001
MAY-05-2010 WED 12:04 PM VERGILISISTENGER,ROBERTS
FAX NO, 8452982842
p, 01/05
r
GERALD A. VBRGILlS.
KENNETII M. STENGER
ALBERT P. IWaSRTS
THOMAS R. DAVIS
STEPHEN e. DIAMOND....
JOAN p, GARRETT"
VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND! LLP
ATTORNEYS AND COUNSELORS A T LAW
1136 ROUTB 9
WAPPINGERS fALLS, NEW YORK 12590
(84S) 298-2000
fAX (845) 298-2842
OF COUNSEl.;
KAREN MacNISH
LOOAI. ASSISTANTS:
AMY E. DECARLO
SANDRA A. OAKlEY
SARAH SALISBURY
www.vsrp.com
e"mail: info@vsrp.com
CLOSING COORDINATOR:
MAAIAJONElS
KEVIN T. McDERMOIT
ANOEl.. I. fAl.C6N
ANTIIONY M. DEFAZIO."
JAMES P. HORAN...
USA JIA, COBB
M. ELLEN O'SULLIVAN
.. ADMITTEDTOPRACflCE
fN NY &: FLA.
.. AOMll"rmJ TO PRACTICE
rN' 'NY & CONN.
... ADMl'trF.O TO PRACTICE
IN NY&; Nor
.... ADMTTIED 'ro PRACT1CB
IN NY, FL &. MA
May 4, 2010
fRi~(C~llW~[Q)
POUGHKEEPSIE OFFICE
276 MAIN STREET
POUGHKEEPSIE, NY 12601
(845) 452-1046
NSWBURGH OFFICE
372 FULLERTON AVENUE
NEWBURGH, NY 12550
(845) 567-3783
Hon. Christopher J. Colsey, Supervisor
Town of Wappinger
20 Middlebush Road
Wappingers Falls, New York 12590
AUG 0"5201J
TOWN OF WAPPINGER
TOWN CLERK
Re: Going Out of Business Sales
Dear Chris:
Regarding the question about "Going Out of Business Salesll, please be advised that this
is covered by General Business Law Article 29-F. In a nutshell. anyone conducting a
Going Out of Business Sale must apply to the Town Clerk for a license to conduct a
Going Out of Business Sale. The license is good for 30 days and may be renewed once.
I am enclosing a copy of section 583 of the General Business Law identifying the
application requirements as well as section 587 identifying the grounds for denial and/or
revocation. I have no knowledge of whether or not such a license has ever been issued by
the Town previously.
Very trol Y yours,
VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND, LLP
CLhb~L-+ P LQ)bLL~/ C91CD
ALBERT P. ROBERTS
APR/so
Enclosures
cc: HOD. John C. Masterson, Town Clerk
O;\Wappingcr\Town Bollfd\l-oene~1TB\2010\050410 feller to Col:i!;)' rG Going Out of Business SlIIes.doc
~582
225
GENEIlAL BUSINESS,.;
Art.~i. '
. ~.
't;.;._..
. .ING'OUT OF BUSINESS I 583
.1~F
..:- -' ~
.' i,The 'reason for the urgent and expeditious disposal of the
. i:i~; wares or merchandise to be offered at such sale.
~J:'.A statement of the descriptive name of the sale.
j}., c
b8r~]fthe application is for a "closing out sale" or a "de~nct
~e~ sale:' a statement whether the business is to be term.inated
,epnanently or reopened at another location; the location of the
, .'."ses at which the business is to be reopened; whether the
"lic.ant intends to resume the operation of the business upon the
. 'fi!lination of the sale; and the name or designation under which
_.cb business is to be resumed.
.....'., - .
.' l~(?) A full, complete, detailed, and itemized inventory of the goods,
:Fs,. and merchandise to be offered at such sale as disclosed by
.~RYCimt' s records, which inventory shall: ,
, ~Jj} . Itemize the goods, wares and merchandise to be offered for sale
','d,icontain sufficient information concerning each item, including
"uantity, make, brand name, model and manufacturer's number, if
~.. to clearly identify it;
~'::Jll) List separately any goods, wares and merchandise to be-offered
:fu~~ sale which were purchased and received during a ninety-day
. .~od immediately prior to the date of making application for the
.' . Cense'
r. ·
Ubrary Referen-oos
American DJgut System , 1~,~'~':
COD51lI1leT prot~clLon sllltutes; ad\'ertising and labeling regulatillm. see Co~' ~.
Protection (l:lo 1 et seq.. 1. . ,:. ~
fi
l':.....
Consumer protection statutes; advertisini& and labeling regulations. see cf
Credit Reporting Allencies~ Coeiumer Protection 5! 13 et seq., 59. ,il
WESTI...o\W Research
EncyclOjlCdla
Consumer protection c!l.Ses: 92hk[add key number].
* 583. AppJiaition requirements .'i.
,L'
(a) Any person desiring to conduct any sale as defined in sect!o
five hundred eighty-one shall make a written application under all' ,
to the licensing authority of the appropriate city. town or vilIageJ:
which the sale is to be held. ' .
