may not know and cannot control, and as to which contractual limitations of liability [ might ] be ineffective �...If New York State motor vehicle inspection stations become subject to liability for failure to detect safety-related problems in inspected cars, they would be turned into insurers. This transformation would increase their liability insurance premiums and the modest cost of a State-mandated safety and emission inspection ( $12 at the time of the inspection in this case ) would inevitably increase � ).

���

5.1] Educational Services������������������������������������������

�In Drew v. Sylvan Learning Center Corp.^[cclxxxvii] parents enrolled their school age children in an educational services^[cclxxxviii] program which promised � The Sylvan Guarantee. Your child will improve at least one full grade level equivalent in reading or math within 36 hours of instruction or we�ll provide 12 additional hours of instruction at no further cost to you �. After securing an $11,000 loan to pay for the defendant�s services and eight months, thrice weekly, on one hour tutoring sessions the parents were shocked when � based on the Board of Education�s standards, it was concluded that neither child met the grade level requirements. As a result plaintiff�s daughter was retained in second grade �.

The Court found (1) fraudulent misrepresentation noting that no evidence was introduced � regarding Sylvan�s standards, whether those standards were aligned with the New York City Board of Education�s standards, or whether Sylvan had any success with students who attended New York City public schools �, (2) violation of GBL 349 citing Brown v. Hambric^[cclxxxix], Cambridge v. Telemarketing Concepts^[ccxc] and People v. McNair^[ccxci] in that � defendant deceived consumers...by guaranteeing that its services would improve her children�s grade levels and there by implying that its standards were aligned with the Board of Education�s standards � and (3) unconscionability [ � There is absolutely no reason why a consumer interested in improving her children�s academic status should not be made aware, prior to engaging Sylvan�s services, that these services cannot, with any reasonable probability, guarantee academic success. Hiding its written disclaimer within the progress report and diagnostic assessment is unacceptable � ]. See also: Andre v. Pace University^[ccxcii] ( failing to deliver computer programming course for beginners ).

6] Homes, Apartments & Coops

[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^[ccxciii] ].

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.^[ccxciv] ( 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.^[ccxcv]( construction of a new, custom home falls within the coverage of G.B.L. � 777(2) and not G.B.L. � 777-a(4) )].

[A.1] Home Inspections

In Carney v. Coull Building Inspections, Inc.^[ccxcvi] the home buyer alleged that the defendant licensed home inspector � failed to disclose a defective heating system � which subsequently was replaced with a new � heating unit at a cost of $3,400.00 � although the � defendant pointed out in the report that the hot water heater was � very old � and � has run past its life expectancy �. In finding for the plaintiff the Court noted that although the defendant�s damages would be limited to the $395.00 fee paid [ See e.g., Ricciardi v. Frank d/b/a/ InspectAmerica Enginerring,P.C.^[ccxcvii] ( civil engineer liable for failing to discover wet basement )] and no private right of action existed under the Home Improvement Licensing Statute, Real Property Law 12-B, the plaintiff did have a claim under GBL 349 because of defendant�s � failure...to comply with RPL Article 12-B � by not including important information on the contract such as the � inspector�s licensing information �.

In Mancuso v. Rubin^[ccxcviii] the plaintiffs retained the services of a home inspector prior to purchasing a house and relied on the inspector�s report stating � no � active termites or termite action was apparent �� but disclaimed by also stating that the � termite inspection certification � was �� not a warranty or a guaranty that there are no termites � and its liability, if any, would be � limited to the $200 fee paid for those services �. After the closing the plaintiffs claim they discovered � extensive termite infestation and water damage which caused the home to uninhabitable and necessitated extensive repair �. The Court found no gross negligence or fraud and limited contractual damages to the $200 fee paid. As for the homeowners the complaint was dismissed as well since no misrepresentations were made and the house was sold � as is � [ see Simone v. Homecheck Real Estate Services Inc.^[ccxcix] ]

[B] Home Improvement Contractor Licensing: C.P.L.R. � 3015(e); G.B.L. Art. 36-A; RCNY � 2-221; N.Y.C. Administrative Code � 20-387, Nassau County Administrative Code � 21-11.2

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) ][ see People v. Biegler^[ccc]( noting the differences between NYC Administrative Code 20-386 and Nassau County Administrative Code 21-11.1.7 ( � there is no requirement under the Nassau County home improvement ordinance that the People plead or prove that the � owner � of the premises did actually reside at or intend to reside at the place where the home improvement was performed in order to maintain liability under the ordinance � )].

