2014 New York Laws
GBS - General Business
Article 26 - (390 - 399-ZZZ) MISCELLANEOUS
391-L - Personal emergency response service agreements; required cancellation provisions.

NY Gen Bus L § 391-L (2014) What's This?

* 391-l. Personal emergency response service agreements; required cancellation provisions. 1. As used in this section, the term "personal emergency response service" shall mean (a) the provision and maintenance of electronic communication equipment in the home of an individual which signals a monitoring agency for help when activated by the individual, or after a period of time if a timer mechanism has not been reset; (b) the continuous monitoring of such signals by a trained operator and, in case of receipt of such signal, the immediate notification of such emergency response organizations or persons, if necessary, as the individual has previously specified.

2. (a) In addition to any right otherwise to revoke an offer, the purchaser or other person obligated for any part of the purchase price or price for service for obtaining a personal emergency response service may cancel the sale or purchase thereof with or without cause at any time until midnight of the seventh business day after the day on which the purchaser has signed an agreement or offer to purchase relating to such sale or purchase, without any penalty or obligation.

(b) In addition to the cancellation right created by paragraph (a) of this subdivision, the agreement providing for obtaining such service may be cancelled by the purchaser or other person obligated for any part of the purchase price or price for such service, upon thirty days prior written notice to the seller or supplier of such service, that the purchaser of such service has legally obligated himself or herself to commence residence in a nursing home or other health-related facility within such thirty-day period for what is expected to be a permanent stay or an extended stay of at least two months duration, or that residence therein with such expectation has already commenced.

3. (a) Cancellation under the terms of paragraph (a) of subdivision two of this section occurs when written notice of cancellation is given to the seller or provider of such service. Cancellation under the terms of such paragraph (a) shall be governed by the requirements of the "door-to-door sales protection act" contained in article ten-A of the personal property law, whether or not such sale is a "door-to-door sale" as defined therein, except where such requirements are inconsistent with the provisions of this section, in which case the provisions of this section shall prevail, and except that the transactional exclusions from the definition of "door-to-door sale" contained in paragraphs (a) through (f) of subdivision one of section four hundred twenty-six of the personal property law shall not apply to the sale or purchase of a personal emergency response service as defined herein.

(b) Cancellation under the terms of paragraph (b) of subdivision two of this section occurs upon the thirtieth day after written notice of cancellation is given to the seller or provider of such service. Upon the occurrence of cancellation under such paragraph (b), the purchaser or other person obligated for the purchaser shall remain obligated under such agreement to pay for the use of such service only for the period of time during which the service was provided prior to the occurrence of cancellation thereunder. For this purpose, under such paragraph (b) the price agreed to for the entire term of such agreement shall be prorated by multiplying such price by a fraction, the numerator of which is the period of time during which such service was provided prior to the occurrence of cancellation, and the denominator of which is the entire term of such agreement. Any overpayment made in advance for the provision of such service, the amount of which is determined by such proration shall be refunded to the purchaser or other person obligated for the purchaser, as the case may be, within ten business days from the date of the occurrence of cancellation under such paragraph (b). Such cancellation shall be without penalty to or other obligation on the part of, the purchaser or other person obligated for the purchaser.

(c) Written notice of cancellation, if given by first-class mail, shall be deemed given when deposited in a mailbox properly addressed and adequate postage prepaid. Such written notice under the terms of paragraph (a) of subdivision two of this section shall be effective irrespective of the form of such written notice if it indicates the intention of the purchaser or other person obligated not to be bound. Written notice of cancellation under the terms of paragraph (b) of subdivision two of this section, to be effective irrespective of the form of such written notice shall, in addition to indicating an intention not to be bound, state the date of expected commencement or commencement of residence in such nursing home or other health-related facility, the expected duration of such residence, and the name and address of such home or facility, and include with such notice a signed note from such person's physician or from the home or facility, or a copy of such person's agreement with such home or other facility, verifying that the terms of such paragraph (b) for cancellation have been satisfied.

4. In a sale or purchase of a personal emergency response service, the seller shall furnish to the purchaser:

(a) a fully completed receipt or copy of any agreement pertaining to such sale at the time of its execution, which is in the same language, e.g. Spanish, as that principally used in any oral sales presentation and which shows the date of the transaction and contains the name and address of the seller, and in immediate proximity to the space reserved in the contract for the signature of the purchaser or on the front page of the receipt if an agreement is not used and in not less than ten-point boldface type, statements in substantially the following form:

"I. YOU, THE PURCHASER, MAY CANCEL THIS TRANSACTION WITH OR WITHOUT CAUSE AT ANY TIME PRIOR TO MIDNIGHT OF THE SEVENTH BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION."

