Preview
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024
EXHIBIT G
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023
NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024
: LAWS OF NEW YORK.-By Authority
CHAPTER 115
wT to amend the executive law. in relation to elarifying the definition of
persistent fraud or illegality
., .a law May 27, 1975.with the approval of the Governor. Passed by a majority
vote, three fifths being present
Peoplc of the State of New York, represented in Senate and Assembly, do
T
+etion L Subdivision twelve of section sixty-three of the ex-
tire law, as last amended by chapter forty-four of the laws of
¡neteen hundred seventy, is hereby amended to read as follows:
any person shall engage in repeated or
p Whenever fraudulent
demonstrate persistent fraud or illegality in ;
die al acts or otherwise
me earrying on, conducting or transaction of business, the attorney
eneral may apply, in the name of the people of the state of New
york, to the supreme court of the state of New York, on notice of .
¡re days, for an onler enjoining the continuance of such business
tivity or of any fraudulent or illegal acts, directing restitution
ami. in an appropriate case, cancelling any certificate filed under
and by virtue of the provisions of section four hundred forty of the
tormer penal law or section one hundred thirty of the general
business law, and the court may award the relief applied for or so
"fraud"
much thereof as it may deem proper. The word or
fraudulent"
as used herein shall include any device, scheme or
artifice to defraud and any deception, misrepresentation, conceal-
ment, suppression, false pretence, false promise or unconscionable
fraud" "illegality"
contractual provisions. The term "persistent or
as used herein shall include continuance or carrying on of any
fraudulent or illegal act or conduct.
54 In connection with any such proposed application, the attorney
general is authorized to take proof and make a determination of the
n evant facts and to issue subpoenas in accordance with the civil
practice law and rules.
§ 2. This act shall take effect immediately.
-
EXPLANATIoN &tter in itesel is neW;m&tter in brae els is Oldlaw to be Omitted.
. STATEOF NEW YOR
Dnartment of State
I have compared the preceding with the original law on file in this office, and
do hereby certify that the same is a correct transcript therefrom and of the
whole of said original law.
MARIO M. CUOMO
Secretary of State
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STATE OF NEW YORK
don of this article
umstances be ad-
1839
cison, such judg-
1975-1976 Regular Sessions
mrt, provision or (Q&
y. in .tchich such .
.,f., o
IN SENATE
egislature anuary 29, 1975
hereby
thereof
.
ntroduced by Sen. GORDON--(at request of the New York State
Department of Law)-read twice and ordered printed, and when
00), or so much printed to be committed to the Committee on Finance
3dlothe depart-
AN ACT
ry ot ofherwise
o ameId the executive law, in relation to clarifying the definition
.1 sernee, mam-
of persistent fraud or illegality
lâiods, of article
Peóple of the State of New York, represented in Senate and
r this act. Such Asembly;do enact as follows:
o moneys on Subdivision twelve of section sixty-three of the execu-
uñd therein, as last amended by chapter forty-four of the laws of nineteen
tiÈed or 31Adfel seventy, is hereby amended to read as follows:
Whenever any person shall enÿtge in repeated fraudulent or
anerill business acts or otherwise demonstrate persistent fraud or illegality in
or
3ralp special carrying on, conducting or transaction of business, the attorney
ing. eral may apply, in the name of the people of the state of New
next k, to the supreme court of the state of New York, on notice of five
nuary
aw. anorder enjoining the continuance of such business activity
Irepealed by this
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S. 1839 2
1 or of any fraudulent or illegal acts, directing restitution and, in an
TA
2 appropriate case, cancelling any certificate filed under and by virtue
S. 1840
3 of the provisions of section four hundred forty of the former penal
1976-
. 4 law or section one húndred thirty of the general business law, and the
5 court may award the relief applied for or so much thereof as it may
"fraud" "fraudulent"
deem proper. The word or as used herein¼hall
ENAT
6
7 include any device, scheme or artifice to defraud and any deception,
8 misrepresentation, concealment, suppression, false pretence, false
promise or unconscionable contractual provisions. The term "persis-
9
fraud" "illegality" shall ihclude
10 tent or as used herein continuance.
any' fraudulent or illegal act or conduct.
