§ 396-U — Merchandise delivery

§ 396-u. Merchandise delivery. 1. Definitions. As used in this\nsection:\n a. "Consumer" means a person who enters into a contract with a dealer\nfor the purchase or lease of furniture or a major household appliance.\n b. "Person" means any individual, firm, partnership, corporation,\nassociation or other legal entity.\n c. "Furniture" means any article used to furnish a house, apartment or\nplace of business or accommodation, as distinguished from permanent\nfixtures or adjuncts, including but not limited to chairs, tables,\ncabinets, sofas, carpets, rugs, curtains, bedsteads and chests;\nprovided, that such term shall not mean any article which is in\nsubstantial part custom-made or custom finished.\n d. "Major household appliance" means air conditioners, audio or stereo\nequipment, washing machines for clothes, clothes dryers, dishwashers,\nfood freezers, refrigerators, stoves, ranges, ovens, sewing machines,\ntelevision sets, tape and video recorders or any other consumer durable\ngoods generally intended for household use having a purchase price in\nexcess of two hundred dollars.\n e. "Furniture dealer", "major household appliance dealer" or "dealer"\nmeans any person who engages in the business of selling or leasing\nfurniture or major household appliances or both.\n 2. It shall be an unlawful practice for a furniture or major household\nappliance dealer to:\n a. Fail to disclose an estimated delivery date, or an estimated range\nof delivery dates, conspicuously and in writing on the consumer's copy\nof the contract entered into for the sale or lease of furniture or major\nhousehold appliance, at the time an order for such merchandise is taken;\n b. Fail to deliver the furniture or major household appliance by the\nlatest date stated for delivery, unless the affected consumer is\nnotified:\n (1) of the delay and the revised anticipated delivery date or range of\ndelivery dates; and\n (2) of the fact that, upon the expiration of the latest date stated\nfor delivery in the original contract, such consumer shall have the\noption of:\n (a) canceling the contract and receiving full refund; or\n (b) canceling the contract and receiving a credit from the dealer in\nan amount equal to any deposit made by the consumer; or\n (c) negotiating a new delivery date or range of delivery dates with\nthe dealer which date or range of dates shall thereafter be the latest\ndate stated for delivery in the contract for purposes of this\nsubdivision; or\n (d) modifying the contract by making a new selection of furniture or\nmajor household appliance;\n c. In the event that the furniture or major household appliance has\nnot been delivered by the latest date stated for delivery in the\noriginal contract, to fail to honor a consumer's election from among the\noptions described in subparagraph two of paragraph b of this\nsubdivision;\n d. In the event that a consumer elects to cancel the contract and\nreceive a refund, to fail to make a refund within two weeks of receiving\na demand for such refund.\n 3. Notwithstanding any other provisions of this section, where a delay\nin delivery as determined from the original contract is caused by a\nstrike or by an act of God, the applicable delivery date shall be\nextended by an amount of time equal to the duration of the strike or\ncondition giving rise to the delay or thirty days, whichever is less.\n 4. Where a failure to deliver, or delay in delivery beyond the latest\nday promised or stated for delivery, is caused solely by a consumer,\nsuch failure or delay shall not constitute an unlawful practice under\nthis section.\n 5. Nothing herein contained shall be construed to be a waiver or\nlimitation of any right of a consumer elsewhere provided by law, and\nnothing herein shall preempt any local statute or regulation or\nsupersede any contract which is consistent with this section or which\nprovides greater protection to the consumer.\n 6. This section shall not apply to mail order merchandise.\n 7. A consumer injured by a violation of this section may bring an\naction to recover damages. Judgment may be entered for three times the\nactual damages suffered by a consumer or one hundred dollars, whichever\nis greater provided, however, that treble damages may not be assessed\nagainst a dealer who shows by a preponderance of the evidence that the\nviolation was not intentional and resulted from a bona fide error\nnotwithstanding the maintenance of procedures reasonably adopted to\navoid such error. A court also may award reasonable attorney's fees to a\nprevailing plaintiff consumer.\n 8. Upon any violation of this section, an application may be made by\nthe attorney general in the name of the people of the state to a court\nor justice having jurisdiction to issue an injunction, and upon notice\nto the defendant of not less than five days, to enjoin and restrain the\ncontinuance of the violation. If it shall appear to the satisfaction of\nthe court or justice that the defendant has violated this section, an\ninjunction may be issued by the court or justice, enjoining and\nrestraining any further violation, without requiring proof that any\nperson has, in fact, been injured or damaged thereby. In any such\nproceeding, the court may make allowances to the attorney general as\nprovided in paragraph six of subdivision (a) of section eighty-three\nhundred three of the civil practice law and rules, and direct\nrestitution. In connection with an application made under this\nsubdivision, the attorney general is authorized to take proof and to\nmake a determination of the relevant facts and to issue subpoenas in\naccordance with the civil practice law and rules.\n