§ 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.