11 or carrying on of
IN SENATE-Intro
GALIBE14--read t
12 In connectioI with any such proysed application, the attorney
be committed to the
13 general is authorized to take proof and make a determination of th
IN ASSEMBLY-II
. Sponsored by-Mes
14 relevant facts and to issue subpoenas m accordance with the civil to the Committee of
" 15 practice law and rules.
16 § 2. This act shall take effect immediately.
to amend the execut
financial and medic
18
The People of the S
19 Assembly, do e"iact as
20 1 Section 1. Article f
21 2 ewlit hundmi fifty-tt
n numlwml to tw arti
4 hundm! thrw. melast
23
26
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4530
1975-1976 Regular Sessions
IN ASSEMBTü
March 3, 1975
Introduced by Mr.. RÔBACH-Multi-Sponsored by-Messes.
ROOSA, S. POSNER, SILVERMAN, SIEGEL, VIRGILIO,
PESCE-(at request of State Department of Law)-read once
and referred to the dommittee on Governmental Operations
AN ACT
to amend the executive law, in relation to clarifying the definition
of persistent fraud or illegality
The feople of the State of New York, represented in Senate and
·
Assembly, do enact as follows:
1 Section 1. Subdivision twehm of section sixty-three of the execu-
K tive law, as last amended by chapter forty-four of the laws of nineteen
hundred seventy, is hereby amendeifto read as follows:
12. Whenever any person shall engage in repeated fraudulent or
5 legal acts or otherwise demonstra'te persistent fraud or in
illegality
the cariying on, conducting'or transaction of business, the attorney
general may. apply, in the name of the people of the state of New
York, to the supreme court of thejstate of New York, on notice of fi e
9 days, for order the continuance of such business
any enjoining
EmaWAMON - Matter in ifolics is new; matter in brackets [ is old law to be omitted.
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A. 4530
activity or of any fraudule-nt or illegal acts, directing restitution and, i
2 , in an appropriat.e case, cancelling any certificate filed under and by
3 virtue of the provisions of section four hundred forty of the former
4 penal law or section one hundred thirty of the general business law,
5 and the court may award the relief applied for or so much thereof as
"fraud" "fraudulent"
6 it may deem proper. The word or as used
7 herein shall include any device, scheme or artifice to defraud and any
8 deception, misrepresentation, concealment, suppression, false pre-
9 tence, false promise or unconscionable contractual provisions. The
fraud" "illegality"
10 tefm "persistent or as used herein shall include
11 continuance or carrying on of any fraudulent or illegal act or
12 coisduct.
13 In connection with any su h proposed application, the attortiey
14 general is authorized to take proof and make a determination of the
15 relevant facts and to issue subpoenas in accordance with the civil
16 practice law and rules.
17 § 2. This act shall take effect'immediately.
18 .
19
20
23
24
25
26
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L/ 7
, 1839
975 1976 Regular Sessions
IN SENATE
January 29, 1975
.Introduced by Sen. GORDON--(at nest at the New York State
Department at Law)-read twice ordered printed, and whexi
printal to be committed to the Committee on Finance
AN ACT
Notes to amend the executiyd law,1n relation to clarifying the definition
of persistent fraud or illegality
'
APPRtlyrg
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APR I 5 1975
1975
SENATE o 23
The Senat c 1till Senate30. ) [_ __
Assem. Rept. No.
by Mr.