(b) If the application is for a "closing out sale" or a "defuii"'-
business sale," it shall be filed at least fifteen days prior to thec'M
on which such sale is to commence. . .,"."
(c) If the application is for a "sale of goods damaged by ~
smoke or water," it may be made at any time prior to the dateA(
which such sale is to commence. .,
. )<"
(d) Such application shall set forth and contain the fallo ',-
information: (1) The name and address of the applicant, whether: .
applicant is the true owner of the goods, wares or merchandise tdJ~',
sold, and if the applicant be a partnership, the names and ad-
of all partners. or if the applicant be a corporation or association,~.....
date and place of incorporation or organization, the address of, .','
principal office within the state, the names and addresses of all .~ .
officers of the applicant and whether controlling interest ID.1=.'
corporation or association was transferred within six months prior,:
the date of the filing of the application, <' .1r
(2) The name and address of the person or persons who will 'I'~
charge and responsible for the conduct of such sale. t,
''j~l
(3) The exact address of the place at which the proposed saleisi
be conducted and the length of time the applicant has been enga ':..
in business at such location. - .'.,
(4) The date on which it is proposed to begin the sale.
(5) The nature of the occupancy where: such sale is to be h'~
whether by lease or otherwise, and the effective date of terminp, :~
of such occupancy. .
224
)(ili). List the total retail vslue of the inventory of goods, wares and
%:: rchandise to be offered at such sale based on the inventory used
~}applicant's most recent federal income tax return adjusted for
,'. s and purchases.
~'JJP) If tbe application is for a license to conduct a "sale of goods
. , . d'aged by fire, smoke, or water" and the applicant waS not the
~ec at the time when the goods, wares. and merchandise to be
Ijffered at the contemplated saIe were damaged, he shall attach to the
"'d application copies of the bilI of sale and all other documents
. ~ected with such transfer obtained by him from the previous
J er of such goods, wares and merchandise.
:(10 If the application is for a license to conduct a "defunct
,,'~ iness sale." and the applicant was not the owner of the goods,
:,_ .,aI\d merchandise to be offered at the contempla~d sale at the
.. ~:Qf occurrence of the circumstances warrant.i.D.g the termination
~~h business, be shall attach to the application copies of the bill
;illaJe and. the official appraisal made by the trustee, receiver,
19nee for benefit of creditors, referee in bankruptcy, or the person-
"representative of a decedent,
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~583
~584
.-,
,,' ,\.,'
GENERAL BUSINESS~l
~:~
(12) A statement that no goods, wares and merchandise"!-',
added to the inventory after the application is made. '. ,i'l~
(13) A statement that all goods, wares and merchandise iti;'&t
in such inventory have been pun;hased by the applicant for r~~ -
orders without cancellation privileges and that said inventory ,
prises no goods. wares and merchandise purchased on consi "
, , Cit.U]
(14) A statement that no goo<k. wares and merchandise U~'-I'
the inventory have been the subject of a licensed sale cq~~t
within one year prior to the date of the application. unless they,:'
damaged by fire. smoke, or water while in the possession:",-
applicant. '''~:~''
(e) Upon compliance with the foregoing and subject to ~';,r.
sions of subdivision (a) of section., five hundred eighty-sev~~'
licensing authority of the appropriate city, town or village hi-,
the sale is to be held shall. within forty-eight hours after sub ..' .'
of the application to it, exclusive of Saturdays, Sundays andrp
holidays, issue a license to conduct the sale which is the subj"
tbe application. dr'
(Added L.1968, c. 435, ~ L)
,_G;UUT OF BUSINESS
,~9:-F
,"'. onment of a business location; nor shall this article apply to the
~gpersons:
q::-:,
. .1Per.;ons acting pursuant to an order or process of a court of
- '~tent jurisdiction;
". ''''':
;' Jrsons who' are required to file an accounting with a court of
~~~t jurisdiction; , .
(: .",. . ' . '
~ltisons acting in ,accordance with their- powers and duties as
"~.;o~~ers; ".
- ~ - ~ .... (
. ""~, publisher or employee of a newspaper, magazine, or any
,r'~r.or employee of a radio or television broadcasting station,
_tl>iJ.blishes or broadcasts any such advertisement. in good faith
, d\lt'1knowledge of its faIse, deceptive and misleading character.
"thout;knowfedge that the provisions of this article have Dot been
~ri~& with; .' '
~'~.~y duly licensed auctioneer, selling at auction;
'~y insurance corporation, or any assoCiation, firm or corpora.
T:ihe controlling interest in which is owned by any insurance
,- ation or corporations, which. pursuant to the terms of a policy
'o1it:ies of insurance, acquires title in or to any goods. wares or
"')u~ndise damaged by fire. smoke, water or otherwise, and which
., 'ses and sells such goods, wares and merchandise 'as salvage.
$l1~t~19158. c. 435.9 1.)
Library References
Amertc.an Dlpit System
CUl1lnuner protection ~tatutes genemlly. see Consumer Protection $1>1 ef~',.
~ 0d;
, License requireffii!Dt tD enga.ge in certain occupations or adivities, