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This entry was published on 2018-08-31
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SECTION 399-W
Total loss notice and waiver of the gap amount for non-motor vehicle retail lease agreements
General Business (GBS) CHAPTER 20, ARTICLE 26
* § 399-w. Total loss notice and waiver of the gap amount for
non-motor vehicle retail lease agreements. 1. If a non-motor vehicle
retail lease agreement provides that the lessee shall be responsible
upon a total loss of the goods which are the subject of the agreement
occasioned by theft, confiscation or physical damage for the gap amount,
the lessor, prior to the execution of the agreement, shall by a notice
on a separate document conspicuously disclose that fact and the
obligations for which the lessee would remain liable in the event of a
theft, confiscation or total loss of the goods. If the lessor is
required under subdivision two of this section to offer to waive its
contractual right to hold the lessee liable for the gap amount in the
event of a total loss of the goods occasioned by theft or physical
damage, the notice shall also: (a) state that for a separate charge
disclosed in the notice the lessor will waive its contractual right to
hold the lessee liable for the gap amount in the event of a total loss
of the goods occasioned by theft or physical damage; (b) contain a
provision informing the lessee that he or she may as an alternative to
purchasing a waiver, be able to purchase insurance covering the gap
amount from an insurance company which has been licensed by the
superintendent of financial services to write non-motor vehicle lessee
gap insurance in this state; and (c) contain a provision permitting the
lessee to indicate whether he or she wants the lessor to waive its
contractual right to hold the lessee liable for the gap amount in the
event of a total loss of the goods occasioned by theft or physical
damage. The notice shall be signed by the lessee. The lessor or assignee
shall provide a copy of the signed notice to the lessee, and shall
maintain a copy in the lessor's or assignee's files for at least the
term of the lease. Failure to provide the notice and to obtain the
lessee's signature as required by this subdivision shall invalidate any
provision of the agreement which otherwise would obligate a lessee to
pay the gap amount to the lessor or lessor's assignee, after a total
loss of the goods occasioned by theft, confiscation or physical damage.
No retail lease agreement shall be conditioned upon the lessee's
obtaining of non-motor vehicle lessee gap insurance as set forth in
subparagraph (D) of paragraph twenty-six of subsection (a) of section
one thousand one hundred thirteen of the insurance law.

2. If the retail lease agreement provides that the lessee shall be
responsible upon a total loss of the goods occasioned by theft or
physical damage for the gap amount, the lessor, prior to the execution
of the agreement, shall offer to waive its contractual right to hold the
lessee liable for the gap amount in the event of a total loss of the
goods occasioned by theft or physical damage, only if non-motor vehicle
lessor gap insurance coverage is available to the lessor or the
anticipated assignee and such coverage is obtained from a
property/casualty insurance company, which has been licensed by the
superintendent of financial services of this state to write non-motor
vehicle lessor gap insurance in this state. This offer may be made
contingent upon the payment by the lessee of a separate charge that
shall not exceed the cost of lessor gap insurance covering the retail
lease transaction plus an administrative fee not to exceed ten dollars.
Nothing contained in this section shall be construed to authorize a
waiver, in connection with a transaction with respect to which lessor
gap insurance has not been obtained, of a contractual right to hold the
lessee liable for the gap amount in the event of a total loss of the
goods occasioned by theft or physical damage.

3. A lessor shall not be obligated under subdivision two of this
section to offer to waive its contractual right to hold the lessee
liable for the gap amount if, during the current calendar year or during
the odd-numbered calendar year immediately preceding the calendar year
in which the agreement is entered into, the lessor or the anticipated
assignee of the lessor has received non-motor vehicle lessor gap
insurance declination notices or other evidence of unavailability from
every insurance company whose name appears on the department of
financial services compilation of insurance companies which during that
calendar year were authorized to write non-motor vehicle lessor gap
insurance in this state. Evidence of these declinations shall be
retained by such a lessor or the anticipated assignee of such a lessor
for a period of six years after the expiration of the calendar year in
which they were issued.

If the lessor is not obligated to waive its contractual right to hold
the lessee liable for the gap amount, then the notice required by
subdivision one of this section shall contain a statement that the
lessee may be able to purchase lessee gap insurance covering the gap
amount directly from an insurer authorized to do such business in this
state, but that the purchase of gap insurance is not required under the
retail lease agreement.

4. In order to enable lessors or their anticipated assignees to comply
with the requirements imposed by subdivision two of this section, the
superintendent of financial services shall compile and make available a
periodically updated list of those insurance companies which are
authorized to write non-motor vehicle lessor gap insurance coverage in
this state.

5. Nothing in this section shall be construed to apply to the lessor,
or any anticipated assignee of a lessor, under a retail lease agreement
under which the lessee is not liable upon a total loss of the goods
occasioned by theft, confiscation or physical damage for the gap amount,
except that the lessor shall provide to the lessee conspicuous notice
that, in the event of a total loss of the goods, the lessee has no
obligation for the gap amount.

6. 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 in any such proceeding
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.

7. For purposes of this section: (a) "Goods" means all chattels
personal, other than things in action or money, leased for other than a
commercial or business use or for purpose of sublease. The term includes
goods which, at the time of the lease or subsequently, are to be so
affixed to realty as to become a part thereof whether or not severable
therefrom, but does not include a motor vehicle as defined in article
nine-A of the personal property law.

(b) "Lessee" means a natural person who leases goods from a lessor
primarily for personal, family or household use and who executes a
retail lease agreement in connection therewith. The term does not
include a person who leases goods primarily for agricultural, business
or commercial use or for the purpose of subleasing.

(c) "Lessor" means a person regularly engaged in the business of
leasing or selling goods who leases goods to a lessee under or subject
to a retail lease agreement.

(d) "Lease" means a transfer from a lessor to a lessee of the right to
possession and use of goods in return for consideration. The term does
not include a sale, including a sale on approval or a sale or return, a
retail instalment sale as defined in article ten of the personal
property law or the retention or creation of a security interest in the
goods.

(e) "Retail lease agreement" or "agreement" means an agreement,
entered into in this state, for the lease of goods and which may include
the purchase of goods or services incidental thereto by a lessee for a
scheduled term exceeding four months, whether or not the lessee has the
option to purchase or otherwise become the owner of the goods at the
expiration of the agreement. The term includes such an agreement
wherever entered into if executed by the lessee in this state and if
solicited in person by a person acting on his or her own behalf or that
of the lessor. The term does not include a retail instalment contract or
a rental-purchase agreement as defined in articles ten and eleven of the
personal property law. An agreement that substantially complies with
this article does not create a security interest in the goods as the
term "security interest" is defined in paragraph thirty-five of
subsection (b) of section 1--201 of the uniform commercial code.

(f) "Gap amount" has the meaning ascribed to it in paragraph fifty-two
of subsection (a) of section one hundred seven of the insurance law.

(g) "Gap insurance" has the meaning ascribed to it in paragraph
twenty-six of subsection (a) of section one thousand one hundred
thirteen of the insurance law.

(h) "Person" means an individual, partnership, corporation,
association or other group, however organized.

* NB There are 2 § 399-w's