Entitled:"
1839
m. GORDON
AN ACT TO AMEm Titi EXEcUTIVE
LATION TO CLARIFYINGTIf LAW, IN RE-
DEFINITIONOF
PERSISTENTFRAUDOR ILLEGALITY
"
was read the third time
The President put the question whether the Senate would agree to the final passage of said bill, the
same having been printed and upon the desks of the members in its final form at least three calendar
legislative days, and it wasdecided in the affirmative, a majority of all the Senators elected voting in
favor thereof and three-fifths being present, as follows:
AYE Dist. NAY AYE Dist. NA
47 Mr. Anderson 22 Mr. Lewis
49 Mr. Auer 55gxe
45 Mr. Barclay 24 Mr. Marchi
23 Mr. Beatty me c219FC19Farino
33 Mr. Bernstein .28 Mr. McCall
19 Mr. Bloorn 59 Mr. McFarland
9 Ms. Burstein 14 Mr. Moore
7 Mr. Caemmerer 42 Mr. Nolan
34 Mr. Calandra 27 Mr. Ohrenstein ·
21 Mr. Conklin 17 Mr. Owens
46 Mr. Donovan 11 Mr. Padavan
6 Mr. Dunne 60 Mr. Paterson
54 Mr. Eckert 53 Mr. Perry
35 Mr. Flynn 36 Mr. Pisani P S
22=:MrcCra5ber-=r==== 57 Mr. Present
30 Mr. Garcia 39 Mr. Rolison
1 Mr. Giuffreda 31 Mr. Ruiz
...
13 Mr. Gold 10 Mr. Santucci
26 Mr. Goodman 40 Mr. Schermerborn
37 Mr. Gordon 2 Mr. Smith, B. C.
56 Mr. Griffin 51 Mr. Smith, W. T.
20 Mr. Halperin 43 Mr. Stafford
41 Mr. Hudson 18 Mr. Straub
44 Mr. Isabella 55 Mr. Tauriello
4 Mr. Johnson 3 Mr. Trunzo
__..
15 Mr. Knorr 58 Mr. Volker
29 Mr. Leichter 52 Mr. Warder
8 Mr. Levy
AYES
NAYS
¶ Ordered, that the Secretary deliver said bill to the Assembly and request its concurrence therein.
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'
he.LISO
9&As 1 9 7 5
nsin itatics)
(Repubh":*
Th,,, Whoyoted ThoseWhoyoted ThoseWhoYoted ThoseWhoVoted ThoseWhoVoted
to the Affirmative in the Negative in the Affirmative those wn, y
in the Nepetive In the AfNrmpUw" onthe pe
Mr. Abramson Mr. Grannis Mr. Montano
Miss Amatucci Mr. Greco Mr. (G.
Murphy J.)
Mr. Barbaro Mr. Griffin Mr. (M.
Murphy J.)
31r. Betros Mr. Griffith Mr. Murphy (T. J.)
_Me---l¾wetu Miss Gunning Mr. Nicolosi
Mr. Blumenthal Mr. Haley -Me--N¼ne-
Mr. Brewer Alw--Henrierr
Mr. Brown M.fo... Mr. Orazio
Mr. Burns Mr. Harenberg Mr. Passannante
Mr. Burrows Mr. Harris
Mr. Cologero Mr. Hav:ley
Mr. Healey Mr. Posner (S.)
M1. Cla_
Cochrane'
--Me--Hecht -w,..
Mr. Mr. Henderson Mr. Reilly
Mrs. Connelly Mr. Herbst Mr. Riford
Mr. Connor Mr. Hevesi Mr. Rohach
Mr. Cook (C. D.) Mr. Hinchey Mr. Roosa
Mr. Cook (D. W.) Mr. Hochberg Mr. Ross
Mr. Cooperman Mr. Hochbrueckner Mrs. Runyon
Mr. Hoyt Mr. Ryan
Mr. Hurley Mr. Schmidt
Mr. D'Amato Mr. Izard Mr. Schumer
Mr. D'Andrea fr. Sears
.M.e.--9eeeée Mr. Kelleher Mr. Serrano
Mr. DelliBov; Mr. Kidder
Mr. Del Toro Mr. Koppell Mr. Siegel
§
Mr. DeSalvio Mr. Silverman
Mr. DiCarlo
Mr. Lane
Mrs. Diggs Mr. Lasher
Mr..Dokuchitz ¬-0hee«~~
Mr. Duryea Mr. Lehner Mr. Stott
Mr. Dwyer Mr. Lentol Mr. Stre1zin
.-.M.o-Emany- Mr. Levy Mr. Suchin
Mr. Esposito Mr. Lewis rr.
