senate Bill S7373A

2011-2012 Legislative Session

Prohibits the unsolicited sale of memorials and monuments

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jun 21, 2012 committed to rules
Jun 14, 2012 amended on third reading 7373a
Jun 04, 2012 advanced to third reading
May 31, 2012 2nd report cal.
May 30, 2012 1st report cal.930
May 02, 2012 referred to consumer protection

Bill Amendments

Original
A (Active)
Original
A (Active)

S7373 - Bill Details

See Assembly Version of this Bill:
A10375A
Current Committee:
Law Section:
General Business Law
Laws Affected:
Amd §454, add §454-a, Gen Bus L
Versions Introduced in 2011-2012 Legislative Session:
A10375A

S7373 - Bill Texts

view summary

Prohibits the unsolicited sale of memorials and monuments unless such offer has first been solicited by the individual to which it is sent; provides an exception where such an offer is permissible where, in large, bold-face type at the top of such offer, "SOLICITATION" is clearly printed; imposes civil penalties for violations thereof.

view sponsor memo
BILL NUMBER:S7373

TITLE OF BILL:
An act
to amend the general business law, in relation to the sale of
monuments and memorials

PURPOSE:
This bill is meant to ensure that unsolicited offers for monuments and
memorials are clearly marked as solicitations and that the offer
contains all pertinent details with regard to the monument or
memorial being offered.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends section 454 of the General Business Law
(GBL) to require that a contract for a memorial or monument include a
certificate of quality

Section 2 of the bill creates a new section 454-a of the GBL
(Unsolicited offers for monuments or memorials) which requires that
unsolicited offers be clearly labeled as solicitations and that the
offer includes all pertinent details with regard to the monument or
memorial; additionally, the attorney general is authorized to take
action to enforce these provisions.

EXISTING LAW:
Section 454 of the GBL requires information such as dimensions,
wording, layout, total price, etc. be included in a contract for a
monument or memorial; there is no such analogous requirement for
offers for monuments or memorials.

JUSTIFICATION:
The purpose of this bill is to assure that the families of the
recently deceased are able to recognize the nature and details of the
sometimes numerous offers for monuments or memorials which arrive
unsolicited after a death. This bill would require virtually the same
information be included within such an offer as is required currently
for a completed contract. Additionally, the
fact that the offer is a solicitation would be required to be
conspicuously noted. These simple requirements will provide families
with all the information necessary to recognize the nature of and to
assess the value of offers of this type.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
Immediate.

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7373

                            I N  S E N A T E

                               May 2, 2012
                               ___________

Introduced by Sen. FUSCHILLO -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN  ACT  to  amend  the general business law, in relation to the sale of
  monuments and memorials

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 2 of section 454 of the general business law,
as amended by chapter 390 of the laws of 2007, is  amended  to  read  as
follows:
  2.  Each  sale  of  a  memorial  shall  only be evidenced by a written
contract which shall be signed by all the parties to the contract, which
shall be dated, and which shall be completely separate and  may  not  be
included  in  any other contract, agreement, purchase order, price list,
itemization of funeral services and merchandise selected or  like  docu-
ment reflecting the purchase by a consumer of any other real or personal
property  or service related to the burial, cremation, or other disposi-
tion of the remains of a deceased person. For purposes of this  section,
the pourer of a foundation shall not be considered the seller of a foun-
dation.  Such  separate  contract shall be prepared, completed and main-
tained in accordance with this section for every memorial sale,  includ-
ing  a  foundation  therefor, and shall be the only contractual document
prepared in connection with such sale. Provided however in the  case  of
the  sale  of  a monument or memorial made at the same time as a preneed
sale of funeral goods or services, a one page document  summarizing  the
transaction  shall  be  given to the consumer in addition to, but not in
lieu of, the separate contract required by this section.    A  full  and
complete  copy  of  such  contract shall be given to the consumer by the
seller at the time of purchase of such memorial, and shall  be  retained
by  the  seller  for  a  period of at least three years from the date of
sale. Said contract shall contain at least the following:
  (a) the name, address and telephone number of the seller of the  memo-
rial;
  (b) the name, address and telephone number of the consumer;

