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This entry was published on 2014-09-22
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SECTION 396-Y
Sale of certain personal property; incentives; disclosure of value
General Business (GBS) CHAPTER 20, ARTICLE 26
§ 396-y. Sale of certain personal property; incentives; disclosure of
value. 1. Definitions. a. The term "consumer" shall mean a natural
person residing in this state.

b. The term "consumer goods" shall mean any item of personal property,
merchandise or services, having a value of five hundred dollars or more,
sold or offered for sale to a consumer, the intended use of which is
personal, family or general household, not intended for immediate
resale.

c. The term "incentive" shall mean the free offering of any gift,
bonus or other inducement to purchase such consumer goods which gift,
bonus or inducement shall be in the nature of intangible personal
property.

2. Prohibition. No person, firm, corporation, association or agent or
employee thereof shall provide an incentive in the sale or offering for
sale of consumer goods, both such terms as defined herein, without a
complete, detailed and accurate written disclosure of the actual present
liquidated retail value of such incentive at the time or date of sale of
the subject consumer goods and whether any tax obligations may be
incurred by the consumer as a result of owning the incentive.

3. Enforcement. a. A consumer who has suffered a loss due to a
violation of this section by a merchant is entitled to recover from the
merchant actual damages. In addition, the court may award the consumer
reasonable attorneys fees and court costs.

b. A violation of this section is a deceptive trade practice under
section three hundred forty-nine of this chapter.

c. 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 by a special
proceeding 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 the court or justice, enjoining and
restraining any further violations, 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. Whenever the court shall determine that a violation of this
section has occurred, the court may impose a civil penalty of not more
than five hundred dollars for each violation. 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.

d. Nothing in this section shall be construed so as to nullify or
impair any right or rights which a consumer may have against a merchant
at common law, by statute, or otherwise, nor to impair the ability of
the attorney general to institute investigations and proceedings, where
appropriate, as provided in article twenty-three-A of this chapter, nor
to eliminate the requirements that may be imposed upon a merchant under
such article.

e. An action shall not be brought under this section more than six
years after the occurrence of the act, method or practice which is the
subject of the action or more than one year after the last payment in a
transaction involving the method, act or practice which is the subject
of the action, whichever is later.

f. Any covenant, promise, agreement or understanding in, or in
connection with or collateral to a sale or offering for sale of consumer
goods, subject to the provisions of this section, purporting to
acknowledge that a gift, bonus or other inducement received by a
consumer in connection with a sale or offering for sale of consumer
goods was not an incentive as defined herein, or otherwise purporting to
directly or indirectly waive the provisions of this section, is against
public policy and is void and unenforceable.