New York Miscellaneous Reports

PEOPLE v. LIPSITZ, 174 Misc.2d 571 (1997) 663 N.Y.S.2d 468
as Attorney-General of the State of New York, Petitioner, v.
KEVIN JAY LIPSITZ, Individually and Doing Business as
Respondent Supreme Court, New York County June 23, 1997
Page 572


Dennis C. Vacco, Attorney-General (Eric A. Wenger of
counsel), for petitioner.

Geoffrey Long for respondent.


In a case apparently of nationwide first impression, the
Attorney-General of this State seeks enforcement of consumer
fraud and false advertising laws, against a business
physically located within this jurisdiction, upon the
allegation that the business engaged in fraudulent and
deceptive consumer sales practices targeting the world-wide
Internet audience by methods involving the use, misuse and
abuse of e-mail.

The legal claims raised have relevance to the development
of “Internet law” because the applicable State statutes
parallel Federal and other State statutes, as detailed in
the legal discussion below.


The underlying sales scheme is simple. Respondent Kevin
Lipsitz, using various assumed business names, sells
magazine subscriptions from a location in Staten Island, New
York. He uses names such as Collegetown Magazine
Subscription Services, Krazy Kevin’s Magazine Club, Magazine
Club Inquiry Center and Tempting Tear-Outs.

The Attorney-General presents numerous affidavits and
complaints, by local residents and individuals from a number
of other States and countries, which describe a sorry tale
of purchasing magazine subscriptions from respondent’s
friendly and congenial staff, followed by one of the
following: (1) the magazine(s) never arrived; or (2) if any
magazine(s) started to arrive, always after an extremely
extended delay, the subscription was shortened, often by as
much as half the length of time for which the consumer paid,
with the only notice of the actual end date of the
subscription being the printing on the magazine’s mailing

Requests for refunds are portrayed as receiving the
following predictable sequence: (1) assurances that the
complaint would Page 574 be investigated; (2) increasingly
surly responses; (3) when the customer became indignant, the
customer was told he or she would not receive a refund if
the customer was unpleasant; (4) not returning calls or
hanging up; and (5) in some documented incidents, acts of
retaliation if complaints continued. When consumers
complained to the Better Business Bureau or the
Attorney-General’s Office, respondent advised the agencies
that the problem lay with the publisher and, even after that
contact, often still failed to remedy the deficiency.

The thrust of the submissions are that respondent was
simply pocketing the subscription money, although, from time
to time and on a random basis, he would cause some magazines
to be delivered, but never quite enough.

Although the respondent has been engaged in the sale of
magazine subscriptions since at least 1986, the deceptive
sales practices complained of within these papers began only
in the last several years, when advertising began to be
distributed by electronic mail, called “e-mail”, on the
Internet.[fn1] Respondent created messages from fictitious
satisfied consumers extolling the unbeatably low prices and
wonderful customer service provided by respondent. The
e-mail messages were chatty and friendly. They were sent to
people who were members of particular e-mail discussion
groups, which groups are called “listservs” or “lists”. The
supposed author was portrayed as a member of the group,
which might inspire confidence in the testimonial. The
author advised respondent did “virtually no advertising” and
“only likes to take new members from referrals from
satisfied existing customers.” The fictitious author asked
inquirers to mention her name so she would be credited with
referrals and concluded the letter with the remark “Once you
get in, you’ll love them.” The Attorney-General states it
has found no evidence of such any club and states that
“[r]epondent will take money from any consumer who sends

Every documented attempt to trace the author of the
electronic missives recited in these papers found that the
named sending source did not exist. In all instances in
which an initiating source could be identified, respondent
was found to have been the actual e-mail initiators. Methods
are available for sending “anonymous” e-mail, either
directly, or by Page 575 mass e-mailing by a “re-mailer”
(Religious Technology Ctr. v. Netcom On-Line Communication
Servs., 923 F. Supp. 1231, 1256, n 29 [ND Cal 1995], citing
Hardy, The Proper Legal Regime for “Cyberspace”, 55 U Pitt
L Rev 993 [1994]).

