2013 New York Consolidated Laws
GBS - General Business
Article 26 - (390 - 399-ZZZ) MISCELLANEOUS
396-M - Mail-order or telephone-order merchandise.

 
    §  396-m.  Mail-order  or telephone-order merchandise. 1. This section
  shall apply to any mail-order business or any telephone  order  business
  which  is  located  in this state or advertises a New York state mailing
  address or telephone number.
    2. Definitions, as used in this section:
    a. "mail-order business" shall mean a business which is engaged in the
  solicitation of orders by advertisement or otherwise for merchandise  or
  services  connected  with  merchandise  to  be  shipped  to the customer
  through the mail or by other carrier, upon  receipt  of  an  order  with
  payment  or with charge account authorization remitted through the mail,
  electronic mail or the Internet or by telephone and the  merchandise  by
  its  nature  is  ready for use or consumption when advertised or offered
  for sale and can be held in stock.
    b. "merchandise" shall mean tangible  chattels  bought  for  personal,
  family or household purposes.
    c.  "shipment" shall mean the act whereby the seller physically places
  the merchandise into the possession of the United States postal  service
  or other carrier.
    d.  "telephone  order business" shall mean a mail order business which
  accepts orders by telephone, or a business which is primarily engaged in
  the solicitation of orders by advertisement or otherwise for merchandise
  or services connected with merchandise to be  shipped  to  the  customer
  through  the  mail  or  by  other carrier, upon receipt of an order with
  charge account authorization remitted by telephone and  the  merchandise
  by its nature is ready for use or consumption when advertised or offered
  for sale and can be held in stock.
    e.  "accepts  orders" shall mean, in the case of a mail order, receipt
  of an order with payment or with charge account  authorization  remitted
  through the mail, electronic mail or the Internet, and, in the case of a
  telephone  order,  receipt of an order with charge account authorization
  and debiting the buyer's account.
    3. No person, partnership, firm, association or corporation  or  agent
  or  employee  thereof  who conducts a mail-order business or a telephone
  order business shall:
    a. advertise for sale merchandise which is not reasonably  anticipated
  to be available for shipment within thirty days from date of publication
  or  broadcast  of  advertisement  or  from  date  catalog or circular is
  mailed, unless a longer period of  time  is  clearly  and  conspicuously
  stated in such advertisement. Whenever the term "thirty days" appears in
  this section, such term shall include a longer period of time if clearly
  and conspicuously stated in such advertisement.
    b.  accept  orders for merchandise which is not reasonably anticipated
  to be available for shipment within thirty days from the date of receipt
  of the order together with payment or with charge account  authorization
  in  the  case  of an order remitted through the mail, electronic mail or
  the Internet or within thirty days from the date the seller  debits  the
  buyer's account in the case of an order placed by telephone.
    c.  unless the seller qualifies and elects to be governed by paragraph
  i, fail to either ship ordered merchandise or issue a refund (if payment
  has been remitted) for ordered merchandise which is not available within
  thirty days of receipt of order and payment therefor.
    d.  unless  the  seller  qualifies  and  elects  to  be  governed   by
  paragragraph  i,  fail  to  either  ship  ordered merchandise or issue a
  credit (if charge-account authorization has been given and exercised  by
  seller)  for  ordered  merchandise  which is not available within thirty
  days of receipt of order and charge-account authorization therefor.
    e. fail to  issue  a  refund  or  credit  the  customer's  account  if
  promised,  upon  demand of the customer within thirty days from the date