"II. ON AND AFTER MIDNIGHT OF SUCH SEVENTH DAY, YOU, THE PURCHASER, MAY CANCEL YOUR AGREEMENT WITH THE SELLER FOR YOU TO RECEIVE PERSONAL EMERGENCY RESPONSE SERVICE MORE THAN 30 DAYS AFTER YOUR NOTIFYING THE SELLER IN WRITING OF YOUR CANCELLING SUCH AGREEMENT, PROVIDED THAT YOU HAVE LEGALLY OBLIGATED YOURSELF TO BEGIN LIVING IN A NURSING HOME OR OTHER HEALTH-RELATED FACILITY WITHIN SUCH 30-DAY PERIOD FOR WHAT IS EXPECTED TO BE A PERMANENT STAY OR AN EXTENDED STAY FOR AT LEAST 2 MONTHS, OR THAT YOU HAVE ALREADY BEGUN LIVING THEREIN EXPECTING YOUR STAY TO BE PERMANENT OR FOR AT LEAST 2 MONTHS, AND PROVIDED THAT THESE FACTS ARE VERIFIED BY YOUR DOCTOR OR BY THE NURSING HOME OR OTHER HEALTH-RELATED FACILITY."

"SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THESE RIGHTS."

(b) at the time the purchaser signs the contract to obtain the personal emergency response service or otherwise agrees to purchase such service from the seller, a completed form in duplicate, captioned "NOTICE OF CANCELLATION", which shall be attached to the contract or receipt and easily detachable, and which shall contain in not less than ten-point boldface type the following information and statements in the same language, e.g. Spanish, as that used in the contract:

NOTICE OF CANCELLATION

_______________________________________________

(enter date of transaction here)

I. YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN SEVEN (7) BUSINESS DAYS FROM THE ABOVE DATE.

IF YOU CANCEL UNDER THIS FIRST RIGHT TO CANCEL, ANY PROPERTY TRADED IN, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND ANY NEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN (10) BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION NOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE CANCELLED.

II. IN ADDITION TO THE ABOVE RIGHT TO CANCEL THE TRANSACTION, YOU OR ANOTHER PERSON OBLIGATED FOR ANY PART OF THE PURCHASE PRICE OR PRICE FOR SUCH SERVICE MAY ALSO CANCEL YOUR AGREEMENT WITH THE SELLER PROVIDING FOR YOUR OBTAINING OF SUCH SERVICE EFFECTIVE UPON THE 30TH DAY AFTER GIVING WRITTEN NOTICE TO SUCH SELLER OR SUPPLIER OF THE SERVICE, THAT YOU HAVE LEGALLY OBLIGATED YOURSELF TO COMMENCE RESIDENCE IN A NURSING HOME OR OTHER HEALTH-RELATED FACILITY WITHIN THE NEXT 30 DAYS FOR WHAT IS EXPECTED TO BE A PERMANENT STAY OR AN EXTENDED STAY OF AT LEAST 2 MONTHS DURATION, OR THAT YOUR RESIDENCE THEREIN WITH SUCH EXPECTATION HAS ALREADY COMMENCED.

YOU MAY DO SO PROVIDED THAT IN SUCH WRITTEN NOTICE OF CANCELLATION YOU INDICATE AN INTENTION NOT TO BE BOUND, STATE THE DATE OF EXPECTED COMMENCEMENT OR DATE OF ACTUAL COMMENCEMENT OF RESIDENCE IN SUCH NURSING HOME OR OTHER HEALTH-RELATED FACILITY, THE EXPECTED DURATION OF SUCH RESIDENCE, AND THE NAME AND ADDRESS OF SUCH HOME OR FACILITY, AND PROVIDED THAT YOU INCLUDE WITH YOUR NOTICE OF CANCELLATION A SIGNED NOTE FROM YOUR PHYSICIAN OR FROM SUCH HOME OR FACILITY, OR A COPY OF YOUR AGREEMENT WITH SUCH HOME OR OTHER FACILITY, VERIFYING THAT YOU HAVE SATISFIED THE TERMS DESCRIBED HEREIN FOR CANCELLATION. IF YOU HAVE SATISFIED THESE CONDITIONS, CANCELLATION UNDER THIS SECOND RIGHT OF CANCELLATION WILL BE EFFECTIVE ON THE 30TH DAY AFTER SUCH WRITTEN NOTICE IS GIVEN BY FIRST-CLASS MAIL ADEQUATE POSTAGE PREPAID AND PROPERLY ADDRESSED TO THE SELLER.