�Should the home improvement contractor be unlicensed he will be unable to sue the homeowner for non-payment for services rendered [ Flax v. Hommel^[ccci] ( � Since Hommel was not individually licensed pursuant to Nassau County Administrative Code � 21-11.2 at the time the contract was entered and the work performed, the alleged contract...was unenforceable � ); CLE Associates, Inc. v. Greene,^[cccii] ( N.Y.C. Administrative Code � 20-387; � it is undisputed that CLE...did not possess a home improvement license at the time the contract allegedly was entered into or the subject work was performed...the contract at issue concerned � home improvement �...the Court notes that the subject licensing statute, �20-387, must be strictly construed � ); Goldman v. Fay^[ccciii] ( � although claimant incurred expenses for repairs to the premises, none of the repairs were done by a licensed home improvement contractor...( G.B.L. art 36-A; 6 RCNY 2-221 ). It would violate public policy to permit claimant to be reimbursed for work done by an unlicensed contractor � ); Tri-State General Remodeling Contractors, Inc v. Inderdai Baijnauth^{[ccciv] [cccv]}( salesmen do not have to have a separate license ); Franklin Home Improvements Corp. V. 687 6^th Avenue Corp.^[cccvi]( home improvement contractor licensing does not apply to commercial businesses ( � [t]he legislative purpose in enacting [ CPLR 3015(e) ] 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 was licensed � ); Altered Structure, Inc. v. Solkin^[cccvii]( contractor unable to seek recovery for home improvement work � there being no showing that it was licensed � ); Routier v. Waldeck^[cccviii] ( � 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 � ); Colorito v. Crown Heating & Cooling, Inc.^[cccix],( � Without a showing of proper licensing, defendant ( home improvement contractor ) was not entitled to recover upon its counterclaim ( to recover for work done ) � Cudahy v. Cohen^[cccx] ( unlicenced home improvement contractor unable to sue homeowner in Small Claims Courts for unpaid bills ); Moonstar Contractors, Inc. v. Katsir^[cccxi]( 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^[cccxii] ] while obtaining a license after performance of the contract is not sufficient[ B&F Bldg. Corp. V. Liebig^[cccxiii] ( � 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 � ); CLE Associates, Inc. v. Greene,^[cccxiv] ].

Licenses to operate a home improvement business may be denied based upon misconduct [ Naclerio v. Pradham^[cccxv] ( �... testimony was not credible...lack of regard for a number of its suppliers and customers...Enterprises was charged with and pleaded guilty to violations of Rockland County law insofar as it demanded excessive down payments from its customers, ignored the three-day right-to-cancel notice contained in its contract and unlawfully conducted business under a name other than that pursuant to which it was licensed � )].

[C]� New Home Housing Merchant Implied Warranty: G.B.L. � 777

G.B.L. � 777 provides, among other things, for a statutory housing merchant warranty^[cccxvi] for the sale of a new house which for (1) one year warrants � the home will be free from defects due to a failure to have been constructed in a skillful manner � and for (2) two years warrants that � the plumbing, electrical, heating, cooling and ventilation systems of the home will be free from defects due to a failure by the builder to have installed such systems in a skillful manner � and for (3) six years warrants � the home will free from material defects � [ See e.g., Etter v. Bloomingdale Village Corp.^[cccxvii]( breach of housing merchant implied warranty claim regarding defective tub sustained; remand on damages )].

