2023 New York Laws › GBS - General Business › Article 26 - Miscellaneous › 396 - Unlawful Selling Practices.

§  396.  Unlawful  selling practices. 1. No person, firm, partnership,
association or corporation, or agent or employee thereof, shall, in  any
manner,   or   by   any  means  of  advertisement,  or  other  means  of
communication, offer for sale any merchandise, commodity, or service, as
part of a plan or scheme with the intent, design, or purpose not to sell
the merchandise, commodity, or service so advertised at the price stated
therein, or  with  the  intent,  design  or  purpose  not  to  sell  the
merchandise,  commodity,  or  service  so  advertised.  Nothing  in this
section shall apply  to  any  television  or  sound  radio  broadcasting
station  or  to  any  publisher  or printer of a newspaper, magazine, or
other form of printed advertising, who broadcasts, publishes, or  prints
such advertisement.
2.  a.  No  person,  firm, partnership, association or corporation, or
agent or employee thereof, shall, in any manner, or by any means,  offer
for  sale  goods,  wares  or  merchandise,  where the offer includes the
voluntary and unsolicited sending of goods,  wares  or  merchandise  not
actually  ordered  or  requested  by  the recipient, either orally or in
writing;  any  such  goods,  wares  or  merchandise  so  sent  shall  be
prominently  marked  upon  the  container  thereof  in  bold  letters as
follows: "THIS IS A GIFT.   PAYMENT NOT REQUIRED  FOR  THIS  ITEM".  The
receipt  of  any  goods,  wares  or  merchandise pursuant to an existing
membership or club arrangement in  which  the  recipient  receives  such
goods,  wares  or merchandise at specified intervals or a plan where the
recipient agrees to receive such goods,  wares  or  merchandise  without
further  obligation shall not be construed as the receipt of unsolicited
goods, wares or merchandise  for  the  purposes  of  this  section.  The
receipt  of  any  such unsolicited goods, wares or merchandise shall for
all purposes be deemed an unconditional gift to the  recipient  who  may
use  or  dispose  of  the  same  in  any  manner he sees fit without any
obligation on his part to the sender.
If after any such receipt deemed to be  an  unconditional  gift  under
this  paragraph  a,  the  sender  continues  to  send bill statements or
requests for payment with respect thereto, an action may be  brought  by
the  recipient to enjoin such conduct, in which action there may also be
awarded reasonable attorneys' fees and costs to the prevailing party.
b. If a person is a member of an organization which makes retail sales
of any goods, wares, or merchandise  to  its  members,  and  the  person
notifies  the organization of his termination of membership by certified
mail,  return  receipt  requested,  any  unordered  goods,   wares,   or
merchandise  which  are  sent  to the person after thirty days following
execution of  the  return  receipt  for  the  certified  letter  by  the
organization,  shall  for  all purposes be deemed unconditional gifts to
the person, who may use or dispose of the goods, wares,  or  merchandise
in  any  manner  he  sees  fit without any obligation on his part to the
organization.
If the termination of  a  person's  membership  in  such  organization
breaches   any   agreement   with  the  organization,  nothing  in  this
subdivision shall relieve the person from liability for damages to which
he might be otherwise subjected to pursuant to law.
The provisions of this paragraph shall not apply to  a  member  of  an
organization the sole purpose of which is the sale of a specific type of
goods,  wares  or  merchandise  to  its  members  until  the  member has
fulfilled his initial purchase obligation.
3. a. Whenever  there  shall  be  a  violation  of  this  section,  an
application  may  be  made  by  the  attorney general in the name of the
people  of  the  state  of  New  York  to  a  court  or  justice  having
jurisdiction to issue an injunction, and upon notice to the defendant of
not  less than five days, to enjoin and restrain the continuance of such

violation; and if it shall appear to the satisfaction of  the  court  or
justice  that  the  defendant  is,  in  fact, violating this section, an
injunction may be  issued  by  such  court  or  justice,  enjoining  and
restraining  such  action or violation, without requiring proof that any
person has, in fact,  been  misled  or  deceived  or  otherwise  damaged
thereby.
b.  In  addition  to  the  authority  granted  to the attorney general
pursuant to paragraph a of this subdivision and the authority granted to
a recipient pursuant to paragraph a of subdivision two of this  section,
the  attorney  general,  or any person adversely affected by reason of a
violation of the provisions of subdivision  two  of  this  section,  may
bring  an  action  against  a  person  who  violates  the  provisions of
subdivision two of this section to recover the greater of:
(1) actual damages; or
(2) up to five hundred dollars for each instance in which goods, wares
or merchandise were sent in violation of the provisions  of  subdivision
two of this section.
c.  In  an  action under paragraph b of this subdivision the court may
award the costs of the action together with reasonable  attorney's  fees
to a prevailing plaintiff.
d.  Nothing  in this section shall in any way limit rights or remedies
which are otherwise available under law to the attorney general  or  any
other person authorized to bring an action under this section.