Although many aspects of the conduct of this advertising
campaign are not critical to the Attorney-General’s claim,
the campaign is ominously portrayed within the papers as
more equivalent to war. Each member of a group — and
groups number a hundred persons and up — would
receive a several-page testimonial and order form, including
reference to obtaining a “juicy” magazine catalogue. This
practice of group distribution is called “spamming” and the
practice of using a fictitious source is called “spoofing”.
The mere receipt of these lengthy e-mails was objectionable,
for a recipient may be paying for units of Internet access
time while reviewing messages and bulk e-mail is a burden on
the finite capacity of receiving computers (see, Cyber
Promotions v. American Online, 948 F. Supp. 436, 464 [ED Pa
1996] [limits placed upon advertiser sending unwanted bulk

Several instances are presented in which the membership
list was confidential and could have been obtained only by
deliberate, unauthorized entry. An elaboration of the nature
of such groups appears in Shea v. Reno (930 F. Supp. 916,
927-928 [SD N Y 1996]), which describes other features of
the Internet, and more specifically addresses restrictions
upon access to sexually explicit material.

As to retaliation, when the member of one university group
complained to respondent, each member received numerous
copies of the communication, such that the receiving
computer’s capacity to receive electronic mail was filled
and members could no longer receive legitimate educational
communications. One group was subjected to this treatment so
extensively and repeatedly that the group was terminated as
the only effective method of allowing members to escape the
unwanted attention.

The respondent’s unsolicited attentions and the antics
described above became well known in the Internet community.

Reportedly, respondent was repeatedly ejected from
reputable Internet access providers, such as America OnLine,
none of which desired to provide a “host” Internet source
for a business which was the subject of complaints. A
withdrawal of access privileges is a common institutional
response to repellent Internet communicators (see, United
States v. Baker, 890 F. Supp. 1375, Page 576 1391, n 25 [ED
Mich 1995] [treating e-mail speech in the same manner as
any other form of communication]).

Respondent now operates through an independent Internet
“host” source. Fifty disgruntled consumers found their way
to the New York State Attorney-General, the Better Business
Bureau of Metropolitan New York, Inc., the National Fraud
Information Center, and the Telemarketing Fraud Database.
The Telemarketing Fraud Database is jointly maintained by
the United States Federal Trade Commission and the National
Association of Attorneys General. Thereafter, the
complaints were collected and the New York State
Attorney-General then commenced this action.


The Attorney-General requests a variety of relief under New
York State’s General Business Law §§ 349 and
350. These sections are based on section 5 of the Federal
Trade Commission Act (38 US Stat 717, 15 U.S.C. §
45), and, unlike some mail fraud statutes, provide a remedy
for fraud targeting consumers (compare, 18 U.S.C. §
1341, and Penal Law § 190.60; see generally, Givens,
Practice Commentaries, McKinney’s Cons Laws of NY, General
Business Law § 349, at 565). New York’s consumer
protection laws are similar to consumer fraud, deceptive
sales practices and consumer protection laws of other

The Attorney-General asks that respondent be enjoined from
engaging in the alleged fraudulent, deceptive and illegal
practices described in the papers, from doing business
within this State absent posting a bond to guarantee
payments to consumers, and from destroying business
records. Additionally, it is requested that respondent
provide a detailed accounting of past transactions, and that
the court issue a determination regarding restitution to
consumers, impose a civil fine, and Page 577 enter a money
judgment against respondent in favor of the

This special proceeding is commenced pursuant to Executive
Law § 63 (12), which authorizes a special proceeding
against a person or business committing repeated or
persistent fraudulent or illegal acts.[fn3] The
Attorney-General also claims respondent has engaged in
deceptive acts and practices violative of General Business
Law § 349, false advertising violative of General
Business Law § 350, and the use of unregistered
assumed business names violative of General Business Law
§ 130 (1) (a).

As to the procedural standards to be applied here, this
matter is a special proceeding, commenced by a verified
petition. The issues raised in the petition are to be
summarily determined on the papers “to the extent that no
triable issues of fact are raised” (CPLR 409 [b]). The
petition is treated in a similar fashion as a motion for
summary judgment (compare, special proceeding under CPLR
article 78; Matter of Piela v. Van Voris, 229 A.D.2d 94 [3d
Dept 1997]).


The acts alleged to constitute consumer fraud occurred on
the Internet. Respondent urges that the Attorney-General and
this court have no jurisdiction over his Internet activity,
a position which this court rejects, and presents other
arguments which seek to limit the individual complaints to
be considered by the court.