In Farrell v. Lane Residential, Inc.^[cccxviii], after a seven day trial, the Court found that the developer had violated G.B.L. � 777-a regarding � defects with regard to the heating plant; plumbing; improper construction placement and installation of fireplace; master bedroom; carpentry defects specifically in the kitchen area; problems with air conditioning unit; exterior defects and problems with the basement such that the home was not reasonably tight from water and seepage �. With respect to damages the Court found that the cost to cure the defects was $35,952.00. Although the plaintiffs sought damages for the � stigma ( that ) has attached to the property � [ see Putnam v. State of New York^[cccxix]] the Court denied the request for a failure to present � any comparable market data �.

The statutory � Housing Merchant Implied Warranty may be excluded or modified by the builder of a new home if the buyer is offered a limited warranty that meets or exceeds statutory standards � [ Farrell v. Lane Residential, Inc.^[cccxx] ( Limited Warranty not enforced because � several key sections including the name and address of builder, warranty date and builder�s limit of total liability � were not completed )].

The statute may not apply to a � custom home � [ Security Supply Corporation v. Ciocca^[cccxxi]( � Supreme Court correctly declined to charge the jury with the statutory new home warranty provisions of ( GBL ) 777-a. Since the single-family home was to be constructed on property owned by the Devereauxs, it falls within the statutory definition of a � custom home � contained in ( GBL ) 777(7). Consequently, the provisions of ( GBL ) 777-a do not automatically apply to the parties� contract � )]. � While the housing merchant implied warranty under ( G.B.L. � 777-a ) is automatically applicable to the sale of a new home, it does not apply to a contract for the construction of a � custom home �, this is, a single family residence to be constructed on the purchaser�s own property � [ Sharpe v. Mann^[cccxxii]] and, hence, an arbitration agreement in a construction contract for a custom home may be enforced notwithstanding reference in contract to G.B.L. � 777-a [ Sharpe v. Mann^[cccxxiii]].

This Housing Merchant Implied Warranty can not be repudiated by � an � as is � clause with no warranties � [ Zyburo v. Bristled Five Corporation Development Pinewood Manor^[cccxxiv] ( � Defendant attempted to...Modify the Housing Merchant Implied Warranty by including an � as is � provision in the agreement. Under ( G.B.L. � 777-b ) the statutory Housing Merchant Implied Warranty may be excluded or modified by the builder of a new home only if the buyer is offered a limited warranty that meets or exceeds statutory standards [ Latiuk v. Faber Construction Co., Inc.^[cccxxv]; Fumarelli v. Marsam Development, Inc.^[cccxxvi]] .

The statute requires timely notice from aggrieved consumers [ Finnegan v. Hill^[cccxxvii]( � Although the notice provisions of the limited warranty were in derogation of the statutory warranty ( see ( G.B.L. � 777-b(4)(g)) the notices of claim served by the plaintiff were nonetheless untimely � ); Biancone v. Bossi^[cccxxviii]( plaintiff�s breach of warranty claim that defendant contractor failed � to paint the shingles used in the construction...( And ) add sufficient topsoil to the property �; failure � to notify...of these defects pursuant to...( G.B.L. � 777-a(4)(a) � ); Rosen v. Watermill Development Corp.^[cccxxix] ( notice adequately alleged in complaint ); Taggart v. Martano^[cccxxx]( 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^[cccxxxi] ( � 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^[cccxxxii]( 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^[cccxxxiii] 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. See also: Steer clear of online moving brokers, Consumer Reports, June 2005, p. 8 ( � hiring a broker may connect you with an incompetent mover who has been the target of complaints. At worst, the broker could be in league with rogue moving companies that lowball the initial quote, then jack it up at the destination, holding your possessions hostage until you pay the higher rate � ).

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

In Olukotun v. Reiff^[cccxxxiv]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.

[F] Arbitration Agreements: G.B.L. � 399-c

��� In Baronoff v. Kean Development Co., Inc.^[cccxxxv] the petitioners entered into construction contracts with respondent to manage and direct renovation of two properties. The agreement contained an arbitration clause which respondent sought to enforce after petitioners terminated the agreement refusing to pay balance due. Relying upon Ragucci v. Professional Construction Services^[cccxxxvi], the Court, in � a case of first impression �, found that G.B.L. � 399-c barred the mandatory arbitration clause and, further, that� petitioners� claims were not preempted by the Federal Arbitration Act [ While the ( FAA ) may in some cases preempt a state statute such as section 399-c, it may only do so in transactions � affecting commerce � � ].