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15372-01-2

S. 7373                             2

  (c)  the full name of the individual to be memorialized and, if known,
the date of such individual's death;
  (d)  a  full description of the memorial, including the material to be
provided, the dimensions of the finished memorial, a sketch  or  drawing
of the proposed memorial, the wording of any inscription on such memori-
al  including  the approximate layout thereof, [and] the method of SAND-
BLASTING OR engraving of such inscription, AND A CERTIFICATE OF QUALITY,
DETAILING COUNTRY OR STATE OF ORIGIN;
  (e)  the  approximate  date  when  the  memorial  is  expected  to  be
completed;
  (f)  the  name  of the cemetery in which the memorial is to be placed,
together with the location of the plot or grave, if known, AND THE  NAME
OF THE OWNER OF THE PLOT; and
  (g) a full disclosure of each of the following: the price of the memo-
rial;  applicable sales tax, if any; the charge made by the cemetery for
the foundation; any charges for  additional  work,  provided  that  such
additional  work  is  clearly described in the contract and such charges
are itemized; the total  price  as  contracted;  and  the  schedule  for
payment, if any.
  S 2. The general business law is amended by adding a new section 454-a
to read as follows:
  S  454-A.  UNSOLICITED  OFFERS  FOR  MONUMENTS OR MEMORIALS. 1. (A) IT
SHALL BE UNLAWFUL TO PROVIDE ANY OFFER FOR MONUMENTS OR MEMORIALS UNLESS
SUCH OFFER HAS FIRST BEEN SOLICITED BY THE INDIVIDUAL  TO  WHICH  IT  IS
SENT.  (B)  PROVIDED,  HOWEVER,  SUCH  AN OFFER IS PERMISSIBLE WHERE, IN
LARGE, BOLD-FACE TYPE AT THE TOP OF SUCH OFFER, "SOLICITATION" IS CLEAR-
LY PRINTED.
  2. AN OFFER PROVIDED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION  ONE  OF
THIS SECTION SHALL ADDITIONALLY PROVIDE: A FULL DESCRIPTION OF THE MEMO-
RIAL,  INCLUDING  THE  MATERIAL  TO  BE  PROVIDED, THE DIMENSIONS OF THE
FINISHED MEMORIAL, A SKETCH OR DRAWING OF  THE  PROPOSED  MEMORIAL,  THE
WORDING  OF  ANY  INSCRIPTION ON SUCH MEMORIAL INCLUDING THE APPROXIMATE
LAYOUT THEREOF, THE METHOD OF  ENGRAVING  OF  SUCH  INSCRIPTION,  AND  A
CERTIFICATE  OF QUALITY DETAILING COUNTRY OR STATE OF ORIGIN, AS WELL AS
A FULL DISCLOSURE OF EACH OF THE FOLLOWING: THE PRICE OF  THE  MEMORIAL;
APPLICABLE  SALES  TAX,  IF ANY; THE CHARGE MADE BY THE CEMETERY FOR THE
FOUNDATION; ANY CHARGES FOR ADDITIONAL WORK, PROVIDED  THAT  SUCH  ADDI-
TIONAL WORK IS CLEARLY DESCRIBED IN THE OFFER AND SUCH CHARGES ARE ITEM-
IZED; THE TOTAL PRICE AS OFFERED; AND THE SCHEDULE FOR PAYMENT, IF ANY.
  3.  WHENEVER  THERE  SHALL  BE  A  VIOLATION OF THE PROVISIONS 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  THE
VIOLATION.  IF  IT  SHALL APPEAR TO THE SATISFACTION OF THE COURT OR THE
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 EIGHT THOUSAND THREE  HUNDRED  THREE  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.  WHENEVER
THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED,

S. 7373                             3

THE COURT MAY IMPOSE A CIVIL PENALTY OF UP TO FIVE HUNDRED  DOLLARS  FOR
THE  FIRST  VIOLATION  AND  UP TO ONE THOUSAND DOLLARS FOR THE SECOND OR
SUBSEQUENT VIOLATION WITHIN AN EIGHTEEN MONTH PERIOD.
  S 3. This act shall take effect immediately.

S7373A (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A10375A
Current Committee:
Law Section:
General Business Law
Laws Affected:
Amd §454, add §454-a, Gen Bus L
Versions Introduced in 2011-2012 Legislative Session:
A10375A

S7373A (ACTIVE) - Bill Texts

view summary

Prohibits the unsolicited sale of memorials and monuments unless such offer has first been solicited by the individual to which it is sent; provides an exception where such an offer is permissible where, in large, bold-face type at the top of such offer, "SOLICITATION" is clearly printed; imposes civil penalties for violations thereof.

view sponsor memo
BILL NUMBER:S7373A

TITLE OF BILL:
An act
to amend the general business law, in relation to the sale of
monuments and memorials

PURPOSE:
This bill is meant to ensure that unsolicited offers for monuments and
memorials are clearly marked as solicitations and that the offer
contain all pertinent details with regard to the monument or memorial
being offered.

