XIV. Statutory

STATUTORY CAUSES OF ACTION IN NEW YORK

Types for Causes of Action:

  1. Construction or Mechanics Lien Law
  2. Consumer Fraud
  3. Dram-Shop Act
  4. Emergency Aid Not Given or Not properly Given (Good Samaritan Law)
  5. Fair Credit Reporting Act
  6. Martin Act Claims
  7. New York Arts and Cultural Affairs Law
  8. New York Antitrust Statute – Donnelly Act
  9. New York City Snow and Ice Claims
  10. New York Equal Access to Justice Act
  11. New York Franchise Law
  12. New York Labor Law § 240
  13. New York Labor Law § 241
  14. Physician Violating Patient Confidentiality
  15. Social Host Liability
  16. Son of Sam Law
  17. Theft of Personal Identifying Information/Identity Theft
  18. Trademark and Trade Dress Dilution
  19. Trademark and Trade Dress Infringement
  20. Voluntary Rescuer Injured by Negligence of Other (Rescue Doctrine)
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I. CONSTRUCTION OR MECHANICS LIEN LAW

Elements to prove:

  1. material-man;
  2. performs labor or furnishes materials;
  3. for the improvement of real property;
  4. with the consent or at the request of the owner, agent, contractor or subcontractor.

II. CONSUMER FRAUD

Elements to prove:

  1. the defendant;
  2. engaged in;
  3. a consumer-oriented;
  4. misleading practice; and
  5. that injured plaintiff.
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III. DRAM-SHOP ACT

Elements to prove:

  1. an injury;
  2. caused by an intoxicated person;
  3. a knowingly unlawful sale of alcohol;
  4. by the defendant to the intoxicated person; and
  5. the alcohol sold by the defendant caused or contributed to the person’s intoxication at the time the injury occurred.

IV. EMERGENCY AID NOT GIVEN OR NOT PROPERLY GIVEN (GOOD SAMARITAN LAW)

Elements to prove to get the benefits of good Good Samaritan statute:

  1. he or she is a medical professional;
  2. who voluntarily and without the expectation of monetary compensation;
  3. renders first aid or emergency treatment;
  4. at the scene of an accident or other emergency;
  5. outside a hospital, doctor’s office, or other medically related place; and
  6. to a person who is unconscious, ill, or injured.

V. FAIR CREDIT REPORTING ACT

Elements to prove:

  1. the plaintiff’s credit information;
  2. was released for a purpose other than;
    1. for meeting the needs of commerce for consumer credit;
    2. personal insurance; and
    3. other information in a manner;
  3. that is not maintained in a fair and equitable manner to the consumer regarding;
    1. confidentiality;
    2. accuracy;
    3. relevancy; and
    4. proper utilization of such information; and
  4. is done in a willful or negligent manner or obtained under false pretenses.
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VI. MARTIN ACT CLAIMS

A private litigant may not pursue a common law cause of action for a Martin Act claim, however an investor may bring a common law fraud claim if have factual overlap with facts.

VII. NEW YORK ARTS AND CULTURAL AFFAIRS LAW

Elements to prove:

  1. Notwithstanding any custom, practice or usage of the trade, any provision of the uniform commercial code or any other law, statute, requirement or rule, or any agreement, note, memorandum or writing to the contrary, whenever an artist or craftsperson, his heirs or personal representatives, delivers or causes to be delivered a work of fine art, craft or a print of his own creation to an art merchant for the purpose of exhibition and/or sale on a commission, fee or other basis of compensation;
  2. the delivery to and acceptance thereof by the art merchant establishes a consignor/consignee relationship as between such artist or craftsperson and such art merchant regarding the said work;
  3. such consignee shall thereafter be deemed to be the agent of such consignor relating to the said work

VIII. NEW YORK ANTITRUST STATUTE – DONNELLY ACT

Elements to prove:

  1. engaged in a contract, combination and conspiracy;
  2. in unreasonable restraint of;
  3. foreign and interstate trade commerce; and
  4. damages were a direct and foreseeable result of these violations.

IX. NEW YORK CITY SNOW AND ICE CLAIMS

Elements to prove:

  1. an owner of;
  2. real property abutting any sidewalk, among other things;
  3. must maintain such sidewalk, by, but not limited to, the removal of snow ice, dirt or other material from the sidewalk within four hours after a storm; and
  4. in a reasonably safe condition.

