Private persons cannot bring a class action under the Donnelly Act because the treble damages remedy provided in General Business Law § 340(5) is a "penalty" within the meaning of CPLR 901(b), the recovery of which in a class action is not specifically authorized and the imposition of which cannot be waived (Rubin v. Nine West Group, Sup Ct, Westchester County, John DiBlasi, J., 1999 N.Y. Misc. LEXIS 655, *10-14; Russo Dubin v. Allied Maintenance Corp., 95 Misc.2d 344, 348-349 [Sup Ct, N.Y. County, Hilda Schwartz, J., 1978]; Blumenthal v. American Socy. of Travel Agents, Sup Ct, N.Y. County, Arnold Fein, J., 1977 WL 18392, *3; see also, McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C901:7; Cox v. Microsoft Corp., 290 A.D.2d 206 (Appeal No 4239 decided simultaneously herewith). We note the specific authorization to bring class actions on behalf of governmental entities given to the Attorney General in General Business Law § 342-b, the absence of such specific authorization in section 340(6), and the enactment of the latter provision after two courts (Blumenthal,supra; Russo Dubin, supra) had held that class actions could not be brought under the Donnelly Act because not specifically authorized (see, McKinney's Cons Laws of NY, Book 1, Statutes §§ 74, 240, 363). The conclusion that treble damages under the Donnelly Act are penal in nature is not undermined by the fact that they are mandatory, i.e., not discretionary or contingent upon a finding of bad faith, and indeed it can be argued that a statute providing for an award of multiple damages without need to prove willfulness or bad faith is more punitive than one that does require such proof.

Motion seeking leave to file an amicus curiae brief granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.