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1. Section 349 Business Law Statute
Section 349 (a) states, “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.”
2. Damages and counsel fees
Section 349 (f) states:
“any person who has been injured by reason of any violation of this section may bring an action in his own name to enjoin such unlawful act or practice, an action to recover his actual damages or fifty dollars, whichever is greater, or both such actions. The court may, in its discretion, increase the award of damages to an amount not to exceed three times the actual damages up to one thousand dollars, if the court finds the defendant willfully or knowingly violated this section. The court may award reasonable attorney`s fees to a prevailing plaintiff.”
Many states have triple damages which provide an incentive for defendants to settle, but the weak New York statute provides no such remedy, the plaintiff can only secure his actual damage after a trial so that a defendant is likely to offer to settle for less than such amount. Unlike New Jersey, the coiunsel fee provision is stated as “may,” not mandatory.
A. Penalty for offenses against elderly
In addition to any liability for damages a person or entity who engages in any conduct prohibited by said provisions of law, and whose conduct is perpetrated against one or more elderly persons, may be liable for an additional civil penalty not to exceed ten thousand dollars, if the factors in paragraph (b) of this subdivision are present.
(b) In determining whether to impose a supplemental civil penalty pursuant to paragraph (a) of this subdivision, and the amount of any such penalty, the court shall consider, in addition to other appropriate factors, the extent to which the following factors are present:
(1) Whether the defendant knew that the defendant`s conduct was directed to one or more elderly persons or whether the defendant`s conduct was in willful disregard of the rights of an elderly person;
(2) Whether the defendant`s conduct caused an elderly person or persons to suffer severe loss or encumbrance of a primary residence, principal employment or source of income, substantial loss of property set aside for retirement or for personal and family care and maintenance, substantial loss of payments received under a pension or retirement plan or a government benefits program; or assets essential to the health or welfare of the elderly person or whether one or more elderly persons were substantially more vulnerable to the defendant`s conduct because of age, poor health, infirmity, impaired understanding, restricted mobility, or disability, and actually suffered physical,
emotional, or economic damage resulting from the defendant`s conduct.
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