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This entry was published on 2014-09-22
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SECTION 396-U
Merchandise delivery
General Business (GBS) CHAPTER 20, ARTICLE 26
§ 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.