Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 7, #9

Issue: Civil Penalty for Shoplifting

When a defendant is arrested for shoplifting – typically, a charge of Petit Larceny, Penal Law § 155.25 – one possible collateral effect to consider is a civil claim by the property owner. A store has the right to sue for five times the value of the item that is stolen. This is provided for in General Obligations Law § 11-105.

Technically, the statute addresses “common law larceny by trespassory taking.”

The statute provides a minimum as well as maximum penalty. At minimum, the store can demand $75; the maximum is $500. Thus, where an item valued at $30 is taken, or attempted to be taken, the store can seek five times that value, or $150. The claim can be made regardless of whether the property is actually lost to the store, which is infrequent when a shoplifting incident occurs and the perpetrator arrested. Far more often, the items attempted to be purloined are returned to the store. (If the merchandise is not recovered, the statute allows the store to seek its value, up to $1,500, plus the statutory penalty).

The statute also makes liable the parents of an unemancipated minor.

Conviction or guilty plea is not a prerequisite to bringing suit. The burden of proof is by a preponderance. The statute also allows the store to make a demand, orally or in writing, for payment of damages prior to commencement of any suit.

Given the number of shoplifting charges that are filed in local courts, one might think that the number of small claims suits for these damages would be quite high as well. In fact, few courts have ever had such a claim filed, at least based on checking with the clerks of several local town courts, and City Court.

Instead, what usually happens is that the store, or an agent of the store, sends a letter to the named defendant, often a teenager. The letter recites the law and demands that the amount of the quintuple damages be paid, and often threatens suit if payment is not forthcoming.

In some instances, a copy of what purports to be a civil complaint is included.

In this situation, what should a defendant do, and what should an attorney advise? Many attorneys who are contacted in this situation recommend that the client, or the client's parents, ignore the letter. An attorney may ethically give such advice. There are plenty of other costs associated with a criminal proceeding that the defendant or family are likely to incur. See “New and Higher Surcharges for Crimes, Traffic Charges,” Rochester Daily Record, August 14, 2008. If the store wants to sue, it may do so. Rarely – very rarely – will any store file in any court under this statute. There are no reported cases in McKinney’s under this statute.

That infrequency of lawsuits has not stopped the letters threatening to sue. Often these letters are generated by a collection agency, or what is little better than a collection agency, making empty threats of litigation. While many recipients ignore these letters, undoubtedly enough of these will catch some low hanging fruit.

This “civil recovery legislation” of the type found in New York's General Obligations Law, has been enacted in all fifty states. The apparent theory behind the legislation is that retailers can keep prices lower and recoup losses by placing the cost for retail theft on those who have actually caused the losses.

Recently in the Southern District of Florida, a law firm was named as defendant for various violations of state and federal law. According to the class action complaint, the law firm, Palmer, Reifler & Associates, P.A., sends out hundreds of thousands of such letters on a monthly basis, making baseless threats to sue. See courts/florida/flsdce/1:2008cv21843/317404/1/

The same law firm also operates in New York State, generating form letters to New York defendants.

In addition to possible federal violations, there are also possible violations of New York state law.

© 2008 by Gary Muldoon