CONSUMER LAW 2003 UPDATE:THE JUDGE'S GUIDE TO NEW YORK STATE CONSUMER PROTECTION STATUTES

July 1, 2003. This Paper Was Prepared For The New York State Judicial Seminar Program 2003 And May Not Be Reproduced Without The Permission Of Thomas A. Dickerson

By Justice Thomas A. Dickerson1

See also:
•CONSUMER LAW 2008 UPDATE
•CONSUMER LAW 2006 UPDATE
• CONSUMER LAW 2005 UPDATE
•CONSUMER LAW 2001 UPDATE
•CONSUMER LAW 2000 UPDATE
Statutory claims alleging the violation of one or more New York State Consumer Protection Statutes are frequently asserted in cases brought before the Supreme Court, the Civil Court and in Small Claims Courts. This paper identifies and discusses those consumer protection statutes[2], both federal and state, most frequently used in New York State courts.


Table Of Useful New York State Consumer Protection Statutes

(1) General Business Law § 349 [ Deceptive & Misleading Business Practices ];

(2) General Business Law § 350 [ False Advertising ];

(3) General Business Law § 198-a [ New Car Lemon Law ];

(4) General Business Law § 198-b [ Used Car Lemon Law ];

(5) General Business Law § 201 [ Overcoats Lost At Restaurants ];

(6) General Business Law § 218-a [ Retail Refund Policies ];

(7) General Business Law § 359-fff [ Pyramid Schemes ];

(8) General Business Law § 396-p(5) [ New Car Purchase Contract Disclosure Requirements ];

(9) General Business Law § 396-u [ Merchandise Delivery Dates ];

(10) General Business Law § 399-p [ Restrictions On Automated Telemarketing Devices ];

(11) General Business Law § 399-pp [ Telemarketing And Consumer Fraud And Abuse Prevention Act ];

(12) General Business Law § 399-z [ No Telemarketing Sales Call Registry ];

(13) General Business Law § 617(2)(a) [ New Parts Warranties ];

(14) General Business Law §§ 752 et seq [ Sale Of Dogs And Cats ];

(15) General Business Law § 772 [ Home Improvement Frauds ];

(16) Civil Practice Law And Rules § 3015(e) [ Licensing Of Home Improvement Contractors ];

(17) Civil Practice Law And Rules § 4544 [ Consumer Transaction Documents Must Be In 8 Point Type ];

(18) Personal Property Law §§ 425-431 [ Door-To-Door Sales ];

(19) Personal Property Law §§ 500 et seq [ Rental Purchase Agreements ];

(20) Real Property Law § 235-b [ Warranty Of Habitability ];

(21) Real Property Law § 462 [ Property Condition Disclosure Act ];

(22) U.C.C. §§ 2-314, 2-318 [ Warranty Of Merchantability ];

(23) Vehicle & Traffic Law § 417 [ Warranty Of Serviceability ].


Table Of Useful Federal Consumer Protection Statutes

(1) 15 U.S.C. §§ 1601-1665 [ Truth In Lending Act ];

(2) 15 U.S.C. §§ 2301 et seq [ Magnuson-Moss Warranty Act ];

(3) 47 U.S.C. § 227 [ Federal Telephone Consumer Protection Act Of 1991 ].

 

General Business Law § 349 : Deceptive Business Practices

The most popular of New York State's many consumer protection statutes is General Business Law § 349 [ " GBL § 349 " ] which prohibits deceptive and misleading business practices[3]. GBL § 349 allows consumers to sue for $50.00 or actual damages which may be trebled up to $1,000.00 upon a finding of a " wil(ful) or know(ing) violat(ion) ".[4] Attorneys fees and costs may be recovered as well. As long as the deceptive business practice has " a broad impact on consumers at large "[5] and constitutes " consumer-oriented conduct "[6] proving a violation of GBL § 349 is straight forward. As stated in BNI N.Y. v. DeSanto [7] " ( GBL § 349 ) is a broad, remedial statute... directed towards giving consumers a powerful remedy. The elements of a violation of ( GBL § 349 ) are (1) proof that the practice was deceptive or misleading in a material respect and (2) proof that plaintiff was injured...There is no requirement under ( GBL § 349 ) that plaintiff prove that defendant's practices and acts were intentional, fraudulent or even reckless. Nor does plaintiff have to prove reliance upon defendant's deceptive practices ".