The Internet has been well described in several Federal
court decisions. “The Internet is not a physical or tangible
entity, but rather a giant network which interconnects
innumerable smaller groups of linked computer networks. It
is thus a network of networks” (American Civ. Liberties
Union v. Reno, 929 F. Supp. 824, 830 [ED Pa 1996], probable
jurisdiction noted ___ US ___, 117 S Ct 554, 136 L Ed 2d
436). As of 1996, it was estimated that more than 9.4
million computers were so linked, with 40 million people
accessing the system, and it was anticipated that there
would be 200 million Internet users by 1999 (supra, at 831).
Internet “communications can occur almost instantaneously,
and can be directed either to specific individuals, to a
broader group of people interested in a particular subject,
or to the world as a whole” (supra). “Individuals Page 578
can also access the Internet through commercial and
noncommercial `Internet service providers’ that typically
offer modem telephone access to a computer or computer
network linked to the Internet” (supra, at 833).

E-mail is “comparable in principle to sending a first class
letter” (supra, at 834). Both the sender and the recipient
have “an address (rather like a telephone number)” (supra,
at 836). Such an e-mail address represents an individual
user’s chosen identifying name at a particular computer
system, for example, “mailbox-name,” with the “host
computer providing Internet services (`site’) [having] a
unique Internet address * * * which is an alphanumeric
`domain name’ * * * [registered with] the Internet Network
Information Center (`Internic’), a collaborative project
established by the National Science Foundation” (MTV
Networks v. Curry, 867 F. Supp. 202, 203-204, n 2 [SD N Y

As can be readily envisioned, civil Internet litigation
defendants often raise jurisdictional objections and
respondent is no exception. Indeed, although Internet
transactions might appear to pose novel jurisdictional
issues, traditional jurisdictional standards have proved to
be sufficient to resolve all civil Internet jurisdictional
issues raised to date, refuting the view of “[s]ome
commentators * * * [who] believe a new body of jurisprudence
is needed to address” questions of personal jurisdiction and
the Internet (Zembek, Jurisdiction and the Internet:
Fundamental Fairness in the Networked World of Cyberspace,
6 Alb LJ Sci & Tech 339, 346 [1996]).

The first jurisdictional consideration is whether the
litigation target has established a physical presence or a
sufficiently close equivalent in the jurisdiction. Such a
physical presence is not established, for example, by merely
maintaining an Internet site accessible by an individual in
a given jurisdiction. As recognized by Magistrate Peck in
Hearst Corp. v. Goldberger (1997 WL 97097, 1 [SD NY, Feb.
26, 1997]), “a finding of personal jurisdiction in New York
based on an Internet web site would mean that there would be
nationwide (indeed, worldwide) personal jurisdiction over
anyone and everyone who establishes an Internet web site.
Such nationwide jurisdiction is not consistent with
traditional personal jurisdiction case law nor acceptable to
the Court as a matter of policy” (see also, in accord,
Bensusan Rest. Corp. v. King, 937 F. Supp. 295 [SD N Y 1996,
Stein, J.]). However, where a person or business conducts a
business within the forum State by being a subscriber to a
local Internet service provider and selling a product Page
579 through that provider, jurisdiction is proper
(CompuServe, Inc. v. Patterson, 89 F.3d 1257 [6th Cir 1996];
see also, as to varying tests for tort and intellectual
property claims, EDIAS Software Intl. v. Basis Intl., 947 F.
Supp. 413 [D Ariz. 1996]; California Software v. Reliability
Research, 631 F. Supp. 1356 [D Cal 1986]; Playboy Enters. v.
Chuckleberry Publ., 939 F. Supp. 1032 [SD N Y 1996]). Here,
respondent is physically located within the jurisdiction.

The second jurisdictional consideration is of the acts done
by the litigation target within the jurisdiction, which must
provide sufficient “minimum contacts” with the forum to meet
the constitutional jurisdictional test enunciated in
International Shoe Co. v. Washington (326 U.S. 310, 316
[1945]). Traditionally, advertising alone is not sufficient
presence within a forum to support jurisdiction (see, as a
typical example from a legion of cases so holding, Fidelity
& Cas. Co. v. Philadelphia Resins Corp., 766 F.2d 440, 447
[10th Cir 1985], cert denied 474 U.S. 1082 [1986]). The
mailing of a letter or making a telephone call to a forum
resident, if that act is done outside a jurisdiction, does
not alone support jurisdiction in a forum (see, e.g., Bross
Utils. Serv. Corp. v. Aboubshait, 489 F. Supp. 1366,
1371-1372 [D Conn, Cabranes, J.] [“The transmission of
communications between an out-of-state defendant and a
plaintiff within the jurisdiction does not, by itself,
constitute the transaction of business in the forum state”],
affd 646 F.2d 559 [2d Cir 1980]; Reynolds v. International
Amateur Athletic Fedn., 23 F.3d 1110, 1119 [6th Cir], cert
denied 513 U.S. 962 [1994]; Nicholas v. Buchanan, 806 F.2d
305, 307-308 [1st Cir 1986], cert denied 481 U.S. 1071
[1987]; see also, Cendali and Arbogast, Net Use Raises
Issues of Jurisdiction, Natl LJ, Oct. 28, 1996, at C7, C9).
Here, again, these actions were done within this