  of receipt of request for such refund provided the merchandise has  been
  returned, if required.
    f.  fail  to  maintain  a record of each complaint alleging failure to
  ship  merchandise  or  furnish  services  connected   with   merchandise
  solicited  and  ordered  on a pre-paid basis and the disposition of each
  such complaint.  Such record shall be kept for  a  period  of  at  least
  eighteen months following the disposition of such complaint.
    g.  fail  to  maintain  records  showing the employment of systems and
  procedures designed to comply with requirements of this subdivision.
    h. fail to prominently feature in all advertising or other promotional
  materials containing a post office box address  including  order  blanks
  and  forms,  the  legal  name  of  the company soliciting the order, the
  complete street address of such company  and  under  what  conditions  a
  refund will be issued including but not limited to whether a refund will
  be issued:
    (i) at any time, or not beyond a point in time specified; or
    (ii)  in  cash,  or  as credit or in-house credit only. This paragraph
  shall not apply to a mail-order business that has a policy of  accepting
  returns,  for  a  period  of not less than twenty days after the date of
  delivery of merchandise to the customer and providing a cash refund  for
  a  cash  purchase  or  providing a cash refund or issuing a credit for a
  credit purchase, which credit is applied to the  account  on  which  the
  purchase  was  debited,  in connection with the return of its unused and
  undamaged merchandise. Provided, however, that nothing contained  herein
  shall  prohibit  a  mail-order business from applying a cash payment for
  returned merchandise towards  a  prior  outstanding  balance.  Provided,
  further, that nothing contained herein shall be deemed to require a cash
  refund  of  less  than one dollar where the mail-order business provides
  in-house credit for such sum.
    i. where the seller, due  to  circumstances  beyond  his  control,  is
  unable  to  make  shipment within the time required by this section, the
  provisions of paragraphs c and d of this subdivision shall not apply  if
  the  seller  elects  to be governed by this paragraph and does either of
  the following:
    (i) sends to the buyer a  notice  of  delayed  shipment,  stating  the
  duration of the expected delay, providing the buyer with the opportunity
  to  express his choice whether to cancel his order and receive a refund,
  be shipped the merchandise or be furnished the services by  a  specified
  later  date,  or  to  accept  substitute  merchandise  of  equivalent or
  superior quality. If the seller proposes to substitute  merchandise,  he
  shall  describe  it  in detail, indicating how it differs from the goods
  ordered. The notice shall be sent by first class mail and accompanied by
  a self-addressed, postage paid device upon which the buyer may  indicate
  his  choice,  and  mailed in advance of the expiration of the thirty day
  period, or that time  stated  in  the  solicitation.  The  notice  shall
  expressly  advise the buyer that the order will be immediately cancelled
  and a refund forwarded where the buyer  does  not  choose  otherwise  by
  response within thirty-five days of the date of mailing by the seller of
  the  above notice. If, prior to shipment, the seller receives a response
  from the buyer requesting refund, such refund shall be promptly made. If
  no response is received prior to the expiration of the  thirty-five  day
  period  after the date of the mailing by the seller of the above notice,
  the seller shall make a prompt refund.
    (ii)  send  the  customer  substitute  merchandise  of  equivalent  or
  superior  quality, if the customer is extended the opportunity to return
  the substituted merchandise and the seller promises  to  refund  to  the
  customer  the  postage  cost of returning such merchandise together with
  any portion of the purchase price previously paid by the customer. Prior

  to or at the time of shipment of the substitute  merchandise,  a  notice
  shall  be  provided to the customer stating the right to obtain a refund
  and reimbursement  for  the  postage  cost  incurred  in  returning  the
  substituted merchandise.
    For  purposes  of  subparagraphs  (i)  and  (ii)  of  this  paragraph,
  merchandise may not be considered of "equivalent or superior" quality if
  it is not substantially similar to the merchandise ordered, or  not  fit
  for  the  usual  purposes  for which such merchandise is used, or if the
  seller normally offers the substituted merchandise at a price lower than
  the price of the merchandise ordered.
    j. (i) in the case of an order for merchandise placed by telephone  or
  by  electronic  means, accept an additional fee for expedited mailing or
  shipping, which is in excess of  the  lowest  charge  the  seller  would
  accept,  in  the  regular course of business, for mailing or shipping of
  the merchandise ordered, when the seller does not reasonably expect such
  merchandise to be mailed or shipped within the next three business  days
  after the order was placed, unless:
    (A) the seller notifies the buyer, at the time the order is placed but
  before  payment  is  accepted,  that  the  seller  anticipates  that the
  merchandise will not actually be mailed or shipped within the next three
  business days after the order is placed; or
    (B) the seller contacts the  buyer,  by  telephone  or  by  electronic
  means, within the next three business days after the order was placed to
  inform the buyer:
    (a)  that  the  mailing  or shipping of the merchandise ordered is not
  reasonably anticipated to occur within  the  next  three  business  days
  after the order was placed;
    (b)  of  the  date  the  seller reasonably anticipates the merchandise
  ordered to be mailed or shipped;
    (c) that, at the buyer's option, the buyer may:
    (1) accept the reasonably anticipated delay in mailing or shipping; or
    (2) cancel the order and refund payment to  the  buyer  within  thirty
  days; or
    (3)  elect  to  have  the merchandise ordered mailed or shipped in the
  regular course of business and refund the additional fee  for  expedited
  mailing or shipping to the buyer within thirty days; and
    (d)  that,  if  the  seller  does  not  receive a response on the next
  business day, the seller will mail or ship the merchandise  ordered,  in
  the  manner  originally  requested by the buyer. Provided, however, that
  should the buyer contact the seller before the merchandise  ordered  has
  been  mailed  or  shipped, nothing in this section shall be construed to
  preclude the seller from agreeing to any modifications  to  the  buyer's
  order which are agreed to by both the buyer and seller.
    (ii)  (A)  For  the  purposes  of  this subdivision, a seller shall be
  considered to have mailed or shipped  a  buyer's  merchandise  when  the
  seller  causes such merchandise, and applicable postage or shipping fee,
  to be physically placed in the possession of the  United  States  Postal
  Service  or  other  carrier.  Nothing  in  this section shall impose any
  liability on the seller for delays solely  attributable  to  the  postal
  service or carrier.
    (B)  A  statement  or notice contained in the advertising material for
  the  merchandise,  in  a  description  of  the  merchandise,  or  in   a
  description  of the mailing and shipping options available to the buyer,
  which advises the buyer of the approximate time  the  seller  reasonably
  anticipates  the  merchandise to be mailed or shipped, shall satisfy the
  notification requirements of this section.
    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 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  section  eighty-three
  hundred  three, subdivision six of the civil practice law and rules, and
  direct restitution. In connection with any  such  proposed  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.