N.Y. General Business Law § 454: Sale of monuments and memorials

§ 454. Sale of monuments and memorials. 1. Definitions. As used in

this section, the following words shall have the following meanings:

(a) "Consumer" means any natural person who is solicited to purchase

or who purchases a memorial. The term shall not include a person making

a purchase for resale.

(b) "Memorial" means any monument, headstone, footstone, ledger stone,

marker or plaque designed or intended to be erected or installed in or

on any cemetery, grave, mausoleum or other appropriate place of burial

or memorialization.

(c) "Seller" means an individual, firm, corporation, not-for-profit

corporation, religious corporation, municipal corporation, political

subdivision, partnership, association, society or joint stock company,

or any agent or employee thereof.

(d) "Offer for sale" means any contact by a seller with a consumer of

which the subject of the sale of a memorial to a consumer is a part,

whether such contact be in person, by telephone, mail, or other

electronic means, and regardless of whether or not the consumer

initiates such contact.

(e) "Sale" means the sale of a memorial to or for a consumer for

actual delivery prior to, or subsequent to, a death.

(f) "Foundation" means a poured concrete or other permanent base

intended to support the memorial and installed at the gravesite in the

appropriate location.

2. Each sale of a memorial shall only be evidenced by a written

contract which shall be signed by all the parties to the contract, which

shall be dated, and which shall be completely separate and may not be

included in any other contract, agreement, purchase order, price list,

itemization of funeral services and merchandise selected or like

document reflecting the purchase by a consumer of any other real or

personal property or service related to the burial, cremation, or other

disposition of the remains of a deceased person. For purposes of this

section, the pourer of a foundation shall not be considered the seller

of a foundation. Such separate contract shall be prepared, completed and

maintained in accordance with this section for every memorial sale,

including a foundation therefor, and shall be the only contractual

document prepared in connection with such sale. Provided however in the

case of the sale of a monument or memorial made at the same time as a

preneed sale of funeral goods or services, a one page document

summarizing the transaction shall be given to the consumer in addition

to, but not in lieu of, the separate contract required by this section.

A full and complete copy of such contract shall be given to the consumer

by the seller at the time of purchase of such memorial, and shall be

retained by the seller for a period of at least three years from the

date of sale. Said contract shall contain at least the following:

(a) the name, address and telephone number of the seller of the

memorial;

(b) the name, address and telephone number of the consumer;

(c) the full name of the individual to be memorialized and, if known,

the date of such individual's death;

(d) a full description of the memorial, including the material to be

provided, the dimensions of the finished memorial, a sketch or drawing

of the proposed memorial, the wording of any inscription on such

memorial including the approximate layout thereof, the method of

engraving of such inscription and the country or state of origin of such

monument or memorial provided by the manufacturer;

(e) the approximate date when the memorial is expected to be

completed;

(f) the name of the cemetery in which the memorial is to be placed,

together with the location of the plot or grave, if known; and

(g) a full disclosure of each of the following: the price of the

memorial; applicable sales tax, if any; the charge made by the cemetery

for the foundation; any charges for additional work, provided that such

additional work is clearly described in the contract and such charges

are itemized; the total price as contracted; and the schedule for

payment, if any.

3. Whenever there shall be a violation of the provisions 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 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 the

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 eight thousand three hundred three of the

civil practice law and rules and direct restitution. 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. Whenever

the court shall determine that a violation of this section has occurred,

the court may impose a civil penalty of up to five hundred dollars for

the first violation and up to one thousand dollars for the second or

subsequent violation within an eighteen month period.

4. The provisions of this section shall not apply to cemetery

corporations as defined and regulated by article fifteen of the

not-for-profit corporation law and the regulations promulgated

thereunder.