[G] 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) ].

Notwithstanding New York�s adherence to the doctrine of caveat emptor in the sale of real estate � and imposed no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm�s length, unless there is some conduct on the part of the seller which constitutes active concealment �^[cccxxxvii] there have been two significant developments in protecting purchasers of real estate. First, as stated by the Courts in Ayres v. Pressman^[cccxxxviii] and Calvente v. Levy^[cccxxxix] any misrepresentations in the Property Condition Disclosure Statement mandated by Real Property Law 462 provides a separate cause of action for defrauded home buyers entitling plaintiff � to recover his actual damages arising out of the material misrepresentations set forth on the disclosure form notwithstanding the � as is � clause contained in the contract of sale �^[cccxl].

Second, the Court in Simone v. Homecheck Real Estate Services, Inc.^[cccxli], � when a seller makes a false representation in a Disclosure Statement, such a representation may be proof of active concealment...the alleged false representations by the sellers in the Disclosure Statement support a cause of action alleging fraudulent misrepresentation in that such false representations may be proof of active concealment �.

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

Tenants in Spatz v. Axelrod Management Co.^[cccxlii] and coop owners in Seecharin v. Radford Court Apartment Corp.^[cccxliii] 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 �^[cccxliv] and may be used affirmatively in a claim for property damage^[cccxlv] or as a defense in a landlord�s action for unpaid rent^[cccxlvi]. Recoverable damages may include apartment repairs, loss of personal property and discomfort and disruption^[cccxlvii].

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

In Goode v. Bay Towers Apartments Corp.^[cccxlviii] 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.

7] Insurance

A] Insurance Coverage & Rates [ Gaidon v. Guardian Life Insurance Co. & Goshen v. Mutual Life Insurance Co.^[cccxlix] ( misrepresentations that � out-of-pocket premium payments ( for life insurance policies ) would vanish within a stated period of time � ); Tahir v. Progressive Casualty Insurance Co.^[cccl]( trial on whether � a no-fault health service provider�s claim for compensation for charges for an electrical test identified as Current Perception Threshold Testing � is a compensable no-fault claim ); Beller v. William Penn Life Ins. Co.^[cccli]( � Here, the subject insurance contract imposed a continuing duty upon the defendant to consider the factors comprising the cost of insurance before changing rates and to review the cost of insurance rates at least once every five years to determine if a change should be made � ); Monter v. Massachusetts Mutual Life Ins. Co.^[ccclii]( misrepresentations with respect to the terms � Flexible Premium Variable Life Insurance Policy � ); Skibinsky v. State Farm Fire and Casualty Co.^[cccliii] ( misrepresentation of the coverage of a � builder�s risk � insurance policy ); Brenkus v. Metropolitan Life Ins. Co.^[cccliv]( misrepresentations by insurance agent as to amount of life insurance coverage ); Makastchian v. Oxford Health Plans, Inc.^[ccclv] ( 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 ); Whitfield v. State Farm Mutual Automobile Ins. Co.^[ccclvi]( automobile owner sues insurance company seeking payment for motor vehicle destroyed by fire; � Civil Court in general, and the Small Claims Part is particular, may entertain � insurance claims which involve disputes over coverage ).

B] Insurance Claims Procedures [ Shebar v. Metropolitan Life Insurance Co.^[ccclvii]( � Allegations that despite promises to the contrary in its standard-form policy sold to the public, defendants made practice of � not investigating claims for long-term disability benefits in good faith, in a timely fashion, and in accordance with acceptable medical standards...when the person submitting the claim...is relatively young and suffers from a mental illness �, stated cause of action pursuant to ( G.B.L. ) � 349 � ); Edelman v. O�Toole-Ewald Art Associates, Inc.^[ccclviii]( � action by an art collector against appraisers hire by his property insurer to evaluate damage to one of his paintings while on loan �; failure to demonstrate duty, reliance and actual or pecuniary harm ); Makuch v. New York Central Mutual Fire Ins. Co.^[ccclix] ( � 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 � ); Acquista v. New York Life Ins. Co.^[ccclx] ( � 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.^[ccclxi] ( automobile insurance company fails to provide timely defense to insured )].

