N.Y. General Business Law § 396-u: Merchandise delivery

§ 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.