§ 391-L — Personal emergency response service agreements; required cancellation provisions

New York § 391-L

• Jurisdiction: New York
• Law GBS: General Business
• Art. 26: Miscellaneous

Text

* § 391-l. Personal emergency response service agreements; required\ncancellation provisions. 1. As used in this section, the term "personal\nemergency response service" shall mean (a) the provision and maintenance\nof electronic communication equipment in the home of an individual which\nsignals a monitoring agency for help when activated by the individual,\nor after a period of time if a timer mechanism has not been reset; (b)\nthe continuous monitoring of such signals by a trained operator and, in\ncase of receipt of such signal, the immediate notification of such\nemergency response organizations or persons, if necessary, as the\nindividual has previously specified.\n 2. (a) In addition to any right otherwise to revoke an offer, the\npurchaser or other person obligated for any part of the purchase price\nor price for service for obtaining a personal emergency response service\nmay cancel the sale or purchase thereof with or without cause at any\ntime until midnight of the seventh business day after the day on which\nthe purchaser has signed an agreement or offer to purchase relating to\nsuch sale or purchase, without any penalty or obligation.\n (b) In addition to the cancellation right created by paragraph (a) of\nthis subdivision, the agreement providing for obtaining such service may\nbe cancelled by the purchaser or other person obligated for any part of\nthe purchase price or price for such service, upon thirty days prior\nwritten notice to the seller or supplier of such service, that the\npurchaser of such service has legally obligated himself or herself to\ncommence residence in a nursing home or other health-related facility\nwithin such thirty-day period for what is expected to be a permanent\nstay or an extended stay of at least two months duration, or that\nresidence therein with such expectation has already commenced.\n 3. (a) Cancellation under the terms of paragraph (a) of subdivision\ntwo of this section occurs when written notice of cancellation is given\nto the seller or provider of such service. Cancellation under the terms\nof such paragraph (a) shall be governed by the requirements of the\n"door-to-door sales protection act" contained in article ten-A of the\npersonal property law, whether or not such sale is a "door-to-door sale"\nas defined therein, except where such requirements are inconsistent with\nthe provisions of this section, in which case the provisions of this\nsection shall prevail, and except that the transactional exclusions from\nthe definition of "door-to-door sale" contained in paragraphs (a)\nthrough (f) of subdivision one of section four hundred twenty-six of the\npersonal property law shall not apply to the sale or purchase of a\npersonal emergency response service as defined herein.\n (b) Cancellation under the terms of paragraph (b) of subdivision two\nof this section occurs upon the thirtieth day after written notice of\ncancellation is given to the seller or provider of such service. Upon\nthe occurrence of cancellation under such paragraph (b), the purchaser\nor other person obligated for the purchaser shall remain obligated under\nsuch agreement to pay for the use of such service only for the period of\ntime during which the service was provided prior to the occurrence of\ncancellation thereunder. For this purpose, under such paragraph (b) the\nprice agreed to for the entire term of such agreement shall be prorated\nby multiplying such price by a fraction, the numerator of which is the\nperiod of time during which such service was provided prior to the\noccurrence of cancellation, and the denominator of which is the entire\nterm of such agreement. Any overpayment made in advance for the\nprovision of such service, the amount of which is determined by such\nproration shall be refunded to the purchaser or other person obligated\nfor the purchaser, as the case may be, within ten business days from the\ndate of the occurrence of cancellation under such paragraph (b). Such\ncancellation shall be without penalty to or other obligation on the part\nof, the purchaser or other person obligated for the purchaser.\n (c) Written notice of cancellation, if given by first-class mail,\nshall be deemed given when deposited in a mailbox properly addressed and\nadequate postage prepaid. Such written notice under the terms of\nparagraph (a) of subdivision two of this section shall be effective\nirrespective of the form of such written notice if it indicates the\nintention of the purchaser or other person obligated not to be bound.