8] Mortgages, Credit Cards & Loans

[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

(1) Truth In Lending Act, 15 U.S.C.A. �� 1601-1665 [ TILA^[ccclxii] ] [� JP Morgan Chase Bank v. Tecl^[ccclxiii] ( � The purpose of the TILA is to ensure a meaningful disclosure of the cost of credit to enable consumers to readily compare the various terms available to them, and the TILA disclosure statement will be examined in the context of the other documents involved � ); Community Mutual Savings Bank v. Gillen^[ccclxiv] ( borrower counterclaims in Small Claims Court for violation of TILA and is awarded rescission of loan commitment with lender and damages of $400.00; � TILA ( protects consumers ) from the inequities in their negotiating position with respect to credit and loan institutions...( TILA ) requir(es) lenders to provide standard information as to costs of credit including the annual percentage rate, fees and requirements of repayment...( TILA ) is liberally construed in favor of the consumer...The borrower is entitled to rescind the transaction � until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required ... together with a statement containing the material disclosures required... whichever is later...The consumer can opt to rescind for any reasons, or for no reason � ); Rochester Home Equity, Inc. v. Upton^[ccclxv] ( mortgage lock-in fee agreements are covered by TILA and RESPA; � There is nothing in the New York regulations concerning lock-in agreements that sets out what disclosures are required and when they must be made...In keeping with the trend toward supplying consumers with more information than market forces alone would provide, TILA is meant to permit a more judicious use of credit by consumers through a � meaningful disclosure of credit terms �...It would clearly violate the purpose behind TILA and RESPA to allow fees to be levied before all disclosures were made...the court holds that contracts to pay fees such as the lock-in agreements must be preceded by all the disclosures that federal law requires � ) ,

(2) the Fair Credit Reporting Act, 15 U.S.C. � 1681 [ Citibank ( South Dakota ) NA v. Beckerman^[ccclxvi] ( � The billing error notices allegedly sent by defendant were untimely since more than 60 days elapsed from the date the first periodic statement reflecting the alleged errors was transmitted � );� Tyk v. Equifax Credit Information Services, Inc.^[ccclxvii] ( consumer who recovered damages under the Fair Credit Reporting Act denied an award of attorneys fees ( � more must be shown than simply prevailing in litigation. It must be shown that the party who did not prevail acted in bad faith or for purposes of harassment � )].],

(3) the Real Estate Settlement Procedures Act, 12 U.S.C. � 2601 [ RESPA ][ Iyare v. Litton Loan Servicing, LP^[ccclxviii] ( borrower�s � entitlement to damages pursuant to ( RESPA ) for alleged improper late charges ( dismissed because ) none of plaintiff�s payments during the relevant period...was made in a timely fashion � )],

4) the Home Ownership and Equity Protection Act, 15 U.S.C. � 1639 [ HOEPA ][ Bank of New York v. Walden^[ccclxix] ( counterclaiming borrowers allege violations of TILA, HOEPA and Regulation Z; � mortgages were placed on...defendants� properties without their knowledge or understanding. Not the slightest attempt at compliance with applicable regulations was made by the lenders. No Truth in Lending disclosures or copies of any of the loan documents signed at the closing were given to the defendants. Thus, plaintiffs did not comply with TILA and Regulation Z...It also appears that the lenders violated HOEPA and Regulation Z in that they extended credit to the defendant based on their collateral rather than considering their incomes...The lenders also violated Regulation Z which prohibits lenders from entering into a balloon payment note with borrowers on high-interest, high fee loans �; injunction preventing eviction issued ) and

(5) Regulation Z, 13 C.F.R. �� 226.1 et seq. [ Bank of New York v. Walden^[ccclxx] ].