Threshold Of Deception

Initially GBL § 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 ] [8]. 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. [9] ].


Scope; Time To File; Accrual; Non-Residents; Independent Claim

GBL § 349 applies to a broad spectrum of goods and services [ Karlin v. IVF America [10] ( 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 '" )]. GBL § 349 is broader than common law fraud [Gaidon v. Guardian Life Insurance Company [11] ( " encompasses a significantly wider range of deceptive business practices that were never previously condemned by decisional law " ); State of New York v. Feldman [12] ( GBL § 349 " was intended to be broadly applicable, extending far beyond the reach of common law fraud " )]. Hence, GBL § 349 claims are governed by a three-year period of limitations [ C.P.L.R. 241(2) ]. GBL § 349 claims accrue when the consumer " has been injured by a deceptive act "[13]. GBL § 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 [14] ] or receive services in New York State [ Scott v. Bell Atlantic Corp. [15] ]. And, lastly, a GBL § 349 claim " does not need to be based on an independent private right of action " [ Farino v. Jiffy Lube International, Inc. [16] ].


Territorial Imperative

In Goshen v. The Mutual Life Ins. Co. [17] [ consumers of vanishing premium insurance policies ] and Scott v. Bell Atlantic Corp.[18], [ consumers of Digital Subscriber Line ( DSL )[19] 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 GBL § 349 requires that " the transaction in which the consumer is deceived must occur in New York ". Following this latest interpretation of the " territorial reach " of GBL § 349 the Court in Truschel v. Juno Online Services, Inc.[20], a consumer class action alleging misrepresentations by a New York based Internet service provider, dismissed the GBL § 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.,[21] a GBL 349 consumer class action involving cell phone service which " improperly credited calls causing ( the class ) to lose the benefit of weekday minutes included in their calling plans ", approved a proposed settlement on behalf of residents in New York, New Jersey and Connecticut [ " it would be a waste of judicial resources to require a different [ GBL § 349 ] class action in each state...where, as here, the defendants have marketed their plans on a regional ( basis ) " ].


Types Of Goods & Services Covered

The types of goods and services to which GBL § 349 applies include the following:

General Business Law § 350: False Advertising

Consumers who rely upon false advertising and purchase defective goods or services may sue for misrepresentation. In addition to common law claims for fraudulent misrepresentation the consumer may assert a violation of General Business Law § 350 [ " GBL § 350 " ] [ Scott v. Bell Atlantic Corp. [84] ( defective ' high speed ' Internet services falsely advertised ); Card v. Chase Manhattan Bank [85] ( bank falsely misrepresented that its LifePlus Credit Insurance plan would pay off credit card balances were the user to become unemployed )]. GBL § 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 "[86]. GBL § 350 covers a broad spectrum of misconduct [ Karlin v. IVF America [87] ( " ( this statute ) on ( its ) face appl(ies) to virtually all economic activity and ( its ) application has been correspondingly broad " )]. Proof of a violation of GBL 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 [88] ( magazine salesman violated GBL § 350; " ( the ) ( defendant's ) business practice is generally ' no magazine, no service, no refunds " although exactly the contrary as promised " ].


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[89] ( Used Car Lemon Law ), express warranty[90], implied warranty of merchantability[91] ( U.C.C. §§ 2-314, 2-318 ), Vehicle and Traffic Law [ V&T ] § 417, strict products liability[92] ] appears in Ritchie v. Empire Ford Sales, Inc. [93], a case involving a used 1990 Ford Escort which burned up 4 ½ 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. [94], a case involving a new Ford Crown Victoria, the hood, trunk and both quarter panels of which had been negligently repainted prior to sale.

General Business Law § 198-a: New Car Lemon Law

New York State's New Car Lemon Law [ GBL § 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. [95] ]. 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 [96] ( dealer must be afforded a reasonable number of attempts to cure defect )]. See, generally, Kucher v. DaimlerChrycler Corp [97]. ( judgment for defendant )].

