This is a proceeding pursuant to Executive Law § 63 (12), Arts and Cultural Affairs Law § 37.07, and General Business Law §§ 349, 350 for an order and judgment (i) permanently enjoining the respondents from violating Arts and Cultural Affairs Law § 37.07 by representing to the public that it can secure employment subject to purchasing a photography contract from them, (ii) permanently enjoining the respondents from violating Arts and Cultural Affairs Law § 37.07 by acting as an agent or manager and accepting fees for photography services, (iii) permanently enjoining the respondents from violating General Business Law §§ 349, 350 by misrepresenting to the public its selectivity and its ability to secure employment, (iv) permanently enjoining the respondents from engaging in the illegal, unfair, deceptive, and unlawful practices alleged in the petition, (v) directing the respondents to make full monetary restitution and pay damages to all aggrieved customers, known and unknown, who paid for photography contracts, (vi) directing the respondents to pay any and all small claims judgments entered against them in favor of customers who paid for photography contracts, (vii) directing the [*2]respondents to pay a civil penalty in the sum of $5,000.00 to the State of New York, pursuant to General Business Law § 350-d, for each deceptive act committed by the respondents in violation of General Business Law article 22-A, and (viii) directing the respondents to pay costs pursuant to CPLR 8303 (a) (6).

According to the petition, Jacqueline D'Alelio is the principal officer, shareholder, and owner of City Model and Talent Development, Inc. ("CMT"), a corporation engaged in the business of talent management with an office in Islandia, New York. The petitioner claims, in part, that the respondents engage in deceptive business practices which result in financial harm to members of the public. More specifically, the petitioner claims that representatives of CMT approach children and their parents at public venues, advising them that they have the "look" which would make them successful as models or actors, and that when they appear at CMT's office for their interviews, through a series of false statements and high pressure sales tactics, they are tricked into purchasing expensive photo shoots based on false promises of future work.

The petitioner alleges three causes of action for injunctive relief: the first, that the respondents engage in deceptive acts and practices in violation of General Business Law § 349 and, as a consequence, in repeated and persistent illegality in violation of Executive Law § 63 (12), the second, that the respondents repeatedly and persistently engage in false advertising in violation of General Business Law § 350 and, as a consequence, in repeated and persistent illegality in violation of Executive Law § 63 (12), and the third, that the respondents, while holding themselves out as having a connection with show business, represent that they can secure employment for potential models only if advance fees for photography, makeup artists, hairstylists, and wardrobe consultants are paid, and accept such fees, all in violation of Arts and Cultural Affairs Law § 37.07. The petitioner also seeks to compel the respondents to make restitution to aggrieved customers, as well as the imposition of a civil penalty and costs.

The respondents, by their answer, deny the material allegations set forth in the petition and assert three affirmative defenses: the first, that the petitioner's claims are barred by the applicable statute of limitations, the second, that the petitioner's claims are based for the most part on unsworn statements, and the third, that the respondents are entitled to a full evidentiary hearing given the sharply disputed facts contained in the parties' papers.

Sections 349 and 350 of the General Business Law provide that deceptive acts and practices and false advertising in the conduct of any business are unlawful. When a proceeding is brought to obtain injunctive relief and restitution on behalf of a consumer, the Attorney General is required to establish that the respondents engaged in an act or practice which was deceptive or misleading and that the consumer was injured as a result (Small v Lorillard Tobacco Co., 94 NY2d 43, 698 NYS2d 615 [1999]; Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 623 NYS2d 529 [1995]; Matter of People v Applied Card Sys., 27 AD3d 104, 805 NYS2d 175 [2005], lv dismissed 7 NY3d 741, 819 NYS2d 875 [2006]). While the proof must show the representations or omissions likely to mislead a reasonable consumer acting reasonably under the circumstances, the conduct need not rise to the [*3]level of fraud (Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 704 NYS2d 177 [1999] ["Gaidon I"]) and there is no requirement of proof of intent to defraud or justifiable reliance (Small v Lorillard Tobacco Co., supra ; Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, supra ).