[E.1] Preemption of State Law Claims

�

TILA has been held to preempt Personal Property Law provisions governing retail instalment contracts and retail credit agreements [ Albank, FSB v. Foland^[ccclxxi] ], but not consumer fraud claims brought under G.B.L. �� 349, 350 [ People v. Applied Card Systems, Inc.^[ccclxxii] ( � We next reject...contention that ( TILA ) preempted petitioner�s claims ( which ) pertain to unfair and deceptive acts and practices � ); People ]; both TILA and RESPA have been held to � preempt any inconsistent state law � [ Rochester Home Equity, Inc. v. Upton^[ccclxxiii] ) and � de minimis violations with � no potential for actual harm � will not be found to violate TILA �^[ccclxxiv]. See also: Witherwax v. Transcare^[ccclxxv]

( negligence claim stated against debt collection agency )].

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

�In Dougherty v. North Ford Bank^[ccclxxvi] 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^[ccclxxvii] ].

���� �But in Fuchs v. Wachovia Mortgage Corp.^[ccclxxviii], a class of mortgagees challenged the imposition of a $100 document preparation fee for services as constituting the unauthorized practice of law and violative of Judiciary Law 478, 484 and 495(3). Specifically, it was asserted that bank employees � completed certain blank lines contained in a standard � Fannie Mae/Freddie Mac Uniform Instrument �...limited to the name and address of the borrower, the date of the loan and the terms of the loan, including the principal amount loaned, the interest rate and the monthly payment �. The plaintiffs, represented by counsel did not allege the receipt of any legal advice from the defendant at the closing. In dismissing the complaint that Court held that charging � a fee and the preparation of the documents ...did not transform defendant�s actions into the unauthorized practice of law �. Other States have addressed this issue as well^[ccclxxix].

[F.1] Electronic Fund Transfer Act: 15 U.S.C. � 1693f

������������������������������������������������������������������������������������������������������������������������������

In Household Finance Realty Corp. v. Dunlap^[ccclxxx], a mortgage foreclosure proceeding arising from defendant�s failure to make timely payments, the Court denied plaintiff�s summary motion since it was undisputed � the funds were available in defendant�s account to cover the preauthorized debit amount � noting that the Electronic Funds Transfer Act [ EFTA ] was enacted to � provide a basic framework establishing the rights, liabilities and responsibilities of participants in electronic fund transfer systems �...Its purpose is to � assure that mortgages, insurance policies and other important obligations are not declared in default due to late payment caused by a system breakdown �...As a consumer protect measure, section 1693j of the EFTA suspends the consumer�s obligation to make payment � [i]f a system malfunction prevents the effectuation of an electronic fund transfer initiated by [ the ] consumer to another person and such other person has agreed to accept payment by such means ��.

In Hodes v. Vermeer Owners, Inc.^[ccclxxxi] ( landlord and tenant � contemplated the use of the credit authorization for the preauthorized payment of rent or maintenance on substantially regular monthly intervals �; landlord�s unauthorized withdrawal of $1,066 to pay legal fees without advanced notice � constituted an unauthorized transfer pursuant to 15 USC � 1693e �.

[F.2] Predatory Lending Practices; High-Cost Home Loans

In LaSalle Bank, N.A. v. Shearon^[ccclxxxii] the plaintiff bank sought summary judgment in a foreclosure action [ � financing was for the full $355,000 � ] to which defendant homeowners [ � joint tax return of $29,567 � ] responded by proving that the original lender had engaged in predatory lending and violated New York State Banking Law 6-l(2). The court found three violations including (1) Banking Law 6-l(2)(k) [ � which deals with the plaintiff�s due diligence into the ability of the defendants to repay the loan. The plaintiff has not offered one scintilla of evidence of any inquiry into the defendant�s ability to repay the loan � ], (2) Banking Law 6-l(2)(l)(i) [ � which requires lending institutions to provide a list of credit counselors licensed in New York State to any recipient of a high cost loan � ] and (3) Banking Law 6-l(2)(m) [ � which states that no more that 3% of the amount financed is eligible to pay the points and fees associated with closing the loans on the real property...The $19,145.69 in expenses equates to almost 5.4% of the high cost loan and is a clear violation of the statute � ]. With respect to available remedies the Court stated that defendants � may be entitled to receive: actual, consequential and incidental damages, as well as all of the interest, earned or unearned, points, fees, the closing costs charged for the loan and a refund of any amounts paid � [ see discussion of this case in Scheiner, Federal Preemption of State Subprime Lending Laws, New York Law Journal, April 22, 2008, p. 4 and the case of Rose v. Chase Bank USA, N.A., 513 F. 3d 1032 ( 9^th Cir. 2008 )].