General Business Law § 198-b: Used Car Lemon Law

New York State's Used Car Lemon Law [ GBL § 198-b ] provides limited warranty protection for ninety days or 4,000 miles, whichever comes first, for vehicles with odometer readings of less than 36,000 [ Cintron v. Tony Royal Quality Used Cars, Inc. [98] ( 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. [99] ( 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 [100] ] and has been applied to used vehicles with coolant leaks [ Fortune v. Scott Ford, Inc. [101] ], malfunctions in the steering and front end mechanism [ Jandreau v. LaVigne [102] ], stalling and engine knocking [ Ireland v. J.L.'s Auto Sales, Inc. [103] ] and vibrations [ Williams v. Planet Motor Car, Inc. [104] ] . An arbitrator's award may be challenged in a special proceeding [ C.P.L.R. 7502 ] [ Lipscomb v. Manfredi Motors [105] ]. Recoverable damages include the return of the purchase price and repair and diagnostic costs [ Williams v. Planet Motor Car, Inc. [106] ].

U.C.C. §§ 2-314, 2-318: Implied Warranty Of Merchantability

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 [107] ]. 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 [108]., ( 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. [109] ( disclaimer not conspicuous )].

General Business Law § 617(2)(a): Automotive Parts 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 "[110]. In Giarratano v. Midas Muffler [111], 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. General Business Law § 617(2)(a) [ " GBL § 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 "[112] ]. A violation of GBL 617(2)(a) is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs[113].

Vehicle & Traffic Law § 417: Warranty Of Serviceability

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. [114]; Ritchie v. Empire Ford Sales, Inc. [115] ( dealer liable for Ford Escort that burns up 4 ½ years after purchase )]. Recoverable damages include the return of the purchase price and repair and diagnostic costs [ Williams v. Planet Motor Car, Inc.[116] ].

General Business Law § 396-p(5): New Car Contract Disclosure Rule

In Borys v. Scarsdale Ford, Inc [117], 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 GBL § 198-a ( New Car Lemon Law ) and GBL § 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 GBL § 198-a the consumer must give the dealer an opportunity to cure the defect and (2) that under GBL § 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 ".

15 U.S.C. §§ 2301: Magnuson-Moss Warranty Act & Leased Vehicles

In Tarantino v. DaimlerChrysler Corp.[118], DiCinto v. Daimler Chrysler Corp.[119] and Carter-Wright v. DaimlerChrysler Corp.[120], 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.[121], the Court of Appeals held that the Magnuson-Moss Warranty Act does not apply to automobile leases.


C.P.L.R. § 4544 : Consumer Contracts Must Be In 8 Point Type

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. § has been applied in consumer cases involving property stolen from a health club locker[122], car rental agreements[123], home improvement contracts[124], dry cleaning contracts[125] and financial brokerage agreements[126].

However, this consumer protection statute 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. ___________________ ( cruise passenger contracts permitted to be in 4 point type )].


General Business Law § 201: Lost Overcoats

" 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..."[127]. In DiMarzo v. Terrace View [128], 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...'"[129] ] allows the consumer to recover actual damages upon proof of a bailment and/or negligence[130]. The enforceability of liability limiting clauses for lost clothing will often depend upon adequacy of notice [ Tannenbaum v. New York Dry Cleaning, Inc. [131] ( clause on dry cleaning claim ticket limiting liability for lost or damaged clothing to $20.00 void for lack of adequate notice )].