Mr. Eve Mr. Lill Mr. Tallon
Mr. Farrell Mr. Lisa
Mr. Ferris Mr. Lopresto Mr. Thorp
Mr. Field Mr. Mannix
Mr. Fink Mr. Marchiselli Mr. Vann
Mr. Flack Mr. Margiotta ierv
M-e--fMmwgren Mr. Marshall . Mr. Virgilio
Mr. Fortune Mr. McCabe Mr. Walsh
Mr. Fremming }Ir. Mega
Mr. Frey Mr. Weprin
-MW@fiffec!0W,)
Mr. Gazzara 14. Milid\ Mr. Wertz
M.CT::: Ywl Mr. Yevoli
Mr. Gorski Mr. Miller (M. Mr. Zagame
H.)
Mr. Gottfried Mr. Mirto Mr. Zimmer
Mr. Graber Mr. Molinari .--M•Speaker
AYES ....... . ..........
NOES .......... ..........
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DEPARTMENT OF LAW
LOUls J.LErKowiTz ALBANY 12 2 2 4
EMORANDUM FOR THE GOVERNOR
Re: S. 1839
The purpose of this bill, which was recommended by the
Attorney General, is to amend Executive Law § 63, subdivision
12, so as to make unmistakably clear the legislative intent
that not just a single criterion, but two alternative
criteria, shall be applied to determine whether the Attorney
General may bring an action to enjoin certain fraudulent
or illegal practices.
The bill is to take effect immediately.
The subdivision expressly authorizes such injunctive
action whenever a person engages in "repeated"
fraudulent
or acts or otherwise "persistent"
illegal demonstrates fraud
or illegality. Yet the courts have shown a tendency to. read
and treat "or .persistent" alternative as if
the otherwise . .
it were Inerely reiterative and duplicative of, and in no sense
distinguishable from, the preceding requirement concerning
"repeated"
(i.e., separate and distinct) acts of fraud or
illegality. See, e.g. , Matter of People v. Urban Relocation Co.
40 A D 2d 598 (1st Dept. 1972), affd. 33 N Y 2d 553 (1973).
The ef fect, of course, is to excise and thus nullify the
alternative of "persistent" fraud
statutory (i.e., continuing)
or illegality.
The proposed amendment would eliminate this ambiguity
by making clear the legislative purpose to apply not just the
first, but either of these statutory criteria. Tnere can be
no serious question that fraud or illegality of the nature
contemplated by the statute should be enjoined, regardless of
"repeated" acts
whether it occurs in the form of separate and
in one overall but "persistent" or continuing aspect.
or simply
This amendment provides the most direct and effective means
of full judicial implementation of the original legis-
assuring
lative intent that the two statutory criteria be applied
alternatively in adjudicating the right to seek injunctive
relief.
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MEMORANDUM FOR THE GOVERNOR
This bill is part of the legislative prograra of tim
Attorney General and there is no legal objection to the
bill. I strongly recommend its enactment.
Dated:May 20, 1975
Res ctfully submitted,
LOUIS . LEFK ITZ
Attorney General
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MEMORaNDUM
1839 . Mr. Gordon
Re: Sernte
Assembly
An ACT to amend the executive law, in relation to clarifying
the definition of persistent fraud or illegality
This bill, recommended by the Attorney General, would
amend Executive Law § 63, subdivision 12, so as to make unmis-
takably clear the legislative intent that not just a single
criterion, but two alternative criteria, shall be applied to
determine whether the Attorney General may bring an action to
enjoin certain fraudulent or illegal practices.