SUMMARY OF PROVISIONS:
Section 1 of the bill amends section 454 of the General Business Law
(GBL) to require that a contract for a memorial or monument include a
certificate of quality

Section 2 of the bill creates a new section 454-a of the GBL
(Unsolicited offers for monuments or memorials) which requires that
unsolicited offers be clearly labeled as solicitations and that the
offer includes all pertinent details with regard to the monument or
memorial; additionally, the attorney general is authorized to take
action to enforce these provisions.

EXISTING LAW:
Section 454 of the GBL requires information such as dimensions,
wording, layout, total price, etc. be included in a contract for a
monument or memorial; there is no such analogous requirement for
offers for monuments or memorials

JUSTIFICATION:
The purpose of this bill is to assure that the families of the recently
deceased are able to recognize the nature and details of the
sometimes numerous offers for monuments or memorials which arrive
unsolicited after a death. This bill would require virtually the same
information be included within such an offer as is required currently
for a completed contract. Additionally, the
fact that the offer is a solicitation would be required to be
conspicuously noted. These simple requirements will provide families
with all the information necessary to recognize the nature of and to
assess the value of offers of this type.

LEGISLATIVE HISTORY:
New bill.

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the ninetieth day after becoming law.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 7373--A
    Cal. No. 930

                            I N  S E N A T E

                               May 2, 2012
                               ___________

Introduced by Sen. FUSCHILLO -- read twice and ordered printed, and when
  printed  to  be  committed  to the Committee on Consumer Protection --
  reported favorably from said committee, ordered to  first  and  second
  report,  ordered  to  a  third reading, amended and ordered reprinted,
  retaining its place in the order of third reading

AN ACT to amend the general business law, in relation  to  the  sale  of
  monuments and memorials

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Subdivision 2 of section 454 of the general  business  law,
as  amended  by  chapter  390 of the laws of 2007, is amended to read as
follows:
  2. Each sale of a memorial  shall  only  be  evidenced  by  a  written
contract which shall be signed by all the parties to the contract, which
shall  be  dated,  and which shall be completely separate and may not be
included in any other contract, agreement, purchase order,  price  list,
itemization  of  funeral services and merchandise selected or like docu-
ment reflecting the purchase by a consumer of any other real or personal
property or service related to the burial, cremation, or other  disposi-
tion  of the remains of a deceased person. For purposes of this section,
the pourer of a foundation shall not be considered the seller of a foun-
dation. Such separate contract shall be prepared,  completed  and  main-
tained  in accordance with this section for every memorial sale, includ-
ing a foundation therefor, and shall be the  only  contractual  document
prepared  in  connection with such sale. Provided however in the case of
the sale of a monument or memorial made at the same time  as  a  preneed
sale  of  funeral goods or services, a one page document summarizing the
transaction shall be given to the consumer in addition to,  but  not  in
lieu  of,  the  separate  contract required by this section.  A full and
complete copy of such contract shall be given to  the  consumer  by  the
seller  at  the time of purchase of such memorial, and shall be retained
by the seller for a period of at least three  years  from  the  date  of
sale. Said contract shall contain at least the following:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD15372-05-2