General Business Law § 218-a: Retail Refund Policies

Some stores refuse to refund the consumer's purchase price in cash upon the return of a product [ " Merchandise, in New Condition, May be Exchanged Within 7 Days of Purchase for Store Credit...No Cash Refunds or Charge Credits "[132] ]. In Baker v. Burlington Coat Factory Warehouse [133], a clothing retailer refused to refund the consumer's cash payment when she returned a shedding and defective fake fur two days after purchase. General Business Law § 218-a [ " GBL § 218-a " ] permits retailers to enforce a no cash refund policy if there are a sufficient number of signs notifying consumers of " its refund policy including whether it is ' in cash, or as credit or store credit only '"[134]. If, however, the product is defective and there has been a breach of the implied warranty of merchantability [ U.C.C. § 2-314 ] then consumers may recover all appropriate damages including the purchase price in cash [ U.C.C. § 2-714 ][135]. In essence, U.C.C. § 2-314 preempts[136] GBL § 218-a [ Baker v. Burlington Coat Factory Warehouse [137] ( defective shedding fake fur ); Dudzik v. Klein's All Sports [138] ( defective baseball bat ) ]. It has been held that a " failure to inform consumers of their statutory right to a cash or credit card charge refund when clothing is defective and unwearable " is a violation of GBL 349 which provides for treble damages, attorneys fees and costs[139].


General Business Law § 359-fff: Pyramid Schemes

"' ( 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 '"[140]. 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 [141] 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 [142], 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[143], other Courts have found that GBL 359-fff gives consumers a private right of action[144], a violation of which also constitutes a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs[145].


General Business Law § 396-u: Merchandise Delivery Dates

" In order to induce a sale furniture and appliance store salesman often misrepresent the quality, origin, price, terms of payment and delivery date of ordered merchandise "[146]. In Walker v. Winks Furniture, [147] a salesman promised delivery of new furniture within one week and then refused to return the consumer's purchase price when she canceled two weeks later unless she paid a 20% cancellation penalty. GBL § 396-u protects consumers from unscrupulous salesmen who promise that merchandise will be delivered by specific date when, in fact, it is not. A violation of GBL § 396-u [ failing to disclose an estimated delivery date in writing when the order is taken [ GBL § 396-u(2) ], failing to advise of a new delivery date and giving the consumer the opportunity to cancel [ GBL § 396-u(2)(b) ], failing to honor the consumer's election to cancel without imposing a cancellation penalty [ GBL § 396-u(s)(c) ], failing to make a full refund within two weeks of a demand without imposing a cancellation penalty [ GBL § 396-u(2)(d) ]] allows the consumer to rescind the purchase contract without incurring a cancellation penalty[148]. A violation of GBL 396-u is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs[149]. In addition, GBL 396-u(7) provides for a trebling of damages upon a showing of a wilful violation of the statute[150].


Telemarketing

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

47 U.S.C. § 227: Federal Telemarketing Rule

On the Federal level the Telephone Consumer Protection Act[151] [ TCPA ] prohibits users of automated telephone equipment " to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without express consent of the called party "[152]. The purpose of the TCPA is to provide " a remedy to consumers who are subjected to telemarketing abuses and ' to encourage consumers to sue and obtain monetary awards based on a violation of the statute ' "[153] The TCPA may be used by consumers in New York State Courts including Small Claims Court [ Kaplan v. Democrat & Chronicle [154]; Shulman v. Chase Manhattan Bank,[155] ( TCPA provides a private right of action which may be asserted in New York State Courts )]. Some Federal Courts have held that the states have exclusive jurisdiction over private causes of action brought under the TCPA[156] while some scholars have complained that " Congress intended for private enforcement actions to be brought by pro se plaintiffs in small claims court and practically limited enforcement to such tribunals "[157]. Under the TCPA consumers may recover their actual monetary loss for each violation or up to $500.00 in damages, whichever is greater. In Kaplan v. Life Fitness Center [158] the Court found " that plaintiff is entitled to damages of $500 for the TCPA violation ( and ) an additional award of damages of $500 for violation of the federal regulation ". The Court may treble damages upon a showing that " defendant willfully and knowingly violated "[159] the Act. In 2001 a Virginia state court class action against Hooters resulted in a jury award of $12 million on behalf of 1,321 persons who had received 6 unsolicited faxes[160]. Recently, a New York Civil Court in Redgayzer & Gratt v. Enine, Inc. [161] held that the TPCA, to the extent it restricts unsolicited fax advertisements, is unconstitutional as violative of freedom of speech.

General Business Law § 399-p: New York's Telemarketing Rule

On the State level, General Business Law § 399-p [ " GBL § 399-p " ] " also places restrictions on the use of automatic dialing-announcing devices and placement of consumer calls in telemarketing "[162] such as requiring the disclosure of the nature of the call and the name of the person on whose behalf the call is being made. A violation of GBL § 399-p allows recovery of actual damages or $50.00, whichever is greater, including trebling upon a showing of a wilful violation.