In summary, for Internet consumer fraud claims, the
Internet medium is essentially irrelevant, for the focus is
primarily upon the location of the messenger and whether the
messenger delivered what was purchased. In some cases, it
might be necessary to analyze the location of certain other
business operations, such as the site used or the place
orders were received. Such refinements are unnecessary here
for the entire enterprise was firmly based in New York

Accordingly, a jurisdictional challenge is rejected as
specious because respondent does business in New York State
and the acts complained of physically occurred in New York,
even though the impact may have been in another location.
New York courts have clear jurisdiction over persons
actually present Page 580 in New York and over
organizations and corporations doing business in New York
“`with a fair measure of permanence and continuity'”
(McLaughlin, Practice Commentaries, McKinney’s Cons Laws of
NY, Book 7B, CPLR C301:2, at 7-9).

Further, there is no reason to exclude consideration of
out-of-State complaints, as respondent requests. The
Attorney-General has clear authority to seek to restrain
illegal business practice by a local business in relation to
both in-State and out-of-State residents, notwithstanding
that these practices occur on the Internet. The statute
imposes no geographical restrictions upon the consumer
complaints which properly serve as a basis for an
enforcement action by the Attorney-General. As one court
has already specifically noted, “the plain meaning of the
language * * * indicates that the Legislature intended that
all consumers be protected from illegal practices regardless
of their residency and that the Attorney-General of this
State is mandated to take necessary action * * * to protect
all of these consumers” (State of New York v. Camera
Warehouse, 130 Misc.2d 498, 499 [Sup Ct, Dutchess County
1985, Jiudice, J.]).

Accordingly, the court determines that it shall consider
complaints of both residents and nonresidents of this State,
a result which is hardly novel given a number of consumer
protection statutes have been interpreted as including
application to out-of-State customers (see, collecting
cases, Edelman, Applicability of Illinois Consumer Fraud Act
in Favor of Out-of-State Customers, 8 Loy Consumer L Rep 27
[1995-1996]). Accordingly, all complaints, including those
from the residents of Israel and the Virgin Islands, are
properly before the court.

Finally, the court holds that it shall consider both sworn
and unsworn complaints contained within the papers and
rejects respondent’s position that only sworn complaints
should be granted credence. First, the Attorney-General’s
mandate is sufficiently broad that the Attorney-General
could commence enforcement actions even if no complaints
were to exist (see, State of New York v. Management
Transition Resources, 115 Misc.2d 489 [Sup Ct, N Y County
1982]). Second, there is specific precedent for the
presentation of unsworn complaints (State of New York v.
Michael Oldsmobile Corp., Sup. Ct., N Y County, July 2,
1990, index No. 43145/90), although this court views it
unlikely that restitution could be granted thereon.

A final inquiry, albeit not one raised by the parties, is
whether concepts limiting or invalidating State laws which
impermissibly burden interstate commerce should impede the
Page 581 claims raised here. The principles and precedents
were recently explored in depth in American Lib. Assn. v.
Pataki (969 F. Supp. 160 [1997, Preska, J.]), which
concluded that New York Penal Law § 235.21 (3),
directed at computer communication system transmission of
obscene material, was an unconstitutional violation of the
Commerce Clause of the United States Constitution and
stated the view that “the Internet is one of those areas of
commerce that must be marked off as a national preserve to
protect users from inconsistent legislation that, taken to
its most extreme, could paralyze development of the Internet
altogether” (at 169).

