NY is not a two-party consent state

Disclaimer: I am not a lawyer

TL;DR - New York is not a two party consent state

I mentioned in my post about EUC regulations in NYC that I don't really like when people claim a law means/says/does something but doesn't actually quote the law. I came across a post from a law firm about how New York might have become a two-party consent state on 2017-08-21 that again does exactly that but this time it is from a law firm.

Their analysis is, in my opinion, poor to say the least.

First, of course let's actually reference the law.

Second, let's see what changed. On 2017-08-25 the following text (among other text) was added to the law:

d. whether the call is being recorded

Naturally, the NYS law site is so terrible I can't link to the previous version (2017-08-18) directly or see a diff. But it appears that all it says is that the business making the telemarketing call shall (I hate this word) disclose whether the call is being recorded. But, the law in New York State defines eavesdropping differently

"Wiretapping" means the intentional overhearing or recording of a
telephonic or telegraphic communication by a person other than a sender
or receiver thereof, without the consent of either the sender or
receiver, by means of any instrument, device or equipment.

So if you are a telemarketer and you record a call without telling someone in New York it appears that you can't be charged with wiretapping. You could be forced to provide records related to the recordings after repeated violations:

13. When the department has reason to believe a telemarketer has
engaged in repeated unlawful acts in violation of this section, or when
a notice of hearing has been issued pursuant to subdivision fourteen of
this section, the department may request in writing the production of
relevant documents and records as part of its investigation. If the
person upon whom such request was made fails to produce the documents or
records within thirty days after the date of the request, the department
may issue and serve subpoenas to compel the production of such documents
and records. If any person shall refuse to comply with a subpoena issued
under this section, the department may petition a court of competent
jurisdiction to enforce the subpoena and such sanctions as the court may
direct.

And you could be subject to a maximum $20k fine:

14. a. Where it is determined after hearing that any person has
violated one or more provisions of this section, the secretary, or any
person deputized or so designated by him or her may assess a fine not to
exceed twenty thousand dollars for each violation.

I would guess that if this was ever enforced to the degree that a company had to pay significant fines they would fight it and that part of the law would be invalidated because of the severability section:

17. Severability. If any clause, sentence, paragraph or part of this
section shall be adjudged by any court of competent jurisdiction to be
invalid, such judgment shall not affect, impair or invalidate the
remainder thereof, but shall be confined in its operation to the clause,
sentence, paragraph or part thereof directly involved in the controversy
in which such judgment shall have been rendered.

So, in my opinion, New York is not a two-party consent state. If you are a telemarketer you should disclose that you are recording the call. If you don't, you could be fined. But you won't be charged with wiretapping.