2013 New York Consolidated Laws
GBS - General Business
Article 26 - (390 - 399-ZZZ) MISCELLANEOUS
396-I - Acceptance of unexpired gift certificates.

 
    §  396-i.  Acceptance  of  unexpired  gift  certificates.  1.  For the
  purposes of this  section,  "gift  certificate"  shall  mean  a  written
  promise  or  electronic  payment  device that: (i) is usable at a single
  merchant or an affiliated group of merchants that share the  same  name,
  mark,  or  logo,  or  is  usable  at multiple, unaffiliated merchants or
  service providers; and (ii) is issued in a specified amount;  and  (iii)
  may  or may not be increased in value or reloaded; and (iv) is purchased
  and/or loaded on a prepaid basis for the future purchase or delivery  of
  any  goods  or  services;  and  (v)  is  honored upon presentation. Gift
  certificate shall not include an electronic payment device linked  to  a
  deposit  account,  or  prepaid  telephone  calling cards regulated under
  section ninety-two-f of the public service law.  Gift  certificate  also
  shall  not  include flexible spending arrangements as defined in Section
  106(c)(2) of the Internal Revenue Code, 26 U.S.C. § 106(c)(2);  flexible
  spending  accounts  subject to Section 125 of the Internal Revenue Code,
  26 U.S.C. § 125; Archer  MSAs  as  defined  in  Section  220(d)  of  the
  Internal  Revenue Code, 26 U.S.C. § 220(d); dependent care reimbursement
  accounts subject to Section 129 of the Internal Revenue Code, 26  U.S.C.
  § 129; health savings accounts subject to Section 223(d) of the Internal
  Revenue  Code,  26  U.S.C.  §  223(d), as amended by Section 1201 of the
  Medicare Prescription Drug, Improvement, and Modernization Act of  2003,
  Pub. L.  No. 108-173; or similar accounts from which, under the Internal
  Revenue  Code  and  its  implementing  regulations,  individuals may pay
  medical expenses, health care  expenses,  dependent  care  expenses,  or
  similar  expenses  on  a  pretax  basis. Gift certificate also shall not
  include a prepaid discount card or program used to  purchase  identified
  goods  or  services  at  a  price  or  percentage  below  the normal and
  customary price; provided  that  the  expiration  date  of  the  prepaid
  discount  card  or  program is clearly and conspicuously disclosed. Gift
  certificate also shall not include payroll  cards  or  other  electronic
  payment  devices  which  are  linked  to a deposit account and which are
  given in exchange for goods or services rendered.
    1-a. No person, firm, partnership, association or corporation  who  or
  which  issues  gift  certificates  or  store  credits,  or  who or which
  conducts a "closing out sale" or "defunct business sale" as  such  terms
  are  defined  in section five hundred eighty-one of this chapter, of the
  merchandise of  any  such  person,  firm,  partnership,  association  or
  corporation,  shall  refuse  to  accept  such  gift certificate or store
  credit in payment for goods or services used or bought for use primarily
  for personal, family or household purposes, including, but  not  limited
  to, goods or services advertised on sale or pursuant to a liquidation or
  close-out,  provided  that if the certificates or the terms of the store
  credits limit the period of time during which they may be used, they are
  presented for redemption before the expiration of such period of time.
    2. No person, firm, partnership, association  or  corporation  who  or
  which  issues  gift  certificates  or  store  credits,  or  who or which
  conducts a "closing out sale" or "defunct business sale" as  such  terms
  are defined in section five hundred eighty-one of this chapter, shall in
  any  manner  restrict  the  holder of a gift certificate or store credit
  from electing use of such gift certificate or store credit in  a  manner
  not  inconsistent  with  stated  terms of such gift certificate or store
  credit,  nor  shall  any  person,  firm,  partnership,  association   or
  corporation  who  or which issues gift certificates or store credits, or
  who or which conducts a "closing out sale" or "defunct business sale" as
  such terms are defined  in  section  five  hundred  eighty-one  of  this
  chapter,  alter  the term of a gift certificate or store credit after it
  has been issued.