Consumers aggrieved by telemarketing abuses may sue in Small Claims Court and recover damages under both the TCPA and GBL § 399-p [ Kaplan v. First City Mortgage[163] ( consumer sues telemarketer in Small Claims Court and recovers $500.00 for a violation of TCPA and $50.00 for a violation of GBL § 399-p ); Kaplan v. Life Fitness Center [164] ( consumer recovers $1,000.00 for violations of TCPA and $50.00 for a violation of GBL § 399-p )].

General Business Law § 399-pp: Telemarketing Abuse Act

Under General Business Law § 399-z [ " GBL § 399-z " ], known as the " Do Not Call " rule, consumers may prevent telemarketers from making unsolicited telephone calls by filing their names and phone numbers with a statewide registry. " No telemarketer...may make...any unsolicited sales calls to any customer more than thirty days after the customer's name and telephone number(s)...appear on the then current quarterly no telemarketing sales calls registry ". Violations of this rule may subject the telemarketer to a maximum fine of $2,000.00. In March of 2002 thirteen telemarketers accepted fines totaling $217,000 for making calls to persons who joined the Do Not Call Registry.[165] In addition " [n]othing ( in this rule ) shall be construed to restrict any right which any person may have under any other statute or at common law ".

General Business Law § 399-pp: Telemarketing Abuse Prevention Act

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


C.P.L.R. § 3015(e): Licensing Of Home Improvement Contractors

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 [ New York Civil Practice Law And Rules § 3015(e) [ " CPLR § 3015(e) " ] ]. Should the home improvement contractor be unlicenced he will be unable to sue the homeowner for non-payment for services rendered [ Tri-State General Remodeling Contractors, Inc v. Inderdai Baijnauth [166] ( salesmen do not have to have a separate license ); Routier v. Waldeck [167] ( " The Home Improvement Business provisions...were enacted to safeguard and protect consumers against fraudulent practices and inferior work by those who would hold themselves out as home improvement contractors " ); Cudahy v. Cohen [168] ( unlicenced home improvement contractor unable to sue homeowner in Small Claims Courts for unpaid bills ); Moonstar Contractors, Inc. v. Katsir [169]( license of sub-contractor can not be used by general contractor to meet licensing requirements )].


General Business Law § 772: Home Improvement Frauds

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. [170] ( statutory damages of $500.00, attorneys fees of $1,500.00 and actual damages of $3,500.00 awarded )].


General Business Law § 752: Sale Of Dogs And Cats

Disputes involving pet animals are often brought in Small Claims Courts [ see e.g., Mongelli v. Cabral [171] ( " The plaintiffs ...and the defendants...are exotic bird lovers. It is their passion for exotic birds, particularly, for Peaches, a five year old white Cockatoo, which is at the heart of this controversy" ); Mathew v. Klinger [172] ( " Cookie was a much loved Pekinese who swallowed a chicken bone and died seven days later. Could Cookie's life have been saved had the defendant Veterinarians discovered the presence of the chicken bone sooner? " ); O'Brien v. Exotic Pet Warehouse, Inc. [173] ( pet store negligently clipped the wings of Bogey, an African Grey Parrot, who flew away ); Nardi v. Gonzalez [174] ( " Bianca and Pepe are diminutive, curly coated Bichon Frises ( who were viciously attacked by ) Ace...a large 5 year old German Shepherd weighing 110 pounds " )].

General Business Law §§ 752 et seq applies to the sale of dogs and cats by pet dealers and gives consumers rescission rights fourteen days after purchase if a licensed veterinarian " certifies such animal to be unfit for purchase due to illness, a congenital malformation which adversely affects the health of the animal, or the presence of symptoms of a contagious or infectious disease " [ GBL § 753 ]. The consumer may (1) return the animal and obtain a refund of the purchase price plus the costs of the veterinarian's certification, (2) return the animal and receive an exchange animal plus the certification costs, or (3) retain the animal and receive reimbursement for veterinarian services in curing or attempting to cure the animal. In addition, pet dealers are required to have animals inspected by a veterinarian prior to sale [ GBL § 753-a ] and provide consumers with necessary information [ GBL §§ 753-b, 753-c ].