Executive Law § 63 (12) likewise authorizes the Attorney General to institute a proceeding to enjoin the continuance of fraudulent or illegal activity in the conduct of a business and to obtain restitution and damages. The word "fraudulent," as used in the statute, is defined to include "any device, scheme or artifice to defraud and any deception, misrepresentation, concealment, suppression, false pretense, false promise or unconscionable contractual provisions." Under this section, "the test for fraud is whether the targeted act has the capacity or tendency to deceive, or creates an atmosphere conducive to fraud * * *. Executive Law § 63 (12) was meant to protect not only the average consumer, but also the ignorant, the unthinking and the credulous' " (People v General Elec. Co., 302 AD2d 314, 756 NYS2d 520, 523 [2003], quoting Guggenheimer v Ginzburg, 43 NY2d 268, 273, 401 NYS2d 182, 184 [1977]; accord Matter of People v Applied Card Sys., supra ).

Arts and Cultural Affairs Law § 37.07 makes it unlawful, in relevant part, for any business holding itself out to the public by any designation indicating a connection with show business to accept from a person any advance payment or compensation of any nature in return for services or otherwise, other than repayment for advances or expenses actually incurred for or on behalf of such person. Upon a violation of this section, the Attorney General may bring a proceeding to obtain injunctive relief, costs, and restitution, and a court may grant the injunction without proof that any person has been injured or damaged thereby.

Addressing first the claimed evidentiary defects in the petition, the Court notes that a special proceeding brought under CPLR article 4 is subject to the same standard of proof as a motion for summary judgment made in an action (Matter of Port of NY Auth. [62 Cortlandt St. Realty Co.], 18 NY2d 250, 273 NYS2d 337 [1966], cert denied sub nom. McInnes v Port of NY Auth., 385 US 1006, 87 S Ct 712 [1967]; Matter of People v Applied Card Sys., supra ; People v D.B.M. Intl. Photo Corp., 135 AD2d 353, 521 NYS2d 246 [1987]). To obtain summary judgment it is necessary that a party establish its cause of action or defense "sufficiently to warrant the court as a matter of law in directing judgment" in its favor (CPLR 3212 [b]), and that it do so "by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067, 416 NYS2d 790, 792 [1979]; accord, Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). Once the requisite proof is offered, the burden shifts to the party opposing summary judgment; to defeat the motion, it must, by producing evidentiary proof in admissible form, "show facts sufficient to require a trial of any issue of fact" (CPLR 3212 [b]; Joseph P. Day Realty Corp. v Aeroxon Prods., 148 AD2d 499, 538 NYS2d 843 [1989]).

Here, of the 64 consumer complaints annexed to the petition, only 18 are supported by an affidavit. The remaining unsworn complaints, therefore, shall not be considered. Contrary to the [*4]petitioner's claim, the fact that several of these complaints are prepared on forms which state, immediately above the signature line, that "any false statements made in this complaint are punishable as a Class A misdemeanor under Section 175.30 and/or Section 210.45 of the Penal Law" does not render them admissible (see Sam v Town of Rotterdam, 248 AD2d 850, 670 NYS2d 62, lv denied 92 NY2d 804, 677 NYS2d 779 [1998]; People v Dell, Inc., 21 Misc 3d 1110[A], 873 NYS2d 236 [2008]). The petitioner's attempt, on reply, to cure this defect by producing affidavits from several of the complainants whose complaints were previously unsworn is likewise insufficient, as a movant may not remedy basic deficiencies in its prima facie showing by submitting evidence in reply (e.g. Rengifo v City of New York, 7 AD3d 773, 776 NYS2d 865 [2004]).

As to those 18 complaints which are admissible, it appears that 14 are time-barred, as they involve transactions with CMT which concluded more than three years prior to the commencement of this proceeding. The Court rejects the petitioner's blanket claim that enforcement proceedings brought by the Attorney General under General Business Law §§ 349, 350, Executive Law § 63 (12), and Arts and Cultural Affairs Law § 37.07 are governed by the six-year residual statute of limitations set forth in CPLR 213 (1). While the six-year limitation period would apply if the conduct alleged were sufficient to constitute common-law fraud, here the petitioner does not plead the elements of fraud but only statutory violations which do not rise to the level of fraud and, as such, encompass "a far greater range of claims that were never legally cognizable before [their] enactment" (see Gaidon v Guardian Life Ins. Co. of Am., 96 NY2d 201, 209, 727 NYS2d 30, 34 [2001] ["Gaidon II"]; State of New York v Daicel Chem. Indus., 42 AD3d 301, 840 NYS2d 8 [2007]). CPLR 214 (2), which applies where liability "would not exist but for a statute" (Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 174, 501 NYS2d 313, 315 [1986]; accord Gaidon II, supra ), provides generally that "an action to recover upon a liability, penalty or forfeiture created or imposed by statute" must be commenced within three years of its accrual. Since it is not alleged that the respondents' conduct was wrongful independent of those statutes (cf. State of New York v Cortelle Corp., 38 NY2d 83, 378 NYS2d 654 [1975]), the Court finds that each of the claims is governed by CPLR 214 (2) (see State of New York v Daicel Chem. Indus., supra ; People v Pharmacia Corp., 27 Misc 3d 368, 895 NYS2d 682 [2010]; People v Dell, Inc., supra ).