X. NEW YORK EQUAL ACCESS TO JUSTICE ACT

Elements to prove to recover attorney’s fee against a state:

  1. the position of the state or state agency was not substantially justified; or
  2. there are no special circumstances to make an award unjust.

XI. NEW YORK FRANCHISE LAW

Elements to prove:

  1. offered and sold a “franchise;”
  2. the offer or sale was made in New York and/or the agreement is governed by New York law;
  3. the agreement constituted a “franchise;”
  4. the offer was not provided with an “offering prospectus” registered with the New York Department of Law; and
  5. if applicable, the offer also contained untrue or misleading statements or omitted material facts.

XII. NEW YORK LABOR LAW § 240

Elements to prove:

  1. a contractor, owner, and their agents;
  2. in the erection, demolition, repairing, altering, painting, cleaning or pointing;
  3. of a building or structure;
  4. shall furnish, erect or cause to be furnished and erected;
  5. to perform such labor, scaffolding, hoists, stays, ladders, swings, hangars, blocks, pulleys, braces, irons, ropes, and other devices;
  6. shall be so constructed, placed, and operated to provide proper protection to the employed person; and
  7. the failure to do so resulting in damage to the plaintiff.

XIII. NEW YORK LABOR LAW § 241

Elements to prove:

  1. a contractor, owner, and their agents;
  2. in the construction, demolition, or excavation;
  3. of all areas;
  4. shall construct, shore, equip, guard, arrange, operate and conduct to provide reasonable and adequate protection and safety to the employed persons or lawfully frequenting such persons; and
  5. the failure to do so resulted in damage to the plaintiff.

XIV. PHYSICIAN VIOLATING PATIENT CONFIDENTIALITY

Elements to prove:

  1. a plaintiff’s medical records and/or information;
  2. were disclosed to third party by a health care provider;
  3. who had a duty of trust and confidence to plaintiff; and
  4. where there was no waiver by the plaintiff or legal justification.

XV. SOCIAL HOST LIABILITY

Elements to prove is not been adopted in New York for providing intoxicating beverages.

XVI. SON OF SAM LAW

Elements to prove with written notice to the Crime Victims Board:

  1. any person, legal entity, or representative that;
  2. knowingly contracts for, pays, or agrees to pay;
    1. any profits from a crime to a person or his or her representative charged with or convicted of that crime; or
    2. any funds of a convicted person;
  3. where such conviction is for a specified crime; and
  4. the aggregate value exceeds or will exceed $10,000.

XVII. THEFT OF PERSONAL IDENTIFYING INFORMATION/IDENTITY THEFT

Elements to prove:

  1. no defendant;
  2. shall knowingly and with the intent to defraud;
    1. obtain;
    2. possess;
    3. transfer;
    4. use or attempt to obtain;
    5. possess transfer; or
    6. use credit, goods, services or anything else of value; and
  3. in the name of another person without his or her consent.

XVIII. TRADEMARK AND TRADE DRESS DILUTION

Elements to prove:

  1. the likelihood of injury and confusion;
  2. to business reputation or of dilution of the distinctive quality of a mark or trade name;
  3. registered or not registered or in cases of unfair competition.

XIX. TRADEMARK AND TRADE DRESS INFRINGEMENT

Elements to prove for liability:

  1. it has a valid mark;
  2. entitled to protection under the Act;
  3. the defendant used the mark;
  4. in commerce;
  5. in connection with the sale or advertising of goods or services;
  6. likely to cause confusion; and
  7. without the plaintiff’s consent.

XX. VOLUNTARY RESCUER INJURED BY NEGLIGENCE OF OTHER (RESCUE DOCTRINE)

Elements to prove to recover from injuries during rescue:

  1. the defendant;
  2. whose negligence created the emergency or need for the rescue;
  3. for any injuries incurred in effectuating the rescue; and
  4. provided the acts of the rescuer were not rash, wanton or reckless, and were reasonable in view of the emergency situation confronted.

the above is an abstract from the Encyclopedia of New York Causes of Action by Ernest Edward Badway, 2018 edition.

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