S. 7373--A                          2

  (a)  the name, address and telephone number of the seller of the memo-
rial;
  (b) the name, address and telephone number of the consumer;
  (c)  the full name of the individual to be memorialized and, if known,
the date of such individual's death;
  (d) a full description of the memorial, including the material  to  be
provided,  the  dimensions of the finished memorial, a sketch or drawing
of the proposed memorial, the wording of any inscription on such memori-
al including the approximate layout thereof, [and] the method  of  SAND-
BLASTING OR engraving of such inscription, AND A CERTIFICATE OF QUALITY,
DETAILING COUNTRY OR STATE OF ORIGIN;
  (e)  the  approximate  date  when  the  memorial  is  expected  to  be
completed;
  (f) the name of the cemetery in which the memorial is  to  be  placed,
together  with the location of the plot or grave, if known, AND THE NAME
OF THE OWNER OF THE PLOT; and
  (g) a full disclosure of each of the following: the price of the memo-
rial; applicable sales tax, if any; the charge made by the cemetery  for
the  foundation;  any  charges  for  additional work, provided that such
additional work is clearly described in the contract  and  such  charges
are  itemized;  the  total  price  as  contracted;  and the schedule for
payment, if any.
  S 2. The general business law is amended by adding a new section 454-a
to read as follows:
  S 454-A. UNSOLICITED OFFERS FOR MONUMENTS OR MEMORIALS. 1. (A)  EXCEPT
AS  PROVIDED  IN PARAGRAPH (B) OF THIS SUBDIVISION, IT SHALL BE UNLAWFUL
TO PROVIDE ANY OFFER FOR MONUMENTS OR MEMORIALS UNLESS  SUCH  OFFER  HAS
FIRST BEEN SOLICITED BY THE INDIVIDUAL TO WHICH IT IS SENT.
  (B)  PROVIDED,  HOWEVER, SUCH AN OFFER IS PERMISSIBLE WHERE, IN LARGE,
BOLD-FACE TYPE AT THE TOP  OF  SUCH  OFFER,  "SOLICITATION"  IS  CLEARLY
PRINTED.
  2.  AN  OFFER PROVIDED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF
THIS SECTION WHICH OFFERS FOR SALE A SPECIFIC MONUMENT  OR  MEMORIAL  OR
CHOICE  OF SPECIFIC MONUMENTS OR MEMORIALS SHALL ADDITIONALLY PROVIDE: A
FULL DESCRIPTION OF THE MONUMENT OR MEMORIAL, INCLUDING THE MATERIAL  TO
BE  PROVIDED,  THE  DIMENSIONS  OF  THE FINISHED MONUMENT OR MEMORIAL, A
SKETCH OR DRAWING OF THE PROPOSED MONUMENT OR MEMORIAL,  THE  METHOD  OF
SAND  BLASTING  OR  ENGRAVING  OF  ANY INSCRIPTION, AND A CERTIFICATE OF
QUALITY DETAILING COUNTRY OR STATE OF ORIGIN, AS WELL AS A FULL  DISCLO-
SURE  OF EACH OF THE FOLLOWING: THE TOTAL PRICE OF THE MONUMENT OR MEMO-
RIAL AS OFFERED; APPLICABLE SALES TAX AS OFFERED,  IF  ANY;  THE  CHARGE
MADE  BY  THE  CEMETERY FOR THE FOUNDATION IF THE CEMETERY IS KNOWN; ANY
CHARGES FOR ADDITIONAL WORK,  PROVIDED  THAT  SUCH  ADDITIONAL  WORK  IS
CLEARLY  DESCRIBED  IN  THE OFFER AND SUCH CHARGES ARE ITEMIZED; AND THE
SCHEDULE FOR PAYMENT, IF ANY.
  3. WHENEVER THERE SHALL BE A  VIOLATION  OF  THE  PROVISIONS  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 THE
VIOLATION. IF IT SHALL APPEAR TO THE SATISFACTION OF THE  COURT  OR  THE
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

S. 7373--A                          3

SUBDIVISION  (A)  OF  SECTION  EIGHT THOUSAND THREE HUNDRED THREE 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.  WHENEVER
THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS SECTION HAS OCCURRED,
THE COURT MAY IMPOSE A CIVIL PENALTY OF UP TO FIVE HUNDRED  DOLLARS  FOR
THE  FIRST  VIOLATION  AND  UP TO ONE THOUSAND DOLLARS FOR THE SECOND OR
SUBSEQUENT VIOLATION WITHIN AN EIGHTEEN MONTH PERIOD.
  4. THE PROVISIONS OF THIS SECTION SHALL NOT BE CONSTRUED TO APPLY TO A
SOLICITED OFFER FOR SALE MADE BY ANY FIRM, CORPORATION OR  OTHER  ENTITY
OWNED  BY AN INDIVIDUAL LICENSED OR REGISTERED UNDER ARTICLE THIRTY-FOUR
OF THE PUBLIC HEALTH LAW AS PART OF A FUNERAL PREARRANGEMENT OR AS  PART
OF  A  PRENEED  CONTRACT PURSUANT TO SECTION FOUR HUNDRED FIFTY-THREE OF
THIS ARTICLE.
  5. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO  CEMETERY  CORPO-
RATIONS  AS DEFINED AND REGULATED BY ARTICLE FIFTEEN OF THE NOT-FOR-PRO-
FIT CORPORATION LAW AND THE REGULATIONS PROMULGATED THEREUNDER.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.

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