Legislation

§ 5-328. Processing fee by holder of dishonored check. 1. As used in
this section the following terms shall have the following meanings:

(a) "Holder of a check" means the holder or its assignee,
representative or any other person retained by the holder to seek
collection of the face value of a dishonored check.

(b) "Dishonored check" means a check, draft or like instrument drawn
on a bank or depository institution as full or partial payment for an
unpaid balance on an account, or for other extensions of credit or
payments of money in connection with a consumer transaction, which is
not paid or is dishonored or is returned by such institution due to
insufficient funds or other cause not attributable to the holder.

(c) "Consumer transaction" means a transaction in which a natural
person is extended credit for, or purchases or leases, personal
property, money or services primarily for personal, family or household
purposes.

(d) "Account" means a loan account, a retail credit account or an
obligation under a retail lease agreement, retail instalment contract or
retail instalment obligation or a retail instalment credit agreement, as
defined in sections three hundred one, three hundred thirty-one and four
hundred one of the personal property law.

2. Notwithstanding the provisions of any law:

(a) The holder of a dishonored check given in payment for a consumer
transaction or an account may collect from, charge, or add to the
outstanding balance of the account of, the person from whom such check
was received or to whom such credit was extended, a dishonored check
charge of not more than the lesser of the amount agreed upon, if
contracted for, or twenty dollars.

(b) A dishonored check charge shall not be deemed a credit service
charge, interest or an incident to or a condition to the extension of
credit, for any purpose of law.

3. (a) Notwithstanding any other provision of law, any person to whom
a check, draft or like instrument, other than a money order, bank
cashier's check or certified check, is tendered for any transaction,
other than a consumer transaction, may, if such instrument is dishonored
charge or collect from the maker or drawer the amount of twenty dollars
for the return of such unpaid or dishonored instrument.

(b) Notwithstanding any other provision of this subdivision, a
landlord, lessor, sub-lessor or grantor to whom a check, draft or like
instrument, other than a money order, bank cashier's check or certified
check, is tendered for payment of rent, may if such instrument is
dishonored charge or collect from the maker or drawer the amount of
actual costs, charges or fees incurred by such landlord, lessor,
sub-lessor or grantor for the return of such dishonored check or the
amount set forth in paragraph (a) of this subdivision, whichever is
greater, provided that:

(i) if the payment, fee or charge exceeds the amount set forth in
paragraph (a) of this subdivision the landlord, lessor, sub-lessor or
grantor shall provide to the tenant upon request evidence substantiating
the equivalence between the payment, fee or charge and the amount of
actual costs, charges or fees incurred for the return of the dishonored
check; and

(ii) such dishonored check charge was contracted for in the lease
agreement between the tenant and landlord, lessor, sub-lessor or grantor
in accordance with the requirements of subdivision two-a of section two
hundred thirty-eight-a of the real property law. The provisions of this
paragraph shall not apply to a shareholder of a cooperative housing
corporation, provided, however, that the provisions of this paragraph
shall apply with respect to any tenant or subtenant of such a
shareholder.