Several Courts have applied GBL §§ 752 et seq in Small Claims Courts [ see e.g., Fuentes v. United Pet Supply, Inc. [175] ( miniature pinscher puppy diagnosed with a luxating patella in left rear leg; claims under GBL § 753 must be filed within fourteen days; claim valid under UCC § 2-324 ); Saxton v. Pets Warehouse, Inc. [176] ( consumer's claims for unhealthy dog are not limited to GBL § 753(1) but include breach of implied warranty of merchantability under UCC § 2-714 ); Smith v. Tate [177] ( five cases involving sick German Shepherds ); Sacco v. Tate [178] ( buyers of sick dog could not recover under GBL § 753 because they failed to have dog examined by licensed veterinarian ).


General Business Law §§ 425-431: Door-To-Door Sales

" Some manufacturers...favor door-to-door sales ( because ) ...the selling price may be several times greater than...in a more competitive environment (and)...consumers are less defensive...in their own homes and...are, especially, susceptible to high pressure sales tactics "[179]. Personal Property Law [ " PPL " ] §§ 425-431 "' afford(s) consumers a ' cooling-off' period to cancel contracts which are entered into as a result of high pressure door-to-door sales tactics'"[180]. PPL § 428 provides consumers with rescission rights should a salesman fail to complete a Notice Of Cancellation form on the back of the contract. PPL § 428 has been used by consumers in New York Environmental Resources v. Franklin [181] ( misrepresented and grossly overpriced water purification system ), Rossi v. 21st Century Concepts, Inc. [182] [ misrepresented pots and pans costing $200.00 each ], Kozlowski v. Sears [183] [ vinyl windows hard to open, did not lock properly and leaked ] and in Filpo v. Credit Express Furniture Inc. [184] [ unauthorized design and fabric color changes and defects in overpriced furniture ]. Rescission is also appropriate if the Notice of Cancellation form is not in Spanish for Spanish speaking consumers[185]. A failure to " comply with the disclosure requirements of PPL 428 regarding cancellation and refund rights " is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs[186]. In addition PPL 429(3) provides for an award of attorneys fees.


Real Property Law § 235-b: Warranty Of Habitability

Tenants in Spatz v. Axelrod Management Co. [187] and coop owners in Seecharin v. Radford Court Apartment Corp. [188] 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 "[189] and may be used affirmatively in a claim for property damage[190] or as a defense in a landlord's action for unpaid rent[191]. Recoverable damages may include apartment repairs, loss of personal property and discomfort and disruption[192].


Real Property Law §§ 462-465: Property Condition Disclosure Act

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) ].


Personal Property Law § 500 Rental Purchase Agreement

Personal Property Law §§ 500 et seq [ " PPL §§ 500 et seq ] provides consumers who enter into rental purchase agreements with certain reinstatement rights should they fall behind in making timely payments or otherwise terminate the contract [ PPL § 501 ]. In Davis v. Rent-A-Center of America, Inc [193] the Court awarded the consumer damages of $675.73 because the renter had failed to provide substitute furniture of a comparable nature after consumer reinstated rental purchase agreement after skipping payment.


15 U.S.C. §§ 1601-1665: Truth In Lending Act

Consumers may sue in Small Claims Court for a violation of the Federal Truth In Lending Act, 15 U.S.C.A. §§ 1601-1665 [ " TILA " ] and recover appropriate damages [ Community Mutual Savings Bank v. Gillen [194] ( 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 "[195]. TILA has been held to preempt Personal Property Law provisions governing retail instalment contracts and retail credit agreements [ Albank, FSB v. Foland [196] ].

FOOTNOTES

[1]. Thomas A. Dickerson is a Justice of the New York State Supreme Court, Ninth Judicial District, 111 Dr. Martin Luther King Blvd., White Plains, New York, 10606. See Justice Dickerson's Web Page http://members.aol.com/judgetad/index.html.