TO CANCEL YOUR AGREEMENT UNDER THIS SECOND RIGHT TO CANCEL, SEND THE ABOVE-DESCRIBED WRITTEN NOTICE TOGETHER WITH ALL REQUIRED SUPPORTING INFORMATION BY FIRST-CLASS MAIL ADEQUATE POSTAGE PREPAID TO THE NAME AND ADDRESS OF SELLER STATED BELOW.

IF YOU CANCEL, WHETHER UNDER THE FIRST OR UNDER THE SECOND RIGHT TO CANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER, IN SUBSTANTIALLY AS GOOD CONDITION AS WHEN RECEIVED, ANY DEVICE DELIVERED TO YOU UNDER THIS CONTRACT OR SALE AND NEEDED TO RECEIVE SUCH PERSONAL EMERGENCY RESPONSE SERVICE; OR YOU MAY IF YOU WISH, COMPLY WITH THE INSTRUCTIONS OF THE SELLER REGARDING THE RETURN SHIPMENT OF THE DEVICE AT THE SELLER'S EXPENSE AND RISK.

IF YOU FAIL TO MAKE THE DEVICE AVAILABLE TO THE SELLER, OR IF YOU AGREE TO RETURN THE DEVICE TO THE SELLER AND FAIL TO DO SO, THEN YOU REMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.

TO CANCEL THIS TRANSACTION UNDER YOUR FIRST RIGHT OF CANCELLATION STATED FIRST ABOVE, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS CANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE, OR SEND A TELEGRAM, TO: ___________________________ AT _________________________________________ (Name of Seller) (Address of Seller's Place of Business)

NOT LATER THAN MIDNIGHT OF

_________________

(Date) I HEREBY CANCEL THIS TRANSACTION. ______________________ ______________________________ (Date) (Purchaser's Signature) and the seller shall complete both copies by entering the name of the seller, the address of the seller's place of business, the date of the transaction, and the date, not earlier than the seventh business day following the date of the transaction, by which the purchaser may give notice of cancellation under the first right of cancellation.

5. In a sale of a personal emergency response service, the seller shall inform each purchaser orally, at the time he or she signs the contract or purchases the service, of his or her two statutory rights to cancel. Until the seller has informed the purchaser of his two rights to cancel granted by law, the purchaser or any other person obligated for any part of the purchase price or price for service may cancel the sale by notifying the seller in any manner and by any means of his intention to cancel under the first right of cancellation. The seven-day period during which cancellation may be made under the first right of cancellation shall begin to run only from the time the seller complies with this requirement.

6. A personal emergency response service sales contract or receipt shall not include any confession of judgment or any waiver of any of the rights to which the buyer is entitled under this section including specifically his or her right to cancel the transaction or agreement in accordance with the provisions of this section.

7. A personal emergency response service sales agreement or receipt shall disclose conspicuously the seller's refund policy as to the lease, purchase or use of any device which is subject to the service sales agreement. If the seller fails to disclose conspicuously the applicable refund policy in such agreement or receipt, then the seller shall be liable to the purchaser for a cash refund of the total price or a credit of the total price, at the purchaser's option, paid by the purchaser or charged by the seller for the lease, purchase or use of such device, provided that within twenty days from the date of delivery of the device, the purchaser makes a demand therefor and provided that the device is in substantially as good condition as when received by the purchaser of the service. In no event shall this subdivision be deemed to supersede a refund policy of a seller which allows return of the device more than twenty days after the date of delivery of the device to the purchaser of the service. If the seller fails to disclose conspicuously the applicable refund policy in such agreement or receipt, then the amount paid by the purchaser to the seller for the lease, purchase or use of the device shall be refunded or credited, as the case may be, within ten business days from the date of return of the seller's device in substantially as good condition as when received by the purchaser of the service.

8. This section does not relieve any person, firm, corporation or association subject to the provisions of this section from complying with any other applicable law, ordinance, rule or regulation relating to refund policies which affords the purchaser greater protection than do the provisions of this section.

* NB There are 2 391-l's


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