People v McNair

[*1] People v McNair 2005 NY Slip Op 51727(U) [9 Misc 3d 1121(A)] Decided on September 12, 2005 Supreme Court, New York County Acosta, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 12, 2005
Supreme Court, New York County

People of the State of New York, Petitioner,

against

Andre C. McNair, Respondent.



400860/2005

Rolando T. Acosta, J.

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 [*2]

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 [*3]

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)

students 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. [*4]

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.

Dated: September 12, 2005

ENTER:

_________________________

J.S.C.