§ 396 — Unlawful selling practices

§ 396. Unlawful selling practices. 1. No person, firm, partnership,\nassociation or corporation, or agent or employee thereof, shall, in any\nmanner, or by any means of advertisement, or other means of\ncommunication, offer for sale any merchandise, commodity, or service, as\npart of a plan or scheme with the intent, design, or purpose not to sell\nthe merchandise, commodity, or service so advertised at the price stated\ntherein, or with the intent, design or purpose not to sell the\nmerchandise, commodity, or service so advertised. Nothing in this\nsection shall apply to any television or sound radio broadcasting\nstation or to any publisher or printer of a newspaper, magazine, or\nother form of printed advertising, who broadcasts, publishes, or prints\nsuch advertisement.\n 2. a. No person, firm, partnership, association or corporation, or\nagent or employee thereof, shall, in any manner, or by any means, offer\nfor sale goods, wares or merchandise, where the offer includes the\nvoluntary and unsolicited sending of goods, wares or merchandise not\nactually ordered or requested by the recipient, either orally or in\nwriting; any such goods, wares or merchandise so sent shall be\nprominently marked upon the container thereof in bold letters as\nfollows: "THIS IS A GIFT. PAYMENT NOT REQUIRED FOR THIS ITEM". The\nreceipt of any goods, wares or merchandise pursuant to an existing\nmembership or club arrangement in which the recipient receives such\ngoods, wares or merchandise at specified intervals or a plan where the\nrecipient agrees to receive such goods, wares or merchandise without\nfurther obligation shall not be construed as the receipt of unsolicited\ngoods, wares or merchandise for the purposes of this section. The\nreceipt of any such unsolicited goods, wares or merchandise shall for\nall purposes be deemed an unconditional gift to the recipient who may\nuse or dispose of the same in any manner he sees fit without any\nobligation on his part to the sender.\n If after any such receipt deemed to be an unconditional gift under\nthis paragraph a, the sender continues to send bill statements or\nrequests for payment with respect thereto, an action may be brought by\nthe recipient to enjoin such conduct, in which action there may also be\nawarded reasonable attorneys' fees and costs to the prevailing party.\n b. If a person is a member of an organization which makes retail sales\nof any goods, wares, or merchandise to its members, and the person\nnotifies the organization of his termination of membership by certified\nmail, return receipt requested, any unordered goods, wares, or\nmerchandise which are sent to the person after thirty days following\nexecution of the return receipt for the certified letter by the\norganization, shall for all purposes be deemed unconditional gifts to\nthe person, who may use or dispose of the goods, wares, or merchandise\nin any manner he sees fit without any obligation on his part to the\norganization.\n If the termination of a person's membership in such organization\nbreaches any agreement with the organization, nothing in this\nsubdivision shall relieve the person from liability for damages to which\nhe might be otherwise subjected to pursuant to law.\n The provisions of this paragraph shall not apply to a member of an\norganization the sole purpose of which is the sale of a specific type of\ngoods, wares or merchandise to its members until the member has\nfulfilled his initial purchase obligation.\n 3. a. Whenever there shall be a violation of this section, an\napplication may be made by the attorney general in the name of the\npeople of the state of New York to a court or justice having\njurisdiction to issue an injunction, and upon notice to the defendant of\nnot less than five days, to enjoin and restrain the continuance of such\nviolation; and if it shall appear to the satisfaction of the court or\njustice that the defendant is, in fact, violating this section, an\ninjunction may be issued by such court or justice, enjoining and\nrestraining such action or violation, without requiring proof that any\nperson has, in fact, been misled or deceived or otherwise damaged\nthereby.\n b. In addition to the authority granted to the attorney general\npursuant to paragraph a of this subdivision and the authority granted to\na recipient pursuant to paragraph a of subdivision two of this section,\nthe attorney general, or any person adversely affected by reason of a\nviolation of the provisions of subdivision two of this section, may\nbring an action against a person who violates the provisions of\nsubdivision two of this section to recover the greater of:\n (1) actual damages; or\n (2) up to five hundred dollars for each instance in which goods, wares\nor merchandise were sent in violation of the provisions of subdivision\ntwo of this section.\n c. In an action under paragraph b of this subdivision the court may\naward the costs of the action together with reasonable attorney's fees\nto a prevailing plaintiff.\n d. Nothing in this section shall in any way limit rights or remedies\nwhich are otherwise available under law to the attorney general or any\nother person authorized to bring an action under this section.\n