396-R - Price gouging.

§  396-r.  Price gouging. 1. Legislative findings and declaration. The  legislature hereby finds that during periods of abnormal  disruption  of  the  market caused by strikes, power failures, severe shortages or other  extraordinary adverse circumstances, some parties within  the  chain  of  distribution  of consumer goods have taken unfair advantage of consumers  by charging grossly excessive prices for essential  consumer  goods  and  services.    In  order to prevent any party within the chain of distribution of any  consumer goods from taking unfair advantage of consumers during abnormal  disruptions of the market, the  legislature  declares  that  the  public  interest  requires  that  such conduct be prohibited and made subject to  civil penalties.    2. During any abnormal disruption of the market for consumer goods and  services vital and necessary for  the  health,  safety  and  welfare  of  consumers,  no  party  within the chain of distribution of such consumer  goods or services or both shall sell or offer to sell any such goods  or  services  or  both  for  an  amount  which  represents an unconscionably  excessive price. For purposes of  this  section,  the  phrase  "abnormal  disruption  of  the market" shall mean any change in the market, whether  actual or imminently  threatened,  resulting  from  stress  of  weather,  convulsion  of  nature,  failure  or shortage of electric power or other  source of energy, strike, civil disorder, war, military action, national  or local emergency, or other cause of  an  abnormal  disruption  of  the  market  which  results in the declaration of a state of emergency by the  governor. For the purposes of this section, the term consumer goods  and  services  shall  mean  those  used,  bought  or  rendered  primarily for  personal, family or household purposes. This prohibition shall apply  to  all   parties   within   the   chain   of  distribution,  including  any  manufacturer, supplier, wholesaler,  distributor  or  retail  seller  of  consumer goods or services or both sold by one party to another when the  product  sold was located in the state prior to the sale. Consumer goods  and services shall also include any repairs made by any party within the  chain of distribution of consumer goods  on  an  emergency  basis  as  a  result of such abnormal disruption of the market.    3.  Whether  a  price is unconscionably excessive is a question of law  for the court.    (a) The court's determination that a violation  of  this  section  has  occurred  shall  be  based on any of the following factors: (i) that the  amount of the excess in price is unconscionably extreme;  or  (ii)  that  there  was  an  exercise  of unfair leverage or unconscionable means; or  (iii) a combination of both factors in subparagraphs  (i)  and  (ii)  of  this paragraph.    (b)  In  any proceeding commenced pursuant to subdivision four of this  section, prima facie proof that a violation of this section has occurred  shall include evidence that    (i) the amount charged represents a gross disparity between the  price  of  the  goods or services which were the subject of the transaction and  their value measured by the  price  at  which  such  consumer  goods  or  services  were  sold  or  offered for sale by the defendant in the usual  course of business immediately  prior  to  the  onset  of  the  abnormal  disruption of the market or    (ii)  the  amount charged grossly exceeded the price at which the same  or similar goods or services were readily obtainable by other  consumers  in  the  trade  area.  A  defendant  may  rebut  a prima facie case with  evidence that additional costs not within the control of  the  defendant  were imposed on the defendant for the goods or services.    4.  Where a violation of this section is alleged to have occurred, the  attorney general may apply in the name of the People of the State of NewYork to the supreme court of the State of New York within  the  judicial  district  in  which  such  violations  are  alleged to have occurred, on  notice of five days, for an order enjoining or restraining commission or  continuance  of  the  alleged unlawful acts. In any such proceeding, the  court  shall  impose  a  civil  penalty  in  an  amount  not  to  exceed  twenty-five  thousand  dollars and, where appropriate, order restitution  to aggrieved consumers.