§ 454 — Sale of monuments and memorials

§ 454. Sale of monuments and memorials. 1. Definitions. As used in\nthis section, the following words shall have the following meanings:\n (a) "Consumer" means any natural person who is solicited to purchase\nor who purchases a memorial. The term shall not include a person making\na purchase for resale.\n (b) "Memorial" means any monument, headstone, footstone, ledger stone,\nmarker or plaque designed or intended to be erected or installed in or\non any cemetery, grave, mausoleum or other appropriate place of burial\nor memorialization.\n (c) "Seller" means an individual, firm, corporation, not-for-profit\ncorporation, religious corporation, municipal corporation, political\nsubdivision, partnership, association, society or joint stock company,\nor any agent or employee thereof.\n (d) "Offer for sale" means any contact by a seller with a consumer of\nwhich the subject of the sale of a memorial to a consumer is a part,\nwhether such contact be in person, by telephone, mail, or other\nelectronic means, and regardless of whether or not the consumer\ninitiates such contact.\n (e) "Sale" means the sale of a memorial to or for a consumer for\nactual delivery prior to, or subsequent to, a death.\n (f) "Foundation" means a poured concrete or other permanent base\nintended to support the memorial and installed at the gravesite in the\nappropriate location.\n 2. Each sale of a memorial shall only be evidenced by a written\ncontract which shall be signed by all the parties to the contract, which\nshall be dated, and which shall be completely separate and may not be\nincluded in any other contract, agreement, purchase order, price list,\nitemization of funeral services and merchandise selected or like\ndocument reflecting the purchase by a consumer of any other real or\npersonal property or service related to the burial, cremation, or other\ndisposition of the remains of a deceased person. For purposes of this\nsection, the pourer of a foundation shall not be considered the seller\nof a foundation. Such separate contract shall be prepared, completed and\nmaintained in accordance with this section for every memorial sale,\nincluding a foundation therefor, and shall be the only contractual\ndocument prepared in connection with such sale. Provided however in the\ncase of the sale of a monument or memorial made at the same time as a\npreneed sale of funeral goods or services, a one page document\nsummarizing the transaction shall be given to the consumer in addition\nto, but not in lieu of, the separate contract required by this section.\nA full and complete copy of such contract shall be given to the consumer\nby the seller at the time of purchase of such memorial, and shall be\nretained by the seller for a period of at least three years from the\ndate of sale. Said contract shall contain at least the following:\n (a) the name, address and telephone number of the seller of the\nmemorial;\n (b) the name, address and telephone number of the consumer;\n (c) the full name of the individual to be memorialized and, if known,\nthe date of such individual's death;\n (d) a full description of the memorial, including the material to be\nprovided, the dimensions of the finished memorial, a sketch or drawing\nof the proposed memorial, the wording of any inscription on such\nmemorial including the approximate layout thereof, the method of\nengraving of such inscription and the country or state of origin of such\nmonument or memorial provided by the manufacturer;\n (e) the approximate date when the memorial is expected to be\ncompleted;\n (f) the name of the cemetery in which the memorial is to be placed,\ntogether with the location of the plot or grave, if known; and\n (g) a full disclosure of each of the following: the price of the\nmemorial; applicable sales tax, if any; the charge made by the cemetery\nfor the foundation; any charges for additional work, provided that such\nadditional work is clearly described in the contract and such charges\nare itemized; the total price as contracted; and the schedule for\npayment, if any.\n 3. Whenever there shall be a violation of the provisions of this\nsection, an application may be made by the attorney general in the name\nof the people of the state of New York to a court or justice having\njurisdiction to issue an injunction, and upon notice to the defendant of\nnot less than five days, to enjoin and restrain the continuance of the\nviolation. If it shall appear to the satisfaction of the court or the\njustice that the defendant has violated this section, an injunction may\nbe issued by the court or justice, enjoining and restraining any further\nviolation, without requiring proof that any person has, in fact been\ninjured or damaged thereby. In any such proceeding, the court may make\nallowances to the attorney general as provided in paragraph six of\nsubdivision (a) of section eight thousand three hundred three of the\ncivil practice law and rules and direct restitution. In connection with\nany such proposed application, the attorney general is authorized to\ntake proof and make a determination of the relevant facts and to issue\nsubpoenas in accordance with the civil practice law and rules. Whenever\nthe court shall determine that a violation of this section has occurred,\nthe court may impose a civil penalty of up to five hundred dollars for\nthe first violation and up to one thousand dollars for the second or\nsubsequent violation within an eighteen month period.\n 4. The provisions of this section shall not apply to cemetery\ncorporations as defined and regulated by article fifteen of the\nnot-for-profit corporation law and the regulations promulgated\nthereunder.\n