§ 396-Y — Sale of certain personal property; incentives; disclosure of value

§ 396-y. Sale of certain personal property; incentives; disclosure of\nvalue. 1. Definitions. a. The term "consumer" shall mean a natural\nperson residing in this state.\n b. The term "consumer goods" shall mean any item of personal property,\nmerchandise or services, having a value of five hundred dollars or more,\nsold or offered for sale to a consumer, the intended use of which is\npersonal, family or general household, not intended for immediate\nresale.\n c. The term "incentive" shall mean the free offering of any gift,\nbonus or other inducement to purchase such consumer goods which gift,\nbonus or inducement shall be in the nature of intangible personal\nproperty.\n 2. Prohibition. No person, firm, corporation, association or agent or\nemployee thereof shall provide an incentive in the sale or offering for\nsale of consumer goods, both such terms as defined herein, without a\ncomplete, detailed and accurate written disclosure of the actual present\nliquidated retail value of such incentive at the time or date of sale of\nthe subject consumer goods and whether any tax obligations may be\nincurred by the consumer as a result of owning the incentive.\n 3. Enforcement. a. A consumer who has suffered a loss due to a\nviolation of this section by a merchant is entitled to recover from the\nmerchant actual damages. In addition, the court may award the consumer\nreasonable attorneys fees and court costs.\n b. A violation of this section is a deceptive trade practice under\nsection three hundred forty-nine of this chapter.\n c. Whenever there shall be a violation of this section an application\nmay be made by the attorney general in the name of the people of the\nstate of New York to a court or justice having jurisdiction by a special\nproceeding to issue an injunction, and upon notice to the defendant of\nnot less than five days, to enjoin and restrain the continuance of such\nviolations; and if it shall appear to the satisfaction of the court or\njustice that the defendant has, in fact, violated this section, an\ninjunction may be issued by the court or justice, enjoining and\nrestraining any further violations, 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. Whenever the court shall determine that a violation of this\nsection has occurred, the court may impose a civil penalty of not more\nthan five hundred dollars for each violation. In connection with any\nsuch proposed application the attorney general is authorized to take\nproof and make a determination of the relevant facts and to issue\nsubpoenas in accordance with the civil practice law and rules.\n d. Nothing in this section shall be construed so as to nullify or\nimpair any right or rights which a consumer may have against a merchant\nat common law, by statute, or otherwise, nor to impair the ability of\nthe attorney general to institute investigations and proceedings, where\nappropriate, as provided in article twenty-three-A of this chapter, nor\nto eliminate the requirements that may be imposed upon a merchant under\nsuch article.\n e. An action shall not be brought under this section more than six\nyears after the occurrence of the act, method or practice which is the\nsubject of the action or more than one year after the last payment in a\ntransaction involving the method, act or practice which is the subject\nof the action, whichever is later.\n f. Any covenant, promise, agreement or understanding in, or in\nconnection with or collateral to a sale or offering for sale of consumer\ngoods, subject to the provisions of this section, purporting to\nacknowledge that a gift, bonus or other inducement received by a\nconsumer in connection with a sale or offering for sale of consumer\ngoods was not an incentive as defined herein, or otherwise purporting to\ndirectly or indirectly waive the provisions of this section, is against\npublic policy and is void and unenforceable.\n