Opinion
400860/2005.
Decided September 12, 2005.
This matter was heard by the Court on August 2, 2005 pursuant to an order dated June 6, 2005 and served upon Respondent on July 8, 2005 with notice of this hearing. Respondent has not appeared.
Upon consideration of the evidence adduced at the hearing, judgment is rendered in favor of Petitioner in the amount of $182,393.00 in restitutions pursuant to Section 349 of the General Business Law ('GBL'); $38,500.00 in civil penalties pursuant to GBL Article 22-A; and costs in the amount of $2,000.00 in accordance with CPLR § 8303(a)(6).
Respondent Andre C. McNair made deliberate and material misrepresentations to parents enrolling their children in the Harlem Youth Enrichment Christian Academy ('HYECA'), thereby entitling the parents to all fees paid to the HYECA.
Respondent, through advertisements in the New York Amsterdam News, and through hundreds of flyers distributed to parents, misrepresented virtually every aspect of the HYECA. Such misrepresentations included the school's purported accreditations by the Board of Regents of the University of the State of New York, Mr. McNair being a licensed physician, course offerings and extracurricular activities and services such as computer laboratory, drama, tutoring, and gifted and accelerated programs. However, none of these services promised by the HYECA were provided. Instead, parents were defrauded by Respondent out of their hard earned money. The pleas by parents who enrolled their children in the HYECA to be refunded were also ignored.
Rather than providing the services promised or refunding tuition money, Mr. McNair abruptly and unconscionably closed the HYECA on February 14, 2003 without any prior notice, leaving parents without any refunds and scrambling to place their children in school during the middle of the school year.
The parents of the children enrolled in the HYECA are entitled to all fees paid to the HYECA. Section 349 of the GBL declares unlawful any deceptive act or practice in the furnishing of any service in the State of New York; and subsection (b) allows for restitution of any moneys obtained directly or indirectly from such unlawful acts or practices. Clearly, Respondent's advertisements that the HYECA was accredited by the State of New York, his failure to provide programs that were advertised, and his refusal to refund moneys paid all constitute deceptive acts. See FTC v. 126352 Ont., Inc., 994 F.2d 595 (1993) (failure to provide service or issue refunds constitute conduct which warrants restitution).
Evidence submitted to this Court includes a listing of seventy-seven (77) enrolled at the HYECA for the academic year of 2002-2003 with payments made by those students for tuition and other 'programs' offered by Respondent which total $182,393.
In addition, GBL Article 22-A, § 350-d provides for the assessment of a civil penalty of up to $500 for each deceptive act or false advertisement in violation of Article 22-A, an amount which shall accrue to the State of New York.
The Court finds that Respondent's deliberate and egregious acts of deception and false advertising warrants the maximum penalty of $500 per violation times the 77 listed students enrolled for the 2002-2003 academic year at the HYECA.
Accordingly judgment is rendered in favor of Petitioner and against Respondent in the sum of $182,393 in restitution damages, which may be used to provide for the parents' redress.
Additionally, judgment is rendered against Respondent in the sum of $38,500 in civil penalties which shall accrue to the State of New York; and it is further Adjudged that respondent pay costs to the State of New York in the amount of $2,000 in accordance with CPLR § 8303(a)(6).
The clerk is directed to enter judgment accordingly.