Monthly Archives: February 2016

I Think That A Business Has Taken Advantage of Me, Is There Anything I Can Do? – New York’s Consumer Protection Laws – N.Y. GBL § 349 & N.Y. GBL § 350

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INTRO

If you believe that business has taken advantage of you then you may have a cause of action against that business! New York State, like many others, has enacted laws to protect consumers against predatory and/or deceptive business practices.  In New York, businesses are held to a high standard when dealing with consumers.

THE LAWS

N.Y. GBL § 349

New York General Business Law § 349 aka N.Y. GBL § 349: protects consumers against a business’s deceptive acts and unlawful practices. Section (a) of GBL § 349 states that “Deceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.” Although, the law seems to be pretty straight forward there have been many cases and court opinions defining GBL § 349.

According to Stutman v. Chemical Bank, 95 N.Y.2d 24, 29 (N.Y. 2000), In order to prevail on a claim for a Violation of N.Y. G.B.L. § 349, a Plaintiff must establish: (a) that the Defendant’s act was consumer oriented; (b) that the Defendant’s act was misleading, and (c) that the Plaintiff was injured as a result.

N.Y. GBL § 350

New York General Business Law § 350 aka N.Y. GBL § 350 prevents business from using false advertising. GBL § 350 states that: “False advertising in the conduct of any business, trade or commerce or in the furnishing of any service in this state is hereby declared unlawful.” According to GBL § 350  “The term ‘false advertising’ means advertising, including labeling, of a commodity, or of the kind, character terms or conditions of any employment opportunity if such advertising is misleading in a material respect.”

In order to prevail on a claim for a Violation of N.Y. G.B.L. § 350, a Plaintiff must establish: (a) that the Defendant’s advertisement was consumer oriented; (b) that the Defendant’s advertisement was misleading in a material respect; (c) Plaintiff was injured, and; (d) Plaintiff relied on the misleading advertisement.

What Does This Mean For You?

As discussed above New York’s consumer protection laws were enacted to protect consumers and deceitful business practices and false advertising. If you believe that you have fallen victim to such unlawful business practices you could be entitled to damages and attorney’s fees.

Under GBL § 349 the Court may increase the damages if a defendant/business willfully or knowingly violated GBL § 349. Additionally, the Court may award reasonable attorney’s fees to prevailing plaintiff under GBL  § 349(h).

Under GBL § 350 Court may increase the award of damages to an amount up to three times the actual damages up to $10,000, if the defendant/business willfully or knowingly violated the this section. Additionally, the Court may award reasonable attorney’s fees to prevailing plaintiff according to N.Y. GBL § 350(e).

CONCLUSION

New York State takes consumer protection very seriously and if you think that a business has taken advantage of you there are remedies available to you and an experienced attorney can help you determine whether or not you have a cause of action under New York General Business Law § 349 and/or New York General Business Law § 349.

I Was Never Handed the Summons, So How Was I Served?

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Potential clients will often contact our office and ask how a lawsuit could be filed against them if they have not been personally served with a Summons. Good Question! Unfortunately, New York Law does not require that the plaintiff, the party suing you, personally hand you the Summons. Notice of a law suit, the Summons and Complaint, can be served several different ways which we will discuss more below.

Personal Service

Personal service upon the defendant is the preferable means of service in New York; although, in our experience, this type of service is rare. It maybe surprising, but New York Law does not require that the plaintiff serve the defendant personally, just someone of suitable age.

CPLR 308 is the governing law regarding Personal Service in New York. In part, CPLR 308 sates:

Personal service upon a natural person shall be made by any of the following methods: by delivering the summons within the state to a person of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend “personal and confidential” and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date, time and place of service, except in matrimonial actions where service hereunder may be made pursuant to an order made in accordance with the provisions of subdivision a of section two hundred thirty-two of the domestic relations law.

What this means for you is that it is quite possible that the plaintiff could have served an old address, a family member, a roommate, etc. that never told you about the Summons that they were served with!

Can The Plaintiff Serve You By Leaving A Copy Of The Summons At Your Residence?

The short answer to the above is, YES! If the plaintiff is unable to serve a natural person they can effectuate service via Substituted Service.

In part, CPLR 308 sates:

Where service under paragraphs one and two [which we discussed above] cannot be made with due diligence, by affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by either mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope………….

This form of service, commonly referred to as “Nail and Mail” can be the most troubling for our clients because the plaintiff can simply leave a summons at your residence or business; by stuffing it under the door, taping it to the door and we have had cases where the plaintiff left the Summons in the hallway of our clients residence!! Please note that the plaintiff is required to mail an additional copy to the defendant at their last known residence or their actual place of business. Lastly, this type of service is only available after the plaintiff has made several attempts to serve personally.

Conclusion

If you have any reason to believe that you have been named as a defendant in a lawsuit you should take action immediately.  As mentioned above, the plaintiff does not have to serve you personally in order to effectuate proper service under New York Law. And, if you have been served, you only have a limited amount of time to respond to the lawsuit.