Nevertheless, the Court finds the remaining evidentiary proof offered by the petitioner, including the consumer complaints and supporting affidavits prepared by Elaina Olynciw, Wassifa Bacchus, Staciemae Brown, and Shawnace Seegars, sufficient to satisfy its prima facie burden with respect to certain of the relief requested.

According to Elaina Olynciw, sometime prior to August 12, 2006, a representative of CMT approached her daughter Helene at a shopping mall and said that the agency would be interested in interviewing Helene for modeling jobs. CMT later phoned to set up the interview and told her to bring a recent photo of her daughter. Helene was very excited at the prospect of becoming a model. When they arrived at the interview on August 12, 2006, another CMT representative, Jack Mitchell, told them that the photo which they brought would not be good [*5]enough to show companies. He quickly went on to show them a catalog of prices to order a photo shoot to obtain the required composite card. He also offered a "deal" on the price—$900—which he said Helene would make back in her first modeling job. Because she did not want to ruin her daughter's chances, she agreed to pay for the photo shoot. He asked that she give him a credit card for the deposit. He then started to fill out a paper and asked her for her social security number, explaining that he needed it to write checks to her when her daughter got work. When he handed her the paper to sign, he explained that it was a contract for the photo shoot. She asked whether her daughter would be receiving the composite card she needed, and he indicated that she would. Since Jack Mitchell continued to talk as if he was explaining what was in the writing, she ended up signing the contract without reading it. When she finally read the contract on the train ride home, she was very uncomfortable with its terms, including that the deposit was not refundable even if the shoot was canceled, that CMT was not an employment agency and did not guarantee that it would try to find work for her daughter, that CMT retained the rights to the pictures and that she would have to pay extra for copies of the pictures and for the promised composite cards, and that she would also have to pay extra to have the pictures put on a website. Upon arriving home, she did some research and learned about scams involving agencies called "photo mills" which deceptively advertise themselves as modeling agencies but, in fact, receive most or all of their income from photo shoots. The following day, she sent a letter canceling the photo shoot. She has not received a refund of her $500 deposit.

Wassifa Bacchus states that she was also approached at a mall and asked by a CMT representative whether she would be interested in allowing her daughter to model. When she asked this person how much it cost, she was told that there would not be any fees. After scheduling an interview, she went to the office on January 27, 2007 and met with another CMT representative, who informed her that the way the business worked was through a website where photographs of the models are posted for agents to view and select, and that the only fee would be to obtain professional photographs. She then met with Jack Mitchell, who asked if she would be interested in modeling as well. He assured her that it was a great opportunity and asked her to sign a contract and give a deposit. On February 17, 2007, the date of the photo shoot, she told Jack Mitchell that she could not afford the fee for both herself and her daughter and that she would just purchase the photo shoot for her daughter. Despite assuring her that she could pay half the balance now and half later, he proceeded to charge her credit card the full $1200 balance, for a total of $1400. After the photos were ready, she was called to the office to view them and was told that there was another marketing fee. When she refused to pay the additional fee and asked for her money back, her request was denied.

Staciemae Brown claims that when she went to CMT's office on July 14, 2007 to view her photos, Jack Mitchell started talking about putting her pictures on the web, saying that he would provide this service for half price. She told him that she had no more money to invest in the project. Nevertheless, and without her permission, he proceeded to charge $500 on her debit card.

Shawnace Seegars states that when she and her daughter Jeanine visited CMT's office on [*6]September 28, 2007, Jack Mitchell told her that a $200 deposit was required for a photo shoot. She put the deposit on her credit card. She also signed a paper for the photo shoot which Jack Mitchell said was not a contract. After the photo shoot was rescheduled for October 13, 2007, she called the office on October 1 to cancel. It was at that point Jack Mitchell first informed her that there would be no refund. CMT has retained the deposit despite the fact that the photo shoot never took place.