    2-a. (a) The terms and conditions  of  a  gift  certificate  shall  be
  disclosed to the purchaser:
    (i)  on  a sign conspicuously posted stating "TERMS AND CONDITIONS ARE
  APPLIED TO GIFT CERTIFICATES/GIFT CARDS"; or (ii)  conspicuously  stated
  in an offer made by mail thus: "TERMS AND CONDITIONS ARE APPLIED TO GIFT
  CERTIFICATES/GIFT CARDS".
    (b)  For  purchases via electronic, computer, or telephonic means, the
  statement "TERMS AND CONDITIONS ARE APPLIED  TO  GIFT  CERTIFICATES/GIFT
  CARDS"  shall  be  stated  prior  to the customer's purchase of the gift
  certificate or  conspicuously  written  within  the  electronic  message
  offering a gift certificate for purchase.
    (c)  All  advertisements  or  promotions  for  gift certificates shall
  include a notice in like or similar term to the  following:  "TERMS  AND
  CONDITIONS ARE APPLIED TO GIFT CERTIFICATES/GIFT CARDS".
    3.  The  terms and conditions of a gift certificate store credit shall
  be clearly and conspicuously stated thereon. Terms and conditions  shall
  include  the  expiration date, whether any fees are assessed against the
  balance of the gift certificate, and whether a fee will be  charged  for
  the  replacement  of  a  gift  certificate  that  is  lost,  stolen,  or
  destroyed. Additional terms and conditions including, but not be limited
  to, policies related  to  refunds,  warranties,  changes  in  terms  and
  conditions, assignment and waiver shall be conspicuously printed: (a) on
  the  gift certificate; or (b) on an envelope or packaging containing the
  gift certificate, provided that a toll free telephone number  to  access
  the  additional terms and conditions is printed on the gift certificate;
  or (c) on an accompanying printed document, provided that  a  toll  free
  telephone  number  to  access  the  additional  terms  and conditions is
  printed on the gift certificate.
    3-a. The requirements of subdivisions two-a and three of this  section
  shall not apply to a gift certificate that has no terms and conditions.
    3-b.  Subparagraph  (i)  of paragraph (a) of subdivision two-a of this
  section shall not apply to gift certificates:
    (a) sold below face value or at a volume  discount  to  employees,  to
  nonprofit  and charitable organizations, or educational institutions for
  fundraising purposes; or
    (b) distributed to a consumer  or  employee  pursuant  to  an  awards,
  rewards, loyalty, or promotional program without any consideration being
  given in exchange for the gift certificate by the consumer or employee.
    3-c.  Nothing  in this section shall be construed to prevent unclaimed
  funds related to gift certificates from becoming abandoned under section
  thirteen hundred fifteen of the abandoned property law.
    4. Whenever there shall be a violation of this section, an application
  may be made by the attorney general in the name of  the  people  of  the
  state of New York to a court or justice having jurisdiction by a special
  proceeding  to  issue an injunction, and upon notice to the defendant of
  not less than five days, to enjoin and restrain the continuance of  such
  violations;  and  if it shall appear to the satisfaction of the court or
  justice that the defendant has,  in  fact,  violated  this  section,  an
  injunction  may  be  issued  by  such  court  or  justice, enjoining and
  restraining any further violation,  without  requiring  proof  that  any
  person  has,  in  fact,  been  injured  or  damaged thereby. In any such
  proceeding, the court may make allowances to  the  attorney  general  as
  provided  in  paragraph  six  of subdivision (a) of section eighty-three
  hundred  three  of  the  civil  practice  law  and  rules   and   direct
  restitution. Whenever the court shall determine that a violation of this
  section  has  occurred, the court may impose a civil penalty of not more
  than one thousand dollars for such violation.  In  connection  with  any
  such  application,  the attorney general is authorized to take proof and

  make a determination of the relevant facts and  to  issue  subpoenas  in
  accordance with the civil practice law and rules.
    5.   (a)  No  retroactive  fees  shall  be  assessed  against  a  gift
  certificate.
    (b) No monthly service fees may be assessed against the balance  of  a
  gift certificate prior to the thirteenth month of dormancy.
    (c)  For  the  purposes  of  this  subdivision,  "dormancy" shall mean
  non-use of a gift certificate. Use of a gift certificate shall  include,
  but not be limited to, adding value, or purchases.
    6. The provisions of this section shall be exclusive and shall preempt
  any  provisions  of  local law, ordinance or code, and no locality shall
  impose requirements that are inconsistent with or more restrictive  than
  those set forth in this section.