Justice Dickerson is the author of Travel Law, Law Journal Press, New York, 1981-2003, see Travel Law's Web Page at http://members.aol.com/travellaw/index.html, Class Actions: The Law of 50 States, Law Journal Press, 1988-2003, See Class Action's Web Page at http://members.aol.com/class50/index.html, and over 200 articles and papers on consumer law issues, many of which are available athttp://courts.state.ny.us/tandv.html and http://www.classactionlitigation.com/library/ca_articles.html

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

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

[4]. See e.g., Hart v. Moore, 155 Misc. 2d 203, 587 N.Y.S. 2d 477, 480 ( 1992 ). However, at least, one court has awarded damages exceeding the $1,000.00 limit. See Lipscomb v. Manfredi Motors, New York Law Journal, April 2, 2002, p. 21 ( Richmond Civ. Ct. ) ( damages consisted of the " balance owed to the claimant pursuant to the arbitrator's award...reduced to the jurisdictional amount of $3,000 " ).

[5]. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y. 2d 20, 623 N.Y.S. 2d 529, 532, 647 N.E. 2d>741 ( 1995 ). See also Walts v. Melon Mortgage Corporation, 259 A.D. 2d 322, 686 N.Y.S. 2d 428 ( 1999 )( " Plaintiffs have adequately alleged a materially deceptive practice aimed at consumers " ), appeal dismissed 94 N.Y. 2d 795, 700 N.Y.S. 2d 424, 722 N.E. 2d 504 ( 1999 ); McKinnon v. International Fidelity Insurance Co., 182 Misc. 2d 517, 522 ( N.Y. Sup. 1999 )( " the conduct must be consumer-oriented and have a broad impact on consumers at large " ).

[6]. Cruz v. NYNEX Information Resources, 263 A.D. 2d 285, 290, 703 N.Y.S. 2d 103 ( 1st Dept. 2000 ).

[7]. BNI New York Ltd. v. DeSanto, 177 Misc. 2d 9, 14-15, 675 N.Y.S. 2d 753 ( 1998 ).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[33]. Sims v. First Consumers National Bank,, __A.D. 2d__, New York Law Journal, March 27, 2002, p. 18, col. 1 ( 1st Dept. 2003 ).

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

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

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

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

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

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

[40] Andre v. Pace University, 161 Misc. 2d 613, 618 N.Y.S. 2d 975 ( 1994 ), rev'd on other grounds 170 Misc. 2d 893, 655 N.Y.S. 2d 777 ( 1996 ).

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

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

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

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

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

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

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

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

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

[50]. Ricciardi v. Frank d/b/a InspectAmerica Engineering, P.C., 163 Misc. 2d 337, 620 N.Y.S. 2d 918 ( 1994 ), mod'd 170 Misc. 2d 777, 655 N.Y.S. 2d 242 ( N.Y.A.T. 1996 ).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[74]. Fesseha v. TD Waterhouse Investor Services, Inc., 193 Misc. 2d 253, 747 N.Y.S. 2d 676 ( 2002 ).

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

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

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

[78]. Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris Inc.,,178 F. Supp. 2d 198 ( E.D.N.Y. 2001 ).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[119]. DiCinto v. DaimlerChrysler Corp., New York Law Journal, August 30, 2000, p. 24, col. 5 ( N.Y. Sup. ), aff'd __A.D.2d__,__N.Y.S.2d__( lst Dept. 2001 ).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

83. Baker v. Burlington Coat Factory Warehouse, 175 Misc. 2d 951, 673 N.Y.S. 2d 281, 283 ( 1998 ). Web Page, supra.

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

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

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

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

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

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

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

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

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

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

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

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

[148]. Walker v. Winks Furniture, 168 Misc. 2d 265, 640 N.Y.S. 2d 428, 430 ( 1996 ).

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

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

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

[152]. 47 USC § 227[b][1][B].

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

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

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

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

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

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

[159]. 47 USC § 227[b][3].

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[195]. Community Mutual Savings Bank v. Gillen, 171 Misc. 2d 535, 537, 655 N.Y.S. 2d 171 ( 1997 ).

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

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