The subdivision expressly authorizes such in unctive
"repeated"
action whenever a person engages in fraudulent or
"persistent"
illegal acts or otherwise, demonstrates fraud or
illegality. Yet the courts have shown a tendency to read and
persistent"
treat the "or otherwise . .. . alternative as if it
were merely reiterative and duplicative of, and in no sense
distinguishable from,
Preview
FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 EXHIBIT G FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 : LAWS OF NEW YORK.-By Authority CHAPTER 115 wT to amend the executive law. in relation to elarifying the definition of persistent fraud or illegality ., .a law May 27, 1975.with the approval of the Governor. Passed by a majority vote, three fifths being present Peoplc of the State of New York, represented in Senate and Assembly, do T +etion L Subdivision twelve of section sixty-three of the ex- tire law, as last amended by chapter forty-four of the laws of ¡neteen hundred seventy, is hereby amended to read as follows: any person shall engage in repeated or p Whenever fraudulent demonstrate persistent fraud or illegality in ; die al acts or otherwise me earrying on, conducting or transaction of business, the attorney eneral may apply, in the name of the people of the state of New york, to the supreme court of the state of New York, on notice of . ¡re days, for an onler enjoining the continuance of such business tivity or of any fraudulent or illegal acts, directing restitution ami. in an appropriate case, cancelling any certificate filed under and by virtue of the provisions of section four hundred forty of the tormer penal law or section one hundred thirty of the general business law, and the court may award the relief applied for or so "fraud" much thereof as it may deem proper. The word or fraudulent" as used herein shall include any device, scheme or artifice to defraud and any deception, misrepresentation, conceal- ment, suppression, false pretence, false promise or unconscionable fraud" "illegality" contractual provisions. The term "persistent or as used herein shall include continuance or carrying on of any fraudulent or illegal act or conduct. 54 In connection with any such proposed application, the attorney general is authorized to take proof and make a determination of the n evant facts and to issue subpoenas in accordance with the civil practice law and rules. § 2. This act shall take effect immediately. - EXPLANATIoN &tter in itesel is neW;m&tter in brae els is Oldlaw to be Omitted. . STATEOF NEW YOR Dnartment of State I have compared the preceding with the original law on file in this office, and do hereby certify that the same is a correct transcript therefrom and of the whole of said original law. MARIO M. CUOMO Secretary of State FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 STATE OF NEW YORK don of this article umstances be ad- 1839 cison, such judg- 1975-1976 Regular Sessions mrt, provision or (Q& y. in .tchich such . .,f., o IN SENATE egislature anuary 29, 1975 hereby thereof . ntroduced by Sen. GORDON--(at request of the New York State Department of Law)-read twice and ordered printed, and when 00), or so much printed to be committed to the Committee on Finance 3dlothe depart- AN ACT ry ot ofherwise o ameId the executive law, in relation to clarifying the definition .1 sernee, mam- of persistent fraud or illegality lâiods, of article Peóple of the State of New York, represented in Senate and r this act. Such Asembly;do enact as follows: o moneys on Subdivision twelve of section sixty-three of the execu- uñd therein, as last amended by chapter forty-four of the laws of nineteen tiÈed or 31Adfel seventy, is hereby amended to read as follows: Whenever any person shall enÿtge in repeated fraudulent or anerill business acts or otherwise demonstrate persistent fraud or illegality in or 3ralp special carrying on, conducting or transaction of business, the attorney ing. eral may apply, in the name of the people of the state of New next k, to the supreme court of the state of New York, on notice of five nuary aw. anorder enjoining the continuance of such business activity Irepealed by this FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 S. 1839 2 1 or of any fraudulent or illegal acts, directing restitution and, in an TA 2 appropriate case, cancelling any certificate filed under and by virtue S. 1840 3 of the provisions of section four hundred forty of the former penal 1976- . 4 law or section one húndred thirty of the general business law, and the 5 court may award the relief applied for or so much thereof as it may "fraud" "fraudulent" deem proper. The word or as used herein¼hall ENAT 6 7 include any device, scheme or artifice to defraud and any deception, 8 misrepresentation, concealment, suppression, false pretence, false promise or unconscionable contractual provisions. The term "persis- 9 fraud" "illegality" shall ihclude 10 tent or as used herein continuance. any' fraudulent or illegal act or conduct. 11 or carrying on of IN SENATE-Intro GALIBE14--read t 12 In connectioI with any such proysed application, the attorney be committed to the 13 general is authorized to take proof and make a determination of th IN ASSEMBLY-II . Sponsored by-Mes 14 relevant facts and to issue subpoenas m accordance with the civil to the Committee of " 15 practice law and rules. 16 § 2. This act shall take effect immediately. to amend the execut financial and medic 18 The People of the S 19 Assembly, do e"iact as 20 1 Section 1. Article f 21 2 ewlit hundmi fifty-tt n numlwml to tw arti 4 hundm! thrw. melast 23 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 4530 1975-1976 Regular Sessions IN ASSEMBTü March 3, 1975 Introduced by Mr.. RÔBACH-Multi-Sponsored by-Messes. ROOSA, S. POSNER, SILVERMAN, SIEGEL, VIRGILIO, PESCE-(at request of State Department of Law)-read once and referred to the dommittee on Governmental Operations AN ACT to amend the executive law, in relation to clarifying the definition of persistent fraud or illegality The feople of the State of New York, represented in Senate and · Assembly, do enact as follows: 1 Section 1. Subdivision twehm of section sixty-three of the execu- K tive law, as last amended by chapter forty-four of the laws of nineteen hundred seventy, is hereby amendeifto read as follows: 12. Whenever any person shall engage in repeated fraudulent or 5 legal acts or otherwise demonstra'te persistent fraud or in illegality the cariying on, conducting'or transaction of business, the attorney general may. apply, in the name of the people of the state of New York, to the supreme court of thejstate of New York, on notice of fi e 9 days, for order the continuance of such business any enjoining EmaWAMON - Matter in ifolics is new; matter in brackets [ is old law to be omitted. FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 A. 4530 activity or of any fraudule-nt or illegal acts, directing restitution and, i 2 , in an appropriat.e case, cancelling any certificate filed under and by 3 virtue of the provisions of section four hundred forty of the former 4 penal law or section one hundred thirty of the general business law, 5 and the court may award the relief applied for or so much thereof as "fraud" "fraudulent" 6 it may deem proper. The word or as used 7 herein shall include any device, scheme or artifice to defraud and any 8 deception, misrepresentation, concealment, suppression, false pre- 9 tence, false promise or unconscionable contractual provisions. The fraud" "illegality" 10 tefm "persistent or as used herein shall include 11 continuance or carrying on of any fraudulent or illegal act or 12 coisduct. 13 In connection with any su h proposed application, the attortiey 14 general is authorized to take proof and make a determination of the 15 relevant facts and to issue subpoenas in accordance with the civil 16 practice law and rules. 17 § 2. This act shall take effect'immediately. 18 . 19 20 23 24 25 26 FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 L/ 7 , 1839 975 1976 Regular Sessions IN SENATE January 29, 1975 .Introduced by Sen. GORDON--(at nest at the New York State Department at Law)-read twice ordered printed, and whexi printal to be committed to the Committee on Finance AN ACT Notes to amend the executiyd law,1n relation to clarifying the definition of persistent fraud or illegality ' APPRtlyrg FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 APR I 5 1975 1975 SENATE o 23 The Senat c 1till Senate30. ) [_ __ Assem. Rept. No. by Mr. Entitled:" 1839 m. GORDON AN ACT TO AMEm Titi EXEcUTIVE LATION TO CLARIFYINGTIf LAW, IN RE- DEFINITIONOF PERSISTENTFRAUDOR ILLEGALITY " was read the third time The President put the question whether the Senate would agree to the final passage of said bill, the same having been printed and upon the desks of the members in its final form at least three calendar legislative days, and it wasdecided in the affirmative, a majority of all the Senators elected voting in favor thereof and three-fifths being present, as follows: AYE Dist. NAY AYE Dist. NA 47 Mr. Anderson 22 Mr. Lewis 49 Mr. Auer 55gxe 45 Mr. Barclay 24 Mr. Marchi 23 Mr. Beatty me c219FC19Farino 33 Mr. Bernstein .28 Mr. McCall 19 Mr. Bloorn 59 Mr. McFarland 9 Ms. Burstein 14 Mr. Moore 7 Mr. Caemmerer 42 Mr. Nolan 34 Mr. Calandra 27 Mr. Ohrenstein · 21 Mr. Conklin 17 Mr. Owens 46 Mr. Donovan 11 Mr. Padavan 6 Mr. Dunne 60 Mr. Paterson 54 Mr. Eckert 53 Mr. Perry 35 Mr. Flynn 36 Mr. Pisani P S 22=:MrcCra5ber-=r==== 57 Mr. Present 30 Mr. Garcia 39 Mr. Rolison 1 Mr. Giuffreda 31 Mr. Ruiz ... 13 Mr. Gold 10 Mr. Santucci 26 Mr. Goodman 40 Mr. Schermerborn 37 Mr. Gordon 2 Mr. Smith, B. C. 56 Mr. Griffin 51 Mr. Smith, W. T. 20 Mr. Halperin 43 Mr. Stafford 41 Mr. Hudson 18 Mr. Straub 44 Mr. Isabella 55 Mr. Tauriello 4 Mr. Johnson 3 Mr. Trunzo __.. 15 Mr. Knorr 58 Mr. Volker 29 Mr. Leichter 52 Mr. Warder 8 Mr. Levy AYES NAYS ¶ Ordered, that the Secretary deliver said bill to the Assembly and request its concurrence therein. FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 ' he.LISO 9&As 1 9 7 5 nsin itatics) (Repubh":* Th,,, Whoyoted ThoseWhoyoted ThoseWhoYoted ThoseWhoVoted ThoseWhoVoted to the Affirmative in the Negative in the Affirmative those wn, y in the Nepetive In the AfNrmpUw" onthe pe Mr. Abramson Mr. Grannis Mr. Montano Miss Amatucci Mr. Greco Mr. (G. Murphy J.) Mr. Barbaro Mr. Griffin Mr. (M. Murphy J.) 31r. Betros Mr. Griffith Mr. Murphy (T. J.) _Me---l¾wetu Miss Gunning Mr. Nicolosi Mr. Blumenthal Mr. Haley -Me--N¼ne- Mr. Brewer Alw--Henrierr Mr. Brown M.fo... Mr. Orazio Mr. Burns Mr. Harenberg Mr. Passannante Mr. Burrows Mr. Harris Mr. Cologero Mr. Hav:ley Mr. Healey Mr. Posner (S.) M1. Cla_ Cochrane' --Me--Hecht -w,.. Mr. Mr. Henderson Mr. Reilly Mrs. Connelly Mr. Herbst Mr. Riford Mr. Connor Mr. Hevesi Mr. Rohach Mr. Cook (C. D.) Mr. Hinchey Mr. Roosa Mr. Cook (D. W.) Mr. Hochberg Mr. Ross Mr. Cooperman Mr. Hochbrueckner Mrs. Runyon Mr. Hoyt Mr. Ryan Mr. Hurley Mr. Schmidt Mr. D'Amato Mr. Izard Mr. Schumer Mr. D'Andrea fr. Sears .M.e.--9eeeée Mr. Kelleher Mr. Serrano Mr. DelliBov; Mr. Kidder Mr. Del Toro Mr. Koppell Mr. Siegel § Mr. DeSalvio Mr. Silverman Mr. DiCarlo Mr. Lane Mrs. Diggs Mr. Lasher Mr..Dokuchitz ¬-0hee«~~ Mr. Duryea Mr. Lehner Mr. Stott Mr. Dwyer Mr. Lentol Mr. Stre1zin .