\nWritten notice of cancellation under the terms of paragraph (b) of\nsubdivision two of this section, to be effective irrespective of the\nform of such written notice shall, in addition to indicating an\nintention not to be bound, state the date of expected commencement or\ncommencement of residence in such nursing home or other health-related\nfacility, the expected duration of such residence, and the name and\naddress of such home or facility, and include with such notice a signed\nnote from such person's physician or from the home or facility, or a\ncopy of such person's agreement with such home or other facility,\nverifying that the terms of such paragraph (b) for cancellation have\nbeen satisfied.\n 4. In a sale or purchase of a personal emergency response service, the\nseller shall furnish to the purchaser:\n (a) a fully completed receipt or copy of any agreement pertaining to\nsuch sale at the time of its execution, which is in the same language,\ne.g. Spanish, as that principally used in any oral sales presentation\nand which shows the date of the transaction and contains the name and\naddress of the seller, and in immediate proximity to the space reserved\nin the contract for the signature of the purchaser or on the front page\nof the receipt if an agreement is not used and in not less than\nten-point boldface type, statements in substantially the following form:\n "I. YOU, THE PURCHASER, MAY CANCEL THIS TRANSACTION WITH OR WITHOUT\nCAUSE AT ANY TIME PRIOR TO MIDNIGHT OF THE SEVENTH BUSINESS DAY AFTER\nTHE DATE OF THIS TRANSACTION."\n "II. ON AND AFTER MIDNIGHT OF SUCH SEVENTH DAY, YOU, THE PURCHASER,\nMAY CANCEL YOUR AGREEMENT WITH THE SELLER FOR YOU TO RECEIVE PERSONAL\nEMERGENCY RESPONSE SERVICE MORE THAN 30 DAYS AFTER YOUR NOTIFYING THE\nSELLER IN WRITING OF YOUR CANCELLING SUCH AGREEMENT, PROVIDED THAT YOU\nHAVE LEGALLY OBLIGATED YOURSELF TO BEGIN LIVING IN A NURSING HOME OR\nOTHER HEALTH-RELATED FACILITY WITHIN SUCH 30-DAY PERIOD FOR WHAT IS\nEXPECTED TO BE A PERMANENT STAY OR AN EXTENDED STAY FOR AT LEAST 2\nMONTHS, OR THAT YOU HAVE ALREADY BEGUN LIVING THEREIN EXPECTING YOUR\nSTAY TO BE PERMANENT OR FOR AT LEAST 2 MONTHS, AND PROVIDED THAT THESE\nFACTS ARE VERIFIED BY YOUR DOCTOR OR BY THE NURSING HOME OR OTHER\nHEALTH-RELATED FACILITY."\n "SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF\nTHESE RIGHTS."\n (b) at the time the purchaser signs the contract to obtain the\npersonal emergency response service or otherwise agrees to purchase such\nservice from the seller, a completed form in duplicate, captioned\n"NOTICE OF CANCELLATION", which shall be attached to the contract or\nreceipt and easily detachable, and which shall contain in not less than\nten-point boldface type the following information and statements in the\nsame language, e.g. Spanish, as that used in the contract:\n NOTICE OF CANCELLATION\n _______________________________________________\n (enter date of transaction here)\n I. YOU MAY CANCEL THIS TRANSACTION, WITHOUT ANY PENALTY OR OBLIGATION,\nWITHIN SEVEN (7) BUSINESS DAYS FROM THE ABOVE DATE.\n IF YOU CANCEL UNDER THIS FIRST RIGHT TO CANCEL, ANY PROPERTY TRADED\nIN, ANY PAYMENTS MADE BY YOU UNDER THE CONTRACT OR SALE, AND ANY\nNEGOTIABLE INSTRUMENT EXECUTED BY YOU WILL BE RETURNED WITHIN TEN (10)\nBUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR CANCELLATION\nNOTICE, AND ANY SECURITY INTEREST ARISING OUT OF THE TRANSACTION WILL BE\nCANCELLED.\n II. IN ADDITION TO THE ABOVE RIGHT TO CANCEL THE TRANSACTION, YOU OR\nANOTHER PERSON OBLIGATED FOR ANY PART OF THE PURCHASE PRICE OR PRICE FOR\nSUCH SERVICE MAY ALSO CANCEL YOUR AGREEMENT WITH THE SELLER PROVIDING\nFOR YOUR OBTAINING OF SUCH SERVICE EFFECTIVE UPON THE 30TH DAY AFTER\nGIVING WRITTEN NOTICE TO SUCH SELLER OR SUPPLIER OF THE SERVICE, THAT\nYOU HAVE LEGALLY OBLIGATED YOURSELF TO COMMENCE RESIDENCE IN A NURSING\nHOME OR OTHER HEALTH-RELATED FACILITY WITHIN THE NEXT 30 DAYS FOR WHAT\nIS EXPECTED TO BE A PERMANENT STAY OR AN EXTENDED STAY OF AT LEAST 2\nMONTHS DURATION, OR THAT YOUR RESIDENCE THEREIN WITH SUCH EXPECTATION\nHAS ALREADY COMMENCED.\n YOU MAY DO SO PROVIDED THAT IN SUCH WRITTEN NOTICE OF CANCELLATION YOU\nINDICATE AN INTENTION NOT TO BE BOUND, STATE THE DATE OF EXPECTED\nCOMMENCEMENT OR DATE OF ACTUAL COMMENCEMENT OF RESIDENCE IN SUCH NURSING\nHOME OR OTHER HEALTH-RELATED FACILITY, THE EXPECTED DURATION OF SUCH\nRESIDENCE, AND THE NAME AND ADDRESS OF SUCH HOME OR FACILITY, AND\nPROVIDED THAT YOU INCLUDE WITH YOUR NOTICE OF CANCELLATION A SIGNED NOTE\nFROM YOUR PHYSICIAN OR FROM SUCH HOME OR FACILITY, OR A COPY OF YOUR\nAGREEMENT WITH SUCH HOME OR OTHER FACILITY, VERIFYING THAT YOU HAVE\nSATISFIED THE TERMS DESCRIBED HEREIN FOR CANCELLATION. IF YOU HAVE\nSATISFIED THESE CONDITIONS, CANCELLATION UNDER THIS SECOND RIGHT OF\nCANCELLATION WILL BE EFFECTIVE ON THE 30TH DAY AFTER SUCH WRITTEN NOTICE\nIS GIVEN BY FIRST-CLASS MAIL ADEQUATE POSTAGE PREPAID AND PROPERLY\nADDRESSED TO THE SELLER.