S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                   309

                       2013-2014 Regular Sessions

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 9, 2013
                               ___________

Introduced by M. of A. DINOWITZ -- read once and referred to the Commit-
  tee on Consumer Affairs and Protection

AN  ACT  to  amend  the general business law, in relation to the sale of
  monuments and memorials

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision 2 of section 454 of the general business law,
as amended by chapter 390 of the laws of 2007, is  amended  to  read  as
follows:
  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  docu-
ment reflecting the purchase by a consumer of any other real or personal
property  or service related to the burial, cremation, or other disposi-
tion 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 foun-
dation.  Such  separate  contract shall be prepared, completed and main-
tained in accordance with this section for every memorial sale,  includ-
ing  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:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD01458-01-3

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  (a) the name, address and telephone number of the seller of the  memo-
rial;
  (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 memori-
al including the approximate layout thereof, [and] the method  of  SAND-
BLASTING OR engraving of such inscription, AND A CERTIFICATE OF QUALITY,
DETAILING COUNTRY OR STATE OF ORIGIN;
  (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 THE NAME
OF THE OWNER OF THE PLOT; and
  (g) a full disclosure of each of the following: the price of the memo-
rial; 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.
  S 2. The general business law is amended by adding a new section 454-a
to read as follows:
  S 454-A. UNSOLICITED OFFERS FOR MONUMENTS OR MEMORIALS. 1. (A)  EXCEPT
AS  PROVIDED  IN PARAGRAPH (B) OF THIS SUBDIVISION, IT SHALL BE UNLAWFUL
TO PROVIDE ANY OFFER FOR MONUMENTS OR MEMORIALS UNLESS  SUCH  OFFER  HAS
FIRST BEEN SOLICITED BY THE INDIVIDUAL TO WHICH IT IS SENT.
  (B)  PROVIDED,  HOWEVER, SUCH AN OFFER IS PERMISSIBLE WHERE, IN LARGE,
BOLD-FACE TYPE AT THE TOP  OF  SUCH  OFFER,  "SOLICITATION"  IS  CLEARLY
PRINTED.
  2.  AN  OFFER PROVIDED PURSUANT TO PARAGRAPH (B) OF SUBDIVISION ONE OF
THIS SECTION WHICH OFFERS FOR SALE A SPECIFIC MONUMENT  OR  MEMORIAL  OR
CHOICE  OF SPECIFIC MONUMENTS OR MEMORIALS SHALL ADDITIONALLY PROVIDE: A
FULL DESCRIPTION OF THE MONUMENT OR MEMORIAL, INCLUDING THE MATERIAL  TO
BE  PROVIDED,  THE  DIMENSIONS  OF  THE FINISHED MONUMENT OR MEMORIAL, A
SKETCH OR DRAWING OF THE PROPOSED MONUMENT OR MEMORIAL,  THE  METHOD  OF
SAND  BLASTING  OR  ENGRAVING  OF  ANY INSCRIPTION, AND A CERTIFICATE OF
QUALITY DETAILING COUNTRY OR STATE OF ORIGIN, AS WELL AS A FULL  DISCLO-
SURE  OF EACH OF THE FOLLOWING: THE TOTAL PRICE OF THE MONUMENT OR MEMO-
RIAL AS OFFERED; APPLICABLE SALES TAX AS OFFERED,  IF  ANY;  THE  CHARGE
MADE  BY  THE  CEMETERY FOR THE FOUNDATION IF THE CEMETERY IS KNOWN; ANY
CHARGES FOR ADDITIONAL WORK,  PROVIDED  THAT  SUCH  ADDITIONAL  WORK  IS
CLEARLY  DESCRIBED  IN  THE OFFER AND SUCH CHARGES ARE ITEMIZED; 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

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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 BE CONSTRUED TO APPLY TO A
SOLICITED OFFER FOR SALE MADE BY ANY FIRM, CORPORATION OR  OTHER  ENTITY
OWNED  BY AN INDIVIDUAL LICENSED OR REGISTERED UNDER ARTICLE THIRTY-FOUR
OF THE PUBLIC HEALTH LAW AS PART OF A FUNERAL PREARRANGEMENT OR AS  PART
OF  A  PRENEED  CONTRACT PURSUANT TO SECTION FOUR HUNDRED FIFTY-THREE OF
THIS ARTICLE.
  5. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO  CEMETERY  CORPO-
RATIONS  AS DEFINED AND REGULATED BY ARTICLE FIFTEEN OF THE NOT-FOR-PRO-
FIT CORPORATION LAW AND THE REGULATIONS PROMULGATED THEREUNDER.
  S 3. This act shall take effect on the ninetieth day  after  it  shall
have become a law.