N.Y. General Business Law § 396-y: Sale of certain personal property; incentives; disclosure of value

§ 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.