In addition to the foregoing complaints and affidavits, the petitioner submits a copy of a CMT print advertisement in which the following statements appear [emphasis in original]:

[CMT] is an innovative, dynamic, professional organization that is committed to marketing and promoting models and talent to the Fashion and Entertainment Industry. We are in essence a Scouting Company and a Development Center designed to assist you with entry into this industry by developing, marketing, casting and managing potential models and actors.

In keeping with our goals, [CMT] develops unknown models and talent into sought after professions for Print, Catalogue, Character Acting, Broadcasting, Theater, Comics, Singers, Dancers, and more. Our clients are provided with the opportunity to obtain auditions and castings, maintain exposure and receive personal management benefits through our Casting Department.

We represent men, women, and children of all ages and appearances since the Fashion and Entertainment Industry demands total diversity.

[CMT] conducts evaluations and interviews with models and talent to determine their personality, poise, and potential for a career in the Fashion and Entertainment Industry.

CMT is recognized as a leading force in marketing and casting their clients for commercials, print work, music videos, movies and as promotional model/spokepeople.

The Court finds this evidence sufficient to establish, prima facie, that the respondents violated General Business Law § 349 by luring at least one potential customer to their office with promises of future employment as a model or actor and then, when the customer arrived at the office for an interview, convincing her, by subterfuge and otherwise, to sign a contract for expensive photography services; that they violated General Business Law § 350 by falsely holding CMT out as a modeling and talent agency; that they violated Executive Law § 63 (12) by all of the foregoing, as well as by charging the credit and debit cards of customers without their consent; and that they violated Arts and Cultural Affairs Law § 37.07 by accepting advance payments in return for services, having held themselves out to the public as enjoying a connection to show business. [*7]

The respondents, in opposition, failed to raise any triable issue of fact sufficient to warrant a hearing. Their claims regarding the terms and conditions of the photo shoot contract are insufficient to rebut the petitioner's showing of deceptive conduct and are largely irrelevant to the Court's analysis (see Gaidon I, supra ), as are their statements about CMT's general business practices and history of satisfied clients. Likewise insufficient are their claims that the petition is supported by the timely and admissible complaints of only four consumers, that the number of consumer complaints received by the Attorney General and the Better Business Bureau about CMT represents only a small percentage of its clientele, and that CMT has more than 50 clients to whom it did not sell photo shoots because those clients came to the agency with professional-quality photographs. Significantly and conspicuously absent from the respondents' showing is an affidavit from Jack Mitchell or other relevant proof to controvert the petitioner's claim that customers are coerced into signing contracts for expensive photo shoots without reading them, or that their credit and debit cards are charged without their consent. Although Jacqueline Krentzel (s/h/a Jacqueline D'Alelio) attaches to her affidavit what she describes as detailed responses to the individual complaints, the responses are unsworn, their author is unidentified, and no attempt has been made to introduce them as business records. Nor have the respondents demonstrated a factual question as to their violation of Arts and Cultural Affairs Law § 37.07. According to Jacqueline Krentzel, advance payment by members of the public are for CMT's expenses in arranging for their clients' photo shoots, composite cards, and internet marketing services. However, the record is devoid of proof that those expenses are prepaid by the respondents, much less that the full amount of the deposit is necessary to recoup those expenses.

Accordingly, the petition is granted to the extent of (i) permanently enjoining the respondents from recruiting members of the public as potential models and actors or conducting interviews with such persons without first disclosing the need for and costs associated with obtaining professional photographs and composite cards, as well as all marketing fees, (ii) permanently enjoining the respondents from charging the credit and debit cards of any member of the public without his or her prior written consent, (iii) permanently enjoining the respondents from accepting advance payments from any member of the public for photography services, other than repayment for advances or expenses actually incurred for or on behalf of such member of the public, (iv) awarding restitution to Elaina Olynciw in the amount of $500.00, plus 9% interest from August 12, 2006, (v) awarding restitution to Wassifa Bacchus in the amount of $700.00, plus 9% interest from February 17, 2007, (vi) awarding restitution to Staciemae Brown in the amount of $500.00, plus 9% interest from July 14, 2007, (vii) awarding restitution to Shawnace Seegars in the amount of $200.00, plus 9% interest from September 28, 2007, (viii) directing the respondents to pay a civil penalty in the sum of $10,000.00 to the State of New York pursuant to General Business Law § 350-d, and (ix) awarding costs to the petitioner in the amount of $2,000.00 against each respondent pursuant to CPLR 8303 (a) (6), and is otherwise denied.

Submit judgment. [*8]

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J.S.C.