-.M.o-Emany- Mr. Levy Mr. Suchin Mr. Esposito Mr. Lewis rr. Mr. Eve Mr. Lill Mr. Tallon Mr. Farrell Mr. Lisa Mr. Ferris Mr. Lopresto Mr. Thorp Mr. Field Mr. Mannix Mr. Fink Mr. Marchiselli Mr. Vann Mr. Flack Mr. Margiotta ierv M-e--fMmwgren Mr. Marshall . Mr. Virgilio Mr. Fortune Mr. McCabe Mr. Walsh Mr. Fremming }Ir. Mega Mr. Frey Mr. Weprin -MW@fiffec!0W,) Mr. Gazzara 14. Milid\ Mr. Wertz M.CT::: Ywl Mr. Yevoli Mr. Gorski Mr. Miller (M. Mr. Zagame H.) Mr. Gottfried Mr. Mirto Mr. Zimmer Mr. Graber Mr. Molinari .--M•Speaker AYES ....... . .......... NOES .......... .......... FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 DEPARTMENT OF LAW LOUls J.LErKowiTz ALBANY 12 2 2 4 EMORANDUM FOR THE GOVERNOR Re: S. 1839 The purpose of this bill, which was recommended by the Attorney General, is to amend Executive Law § 63, subdivision 12, so as to make unmistakably clear the legislative intent that not just a single criterion, but two alternative criteria, shall be applied to determine whether the Attorney General may bring an action to enjoin certain fraudulent or illegal practices. The bill is to take effect immediately. The subdivision expressly authorizes such injunctive action whenever a person engages in "repeated" fraudulent or acts or otherwise "persistent" illegal demonstrates fraud or illegality. Yet the courts have shown a tendency to. read and treat "or .persistent" alternative as if the otherwise . . it were Inerely reiterative and duplicative of, and in no sense distinguishable from, the preceding requirement concerning "repeated" (i.e., separate and distinct) acts of fraud or illegality. See, e.g. , Matter of People v. Urban Relocation Co. 40 A D 2d 598 (1st Dept. 1972), affd. 33 N Y 2d 553 (1973). The ef fect, of course, is to excise and thus nullify the alternative of "persistent" fraud statutory (i.e., continuing) or illegality. The proposed amendment would eliminate this ambiguity by making clear the legislative purpose to apply not just the first, but either of these statutory criteria. Tnere can be no serious question that fraud or illegality of the nature contemplated by the statute should be enjoined, regardless of "repeated" acts whether it occurs in the form of separate and in one overall but "persistent" or continuing aspect. or simply This amendment provides the most direct and effective means of full judicial implementation of the original legis- assuring lative intent that the two statutory criteria be applied alternatively in adjudicating the right to seek injunctive relief. FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 MEMORANDUM FOR THE GOVERNOR This bill is part of the legislative prograra of tim Attorney General and there is no legal objection to the bill. I strongly recommend its enactment. Dated:May 20, 1975 Res ctfully submitted, LOUIS . LEFK ITZ Attorney General FILED: NEW YORK COUNTY CLERK 03/15/2024 04:43 PM INDEX NO. 451549/2023 NYSCEF DOC. NO. 849 RECEIVED NYSCEF: 03/15/2024 MEMORaNDUM 1839 . Mr. Gordon Re: Sernte Assembly An ACT to amend the executive law, in relation to clarifying the definition of persistent fraud or illegality This bill, recommended by the Attorney General, would amend Executive Law § 63, subdivision 12, so as to make unmis- takably clear the legislative intent that not just a single criterion, but two alternative criteria, shall be applied to determine whether the Attorney General may bring an action to enjoin certain fraudulent or illegal practices. The subdivision expressly authorizes such in unctive "repeated" action whenever a person engages in fraudulent or "persistent" illegal acts or otherwise, demonstrates fraud or illegality. Yet the courts have shown a tendency to read and persistent" treat the "or otherwise . .. . alternative as if it were merely reiterative and duplicative of, and in no sense distinguishable from,