2014 New York Laws
GBS - General Business
Article 26 - (390 - 399-ZZZ) MISCELLANEOUS
396-U - Merchandise delivery.
396-u. Merchandise delivery. 1. Definitions. As used in this section:
a. "Consumer" means a person who enters into a contract with a dealer for the purchase or lease of furniture or a major household appliance.
b. "Person" means any individual, firm, partnership, corporation, association or other legal entity.
c. "Furniture" means any article used to furnish a house, apartment or place of business or accommodation, as distinguished from permanent fixtures or adjuncts, including but not limited to chairs, tables, cabinets, sofas, carpets, rugs, curtains, bedsteads and chests; provided, that such term shall not mean any article which is in substantial part custom-made or custom finished.
d. "Major household appliance" means air conditioners, audio or stereo equipment, washing machines for clothes, clothes dryers, dishwashers, food freezers, refrigerators, stoves, ranges, ovens, sewing machines, television sets, tape and video recorders or any other consumer durable goods generally intended for household use having a purchase price in excess of two hundred dollars.
e. "Furniture dealer", "major household appliance dealer" or "dealer" means any person who engages in the business of selling or leasing furniture or major household appliances or both.
2. It shall be an unlawful practice for a furniture or major household appliance dealer to:
a. Fail to disclose an estimated delivery date, or an estimated range of delivery dates, conspicuously and in writing on the consumer's copy of the contract entered into for the sale or lease of furniture or major household appliance, at the time an order for such merchandise is taken;
b. Fail to deliver the furniture or major household appliance by the latest date stated for delivery, unless the affected consumer is notified:
(1) of the delay and the revised anticipated delivery date or range of delivery dates; and
(2) of the fact that, upon the expiration of the latest date stated for delivery in the original contract, such consumer shall have the option of:
(a) canceling the contract and receiving full refund; or
(b) canceling the contract and receiving a credit from the dealer in an amount equal to any deposit made by the consumer; or
(c) negotiating a new delivery date or range of delivery dates with the dealer which date or range of dates shall thereafter be the latest date stated for delivery in the contract for purposes of this subdivision; or
(d) modifying the contract by making a new selection of furniture or major household appliance;
c. In the event that the furniture or major household appliance has not been delivered by the latest date stated for delivery in the original contract, to fail to honor a consumer's election from among the options described in subparagraph two of paragraph b of this subdivision;
d. In the event that a consumer elects to cancel the contract and receive a refund, to fail to make a refund within two weeks of receiving a demand for such refund.
3. Notwithstanding any other provisions of this section, where a delay in delivery as determined from the original contract is caused by a strike or by an act of God, the applicable delivery date shall be extended by an amount of time equal to the duration of the strike or condition giving rise to the delay or thirty days, whichever is less.
4. Where a failure to deliver, or delay in delivery beyond the latest day promised or stated for delivery, is caused solely by a consumer, such failure or delay shall not constitute an unlawful practice under this section.
5. Nothing herein contained shall be construed to be a waiver or limitation of any right of a consumer elsewhere provided by law, and nothing herein shall preempt any local statute or regulation or supersede any contract which is consistent with this section or which provides greater protection to the consumer.
6. This section shall not apply to mail order merchandise.
7. A consumer injured by a violation of this section may bring an action to recover damages. Judgment may be entered for three times the actual damages suffered by a consumer or one hundred dollars, whichever is greater provided, however, that treble damages may not be assessed against a dealer who shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid such error. A court also may award reasonable attorney's fees to a prevailing plaintiff consumer.
8. Upon any violation of this section, an application may be made by the attorney general in the name of the people of the state 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 the violation. If it shall appear to the satisfaction of the court or justice that the defendant has violated this section, an injunction may be issued by the 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. In connection with an application made under this subdivision, the attorney general is authorized to take proof and to make a determination of the relevant facts and to issue subpoenas in accordance with the civil practice law and rules.
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