However, in Alliance Mortgage Banking Corp. v. Dobkin^[ccclxxxiii], also a foreclosure action wherein the defense of predatory lending was raised, the Court held that � She has claimed she was the victim of predatory lending, but has not demonstrated that there was any fraud on the part of the lender or even any failure to disclose fully the terms of the loan. She relies on only one statute, Banking Law 6-l. However, she has not been able to provide any proof that she falls under its provisions, nor under a related Federal statute. See Home Ownership and Equity Protection Act of 1994 [ � HOEPA � ]( 15 USC 1639 ). Neither of these statutes allow mortgagors to escape their legal obligations simply because they borrowed too much �.

[G] Credit Cards: Misrepresentations [ People v. Applied Card Systems, Inc.^[ccclxxxiv] ( misrepresenting the availability of certain pre-approved credit limits; � solicitations were misleading...because a reasonable consumer was led to believe that by signing up for the program, he or she would be protected in case of an income loss due to the conditions described � ); People v. Telehublink^[ccclxxxv] ( � 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^[ccclxxxvi], ( � 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^[ccclxxxvii] ( credit card company misrepresented the application of its low introductory annual percentage rate to cash advances )]. 

H] Identity Theft: G.B.L. �� 380-s, 380-l

In Kudelko v. Dalessio^{[ccclxxxviii]} the Court declined to apply retroactively to an identity theft scheme, G.B.L. �� 380-s and 380-l which provide a statutory cause of action for damages [ actual and punitive ] for identity theft [ � Identity theft has become a prevalent and growing problem in our society with individuals having their credit ratings damaged or destroyed and causing untold financial burdens on these innocent victims. As stated above the New York State Legislature, recognizing this special category if fraudulent conduct, gave individuals certain civil remedies when they suffered this harm � ] but did find that a claim for fraud was stated and the jury could decide liability, actual and punitive damages, if appropriate.

In Lesser v. Karenkooper.com^[ccclxxxix] the plaintiff � an E-Bay on-line store selling pre-owned luxury handbags and accessories, claims that defendant Karenkooper.com, a website selling luxury goods...sought to destroy her business (i) by making false allegations about her and her business on the internet ( and alleges, inter alia ) statutory identity theft pursuant to ( GBL ) 380-s �. In dismissing the 380-s claim the Court noted that � The claim asserted by plaintiff...does not involve credit reporting in any way and thus does not appear to fall within the intended scope of GBL 380-s �.

I] Debt Collection Practices: G.B.L. Article 29-H

In American Express Centurion Bank v. Greenfield^[cccxc] the Court held that there is no private right of action for consumers under G.B.L. �� 601, 602 [ Debt Collection Practices ]; See also Varela v. Investors Insurance Holding Corp^[cccxci].

In People v. Boyajian Law Offices^[cccxcii] the Court noted that NYFDCPA ( GBL 600(1)) � is a remedial statute and, as such, should be liberally construed... This is particularly true since the statute involves consumer protection...It is clear that the NYFDCPA was intended to protect consumers from improper collection practices...the Court will not read the statute as to preclude applying these protections to debtors whose checks were dishonored � ); People v. Applied Card Systems, Inc.^[cccxciii]( � considering the allegation that ACS engaged in improper debt collection practices ( G.B.L. Article 29-H ) the record reflects that despite an initial training emphasizing the parameters of the Debt Collection Procedures Act, the practice changed once actual collection practices commenced. ACS employees were encouraged to use aggressive and illegal practices and evidence demonstrated that the salary of both the collector and the supervisor were determined by their success...ACS collectors used rude and obscene language with consumers, repeatedly called them even when requested not to do so, misrepresented their identities to gain access and made unauthorized debits to consumer accounts � )].

In Centurion Capital Corp. v. Druce^[cccxciv] ( plaintiff, a purchaser of credit card debt, was held to be a debt collector as defined in Administrative Code of City of New York � 20-489 and because it was not licensed its claims against defendant must be dismissed. In addition, defendant�s counterclaim asserting that plaintiff violated G.B.L. � 349 by � bringing two actions for the same claim...is sufficient to state a ( G.B.L. � 349 ) cause of action � ].

In Asokwah v. Burt^[cccxcv]The Court addressed � the issue of whether the defendant improperly collected funds in excess of the outstanding judgment. The plaintiff asks this Court to determine whether the defendant improperly served additional restraining... even though the defendant had already restrained sufficient funds in plaintiff�s Citibank account �

[J] Fair Debt Collective Practices Act: 15 U.S.C. � 1692e, 1692k [ Larsen v. LBC Legal Group, P.C.^[cccxcvi]( lawfirm qualified as debt collector under FDCPA and violated various provisions thereof including threatening legal action that could not be taken, attempts to collect unlawful amounts, failing to convey true amount owed ); People v. Boyajian Law Offices^[cccxcvii] ( lawfirm violated FDCPA by threatening litigation without an intent to file suit, sought to collect time-barred debts and threatened legal action thereon and use of accusatory language ); Barry v. Board of Managers of Elmwood Park Condominium^[cccxcviii] ( FDCPA does not apply to the collection of condominium common charges because � common charges run with the unit and are not a debt incurred by the unit owner � ); American Credit Card Processing Corp. V. Fairchild^[cccxcix] ( FDCPA does not apply to business or commercial debts; � The FDCPA provides a remedy for consumers who are subjected to abusive, deceptive and unfair debt collection practices by debt collectors. The term � debt � as used in that act is construed broadly to include any obligation to pay monies arising out of a consumer transaction...and the type of consumer transaction giving rise to a debt has been described as one involving the offer or extension of credit to a consumer or personal, family and household expenses � )].

9] 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...�^[cd]. In DiMarzo v. Terrace View^[cdi], 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...��^[cdii] ] allows the consumer to recover actual damages upon proof of a bailment and/or negligence^[cdiii]. The enforceability of liability limiting clauses for lost clothing will often depend upon adequacy of notice [ Tannenbaum v. New York Dry Cleaning, Inc.^[cdiv] ( 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^[cdv]( $100 liability limitation in storage receipt enforced for $1,000 ripped and damaged beaver coat )].

10] 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 ��^[cdvi]. 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^[cdvii] 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^[cdviii], 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^[cdix], other Courts have found that GBL 359-fff gives consumers a private right of action^[cdx], a violation of which also constitutes a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs^[cdxi].

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^[cdxii], car rental agreements^[cdxiii], home improvement contracts^[cdxiv], insurance policies^[cdxv], dry cleaning contracts^[cdxvi] and financial brokerage agreements^[cdxvii]. However, this consumer protection statute is not available if the consumer also relies upon the same size type^[cdxviii] 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.^[cdxix] ( 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^[cdxx]( � 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 [ See e.g., Doe v. Great Expectations^[cdxxi] ( � Two claimants sue to recover ( monies ) paid under a contract for defendant�s services, which offer to expand a client�s social horizons primarily through posting a client�s video and profile on an Internet site on which other clients can review them and, therefore, as desired, approach a selected client for actual social interaction �; defendant violated G.B.L. � 394-c(3) by implementing a � massive overcharge � [ � Where, as here, the dating service does not assure that it will furnish a client with a specified number of social referrals per month, the service may charge no more than $25 � ] and � 394-c(7)(e) by failing to provide claimants with the required � Dating Service Consumer Bill of Rights �; full refund awarded as restitutionary damages ); Grossman v. MatchNet^[cdxxii] ( 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 ) � ).