Here at issue are consumer protection laws applicable to
the conduct of a local business, which were not designed nor
aimed at regulating conduct outside this State’s borders
(compare, Baldwin v. G.A.F. Seelig, 294 U.S. 511 [1935]
[improper attempt to regulate milk prices outside State
borders], and Edgar v. MITE Corp., 457 U.S. 624 [1982]
[regulation of intrastate corporations unquestioned but
regulation of interstate out-of-State corporations
invalid]), not even indirectly (Pike v. Bruce Church, 397
U.S. 137, 142 [1970]). These local consumer fraud laws touch
upon no known Federal policy which requires uniformity
(Southern Pac. Co. v. Arizona, 325 U.S. 761 [1945] [varied
State specifications regarding train length invalid]).
Finally, these consumer protection statutes are not an
attempt to regulate speech on the Internet or create an
Internet regulatory scheme (see, for descriptions of such
efforts, American Lib. Assn. v. Pataki, supra, at 167-168,

To place a realistic context on these matters and leave
behind the rarified air of cyberspace, the issues raised
here would be the same if each involved a consumer
individually sued in the Staten Island Small Claims Part.
Each defrauded customer’s complaint would state, “I was
robbed of my subscription money”, “failure to deliver as
promised,” or “breach of contract.”

The claims are of local concern, as recognized by the
nationwide system of State consumer protection laws. There
is no compelling reason to find that local legal officials
must take a “hands off” approach just because a crook or a
con artist is technologically sophisticated enough to sell
on the Internet. Invocation of “the Internet” is not the
equivalent to a cry of “sanctuary” upon a criminal’s entry
into a medieval church. It should be sufficient that the
laws sought to be applied, even if they might tangentially
implicate interstate commerce, are “media neutral” and
otherwise pass constitutional muster. The Page 582 laws
advanced here meet that test, although not every foreseeable
statute has or will.

Based upon the foregoing, the court finds that it has
jurisdiction over the entire matter and all complaints

Statutory Violations

As to the actual practices in which respondent engages, the
Attorney-General has established that respondent
consistently fails to deliver magazines as promised and
consistently fails to honor his money back guarantees. The
respondent has advanced no evidentiary material to refute
the Attorney-General’s assertion as to the nature of
respondent’s business practices or, more accurately,
business malpractices. Although respondent’s counsel urges
that consumers were not “deceived” because they knew they
were purchasing magazines, any impartial recipient of the
advertising should have been entitled to expect to receive
exactly the subscription paid for, with reasonably timely
and complete delivery, accompanied by the promised wonderful
customer service.

The conduct established by the record proves violations of
the New York State consumer fraud statutes. A business
practice of failing to deliver as promised is recognized as
fraudulent and illegal conduct violating General Business
Law § 349 (People v. Apple Health & Sports Clubs, 206
A.D.2d 266 [1st Dept 1994], lv dismissed and lv denied 84
N.Y.2d 1004 [1994] [no health club services]; People v.
Empyre Inground Pool, 227 A.D.2d 731 [3d Dept 1996] [no
pools]; People v. Helena VIP Personal Introductions Servs.,
NYLJ, Jan. 17, 1992, at 26, col. 3 [Sup Ct, N Y County],
affd 199 A.D.2d 186 [1st Dept 1993] [no dates]; State of New
York v. Management Transition Resources, supra [no
management services]). Here, the Attorney-General has
established that the respondent’s business practice is
generally “no magazines, no service, no refunds,” although
exactly the contrary is promised, making the sales promises
a deceptive and fraudulent practice clearly falling within
the consumer fraud statutes.

Additionally, by falsely advertising attentive customer
services and disseminating fictitious testimonials,
respondent violates General Business Law § 350.
Although some of the specific advertising gimmicks —
such as the disguised source of e-mail messages to group
members and the references to a “club” to which not all
would be admitted — were particularly designed to
inspire confidence, the mere falsity of the advertising
content is sufficient as a basis for the false advertising
Page 583 charge. It would not matter if only the
unsophisticated, overly credulous or ignorant consumer would
believe the claims and be misled (People v. Volkswagen of
Am., 47 A.D.2d 868 [1st Dept 1975]; Matter of Lefkowitz v.
E.F.G. Baby Prods., 40 A.D.2d 364, 368 [3d Dept 1973]).

Finally, by operating under assumed business names without
the requisite governmental filing, the individual respondent
violates General Business Law § 130 (1) (a), which
mandates a filing of an assumed business name certificate
with the office of the clerk of the county “in which such
business is conducted or transacted [setting forth] the full
name or names of the person or persons conducting or
transacting the same * * * with the residence of each such
person”. The individual respondent has not filed such
certificates for either “Krazy Kevin’s Magazine Club” or
“Magazine Club Inquiry Center.”

Based upon the foregoing, the Attorney-General has
established respondent’s violations of the above laws. In so
doing, the Attorney-General has also demonstrated that a
consumer fraud action by a State’s Attorney-General against
a local offending business is an excellent weapon in the
soon-to-be-expected war on Internet fraud. Indeed, Internet
users can report consumer fraud to Federal officials and
State Attorneys-General on the Internet itself, but, as
illustrated here, it is a wise precaution to secure an
address for any entity with which one does business.


The Attorney-General seeks several different forms of

Injunctive relief is sought pursuant to specific
authorizations for such relief under Executive Law §
63 (12) and General Business Law § 349. The
requirement of a bond to assure future proper business
behavior on the part of an enjoined business traditionally
accompanies such an injunction (see, People v. Empyre
Inground Pool, 227 A.D.2d 731 [3d Dept 1996], supra; People
v. Helena VIP Personal Introductions Servs., 199 A.D.2d 186,
supra). The court finds the request for an injunction
warranted. The court is unaware of any unspecified but
claimed “obvious constitutional reasons” why a bond should
not be ordered.

The court will defer the amount of the bond for fixing in
the order to be settled hereon. Such bond amount will be
subject to adjustment after the completion of the accounting
and restitution hearing provided for below, when the court
will have further facts before it. Respondent may submit
documentary evidence regarding the financial status of
respondent in support Page 584 of any order to be settled
and propose an amount for the bond therein. It is noted that
the Attorney-General has requested a bond of $100,000.

An order of restitution is authorized by Executive Law
§ 63 (12) and General Business Law § 349,
where, as here, violations of the substantive underlying
provisions are found. The fact that respondent has offered
to make restitution, but, consistent with the past, has yet
failed to do so does not defeat the request for an order of
restitution. If respondent provides restitution to any
individual prior to an accounting, he will not be ordered to
undertake restitution a second time. The mechanism for
restitution shall be established in an order to be settled
following the accounting ordered herein (see, mechanism for
restitution to be provided in order to be settled, People v.
Helena VIP Personal Introductions Servs., 199 A.D.2d 186,

The manner of the accounting shall be resolved at the
initial preliminary conference to be held in this matter, as
will any issues regarding the scope of the accounting,
discovery and whether the matter shall be referred to a
Special Referee. Respondent is directed not to destroy any
business records, which he states he will not do.

The fixing of penalties shall also be deferred until the
accounting. Pursuant to General Business Law § 350-d,
a penalty of $500 may be fixed for each violation of
sections 349 Gen. Bus. and 350 Gen. Bus. of the General
Business Law and specifically for each improper
advertisement and each improper consumer transaction (People
v. Allied Mktg. Group, 220 A.D.2d 370 [1st Dept 1995];
People v. Helena VIP Personal Introductions Servs., 199
A.D.2d 186, supra).

Consistent with Executive Law § 63 (12) and CPLR
8303 (a)(6), the Attorney-General is awarded costs of $2,000
against respondent Lipsitz, who is individually liable for
the actions conducted under both the registered and
unregistered assumed business names.

[fn1] The term “e-mail” commonly is used as a noun, verb,
and adjective. “E-mail” will be so used within the balance
of this decision.

A description of the Internet, which has also been called
“cyberspace”, and e-mail appear in the legal discussion
below. Because the Internet is comparable to a geographical
location, the term is capitalized here.

[fn2] See, Annotation, Scope and exemptions of state
deceptive trade practice and consumer protection acts, 89
ALR3d 399 (1978 and supp); Karns, State Regulation of
Deceptive Trade Practices under “Little FTC Acts”: Should
Federal Standards Control?, 94 Dick L Rev 373 (1990) (both
analyzing State statutes); see, Annotation, Right to
private action under state consumer protection act, 62
ALR3d 169 (1975 and supp) (as to statutes permitting a
private right of action); see, Clinton, Do Businesses Have
Standing to Sue under State Consumer Fraud Statutes?, 20 S
Ill U LJ 385 (1996) (for business claims); see, Miller,
Consumer Issues and the Revision of U.C.C. Article 2, 35 Wm
& Mary L Rev 1565 (1994) (for status of relevant uniform
and model laws); see, Moldovan, New York Creates a Private
Right of Action to Combat Consumer Fraud: Caveat Venditor,
48 Brook L Rev 509 (1982) (as to background of the New York

[fn3] “Fraud” is defined as “any device, scheme or artifice
to defraud and any deception, misrepresentation,
concealment, suppression, false pretense, false promise or
unconscionable contractual provisions” (Executive Law
§ 63 [12]). Page 585