§ 349-C — Additional civil penalty for consumer frauds against elderly persons

§ 349-c. Additional civil penalty for consumer frauds against elderly\npersons. 1. Definition. As used in this section elderly person means a\nperson who is sixty-five years of age or older.\n 2. Supplemental civil penalty. (a) In addition to any liability for\ndamages or a civil penalty imposed pursuant to sections three hundred\nforty-nine, three hundred fifty-c and three hundred fifty-d of this\nchapter, regarding deceptive practices and false advertising, and\nsubdivision twelve of section sixty-three of the executive law,\nregarding proceedings by the attorney general for equitable relief\nagainst fraudulent or illegal consumer fraud, a person or entity who\nengages in any conduct prohibited by said provisions of law, and whose\nconduct is perpetrated against one or more elderly persons, may be\nliable for an additional civil penalty not to exceed ten thousand\ndollars, if the factors in paragraph (b) of this subdivision are\npresent.\n (b) In determining whether to impose a supplemental civil penalty\npursuant to paragraph (a) of this subdivision, and the amount of any\nsuch penalty, the court shall consider, in addition to other appropriate\nfactors, the extent to which the following factors are present:\n (1) Whether the defendant knew that the defendant's conduct was\ndirected to one or more elderly persons or whether the defendant's\nconduct was in willful disregard of the rights of an elderly person;\n (2) Whether the defendant's conduct caused an elderly person or\npersons to suffer severe loss or encumbrance of a primary residence,\nprincipal employment or source of income, substantial loss of property\nset aside for retirement or for personal and family care and\nmaintenance, substantial loss of payments received under a pension or\nretirement plan or a government benefits program; or assets essential to\nthe health or welfare of the elderly person or whether one or more\nelderly persons were substantially more vulnerable to the defendant's\nconduct because of age, poor health, infirmity, impaired understanding,\nrestricted mobility, or disability, and actually suffered physical,\nemotional, or economic damage resulting from the defendant's conduct.\n 3. There is hereby established in the state treasury a special fund to\nbe known as the elderly victim fund, which shall consist of and into\nwhich shall be paid all moneys derived from supplemental civil penalties\nimposed pursuant to this section. The moneys in such fund shall be\nadministered by the department of law and shall be expended solely for\nthe investigation of and prosecution of consumer frauds against elderly\npersons. The moneys in the fund shall be paid out on the audit and\nwarrant of the comptroller on vouchers certified or approved by the\nattorney general. Notwithstanding any other provision of law to the\ncontrary, any balance in the said fund on March thirty-first of any\nfiscal year shall not revert to the general fund of the state.\n 4. Restitution to be given priority. Restitution ordered pursuant to\nthe provisions of law listed in subdivision two of this section shall be\ngiven priority over the imposition of civil penalties designated by the\ncourt under this section.\n