§2.6 2. Remedies Available To Private Plaintiffs

• Jurisdiction: New York

2. Remedies Available to Private Plaintiffs

Individuals may also bring an action to recover for injuries resulting from the alleged deception. In such actions, a private plaintiff may recover no more than the plaintiff’s actual damages or $50, whichever is greater.²⁰⁸ Private plaintiffs must demonstrate actual injury in order to recover damages.²⁰⁹

Private plaintiffs bringing a § 349 action may not recover punitive damages unless the total damages award, including punitive damages, does not exceed $1,000.²¹⁰ Treble damages may be awarded if the plaintiff can successfully show that the defendant “willfully or knowingly” committed a deceptive act; treble damages may not exceed a total of $1,000, but attorney fees are also available, subject to the court’s discretion.²¹¹ It is important to note that evidence pertaining to “willful or knowing” deception is not required for the basic § 349 claim; it is required only when the plaintiff seeks treble damages.

Private plaintiffs may seek injunctive relief, recover actual damages, or $500, whichever is greater, for violations of § 350.²¹² In the event that a court finds the defendant “willfully or knowingly” violated § 350, then the court can award treble damages up to $10,000.²¹³ A private plaintiff may also recover reasonable attorney fees.²¹⁴

--------

Notes:

^[208] . See Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, 85 N.Y.2d 20, 24, 623 N.Y.S.2d 529 (1995).

^[209] . See McDonald v. N. Shore Yacht Sales, Inc., 134 Misc. 2d 910, 513 N.Y.S.2d 590 (Sup. Ct., Nassau Co. 1987) (to establish cause of action for false advertising under §§ 350 and 350-a, plaintiffs are only required to demonstrate the advertisement was misleading in a material respect and that plaintiffs were injured as a result); Pfizer, Inc. v. Sachs, 652 F. Supp. 2d 512 (S.D.N.Y. 2009) (finding no liability under §§ 349, 350, and 350-a where there was no evidence of actual damages). But see State v. Terry Buick, Inc., 520 N.Y.S.2d 497 (1987) (plaintiff not required to show actual injury, only that advertisement had misleading effect, where retail car dealer liable under § 350 where dealer displayed advertisements stating “No Money Down” and “$99/Mo” knowing customers were not permitted to buy cars on those terms).

^[210] . See Hart v. Moore, 155 Misc. 2d 203, 587 N.Y.S.2d 477 (Sup. Ct., Westchester Co. 1992) (punitive damages may be awarded only where total award, including punitive damages, does not exceed $1,000).

^[211] . GBL § 349(h).

^[...