\n TO CANCEL YOUR AGREEMENT UNDER THIS SECOND RIGHT TO CANCEL, SEND THE\nABOVE-DESCRIBED WRITTEN NOTICE TOGETHER WITH ALL REQUIRED SUPPORTING\nINFORMATION BY FIRST-CLASS MAIL ADEQUATE POSTAGE PREPAID TO THE NAME AND\nADDRESS OF SELLER STATED BELOW.\n IF YOU CANCEL, WHETHER UNDER THE FIRST OR UNDER THE SECOND RIGHT TO\nCANCEL, YOU MUST MAKE AVAILABLE TO THE SELLER, IN SUBSTANTIALLY AS GOOD\nCONDITION AS WHEN RECEIVED, ANY DEVICE DELIVERED TO YOU UNDER THIS\nCONTRACT OR SALE AND NEEDED TO RECEIVE SUCH PERSONAL EMERGENCY RESPONSE\nSERVICE; OR YOU MAY IF YOU WISH, COMPLY WITH THE INSTRUCTIONS OF THE\nSELLER REGARDING THE RETURN SHIPMENT OF THE DEVICE AT THE SELLER'S\nEXPENSE AND RISK.\n IF YOU FAIL TO MAKE THE DEVICE AVAILABLE TO THE SELLER, OR IF YOU\nAGREE TO RETURN THE DEVICE TO THE SELLER AND FAIL TO DO SO, THEN YOU\nREMAIN LIABLE FOR PERFORMANCE OF ALL OBLIGATIONS UNDER THE CONTRACT.\n TO CANCEL THIS TRANSACTION UNDER YOUR FIRST RIGHT OF CANCELLATION\nSTATED FIRST ABOVE, MAIL OR DELIVER A SIGNED AND DATED COPY OF THIS\nCANCELLATION NOTICE OR ANY OTHER WRITTEN NOTICE, OR SEND A TELEGRAM, TO:\n___________________________ AT _________________________________________\n(Name of Seller) (Address of Seller's Place of Business)\n NOT LATER THAN MIDNIGHT OF\n _________________\n (Date)\nI HEREBY CANCEL THIS TRANSACTION.\n______________________ ______________________________\n(Date) (Purchaser's Signature)\nand the seller shall complete both copies by entering the name of the\nseller, the address of the seller's place of business, the date of the\ntransaction, and the date, not earlier than the seventh business day\nfollowing the date of the transaction, by which the purchaser may give\nnotice of cancellation under the first right of cancellation.\n 5. In a sale of a personal emergency response service, the seller\nshall inform each purchaser orally, at the time he or she signs the\ncontract or purchases the service, of his or her two statutory rights to\ncancel. Until the seller has informed the purchaser of his two rights\nto cancel granted by law, the purchaser or any other person obligated\nfor any part of the purchase price or price for service may cancel the\nsale by notifying the seller in any manner and by any means of his\nintention to cancel under the first right of cancellation. The seven-day\nperiod during which cancellation may be made under the first right of\ncancellation shall begin to run only from the time the seller complies\nwith this requirement.\n 6. A personal emergency response service sales contract or receipt\nshall not include any confession of judgment or any waiver of any of the\nrights to which the buyer is entitled under this section including\nspecifically his or her right to cancel the transaction or agreement in\naccordance with the provisions of this section.\n 7. A personal emergency response service sales agreement or receipt\nshall disclose conspicuously the seller's refund policy as to the lease,\npurchase or use of any device which is subject to the service sales\nagreement. If the seller fails to disclose conspicuously the applicable\nrefund policy in such agreement or receipt, then the seller shall be\nliable to the purchaser for a cash refund of the total price or a credit\nof the total price, at the purchaser's option, paid by the purchaser or\ncharged by the seller for the lease, purchase or use of such device,\nprovided that within twenty days from the date of delivery of the\ndevice, the purchaser makes a demand therefor and provided that the\ndevice is in substantially as good condition as when received by the\npurchaser of the service. In no event shall this subdivision be deemed\nto supersede a refund policy of a seller which allows return of the\ndevice more than twenty days after the date of delivery of the device to\nthe purchaser of the service. If the seller fails to disclose\nconspicuously the applicable refund policy in such agreement or receipt,\nthen the amount paid by the purchaser to the seller for the lease,\npurchase or use of the device shall be refunded or credited, as the case\nmay be, within ten business days from the date of return of the seller's\ndevice in substantially as good condition as when received by the\npurchaser of the service.\n 8. This section does not relieve any person, firm, corporation or\nassociation subject to the provisions of this section from complying\nwith any other applicable law, ordinance, rule or regulation relating to\nrefund policies which affords the purchaser greater protection than do\nthe provisions of this section.\n * NB There are 2 § 391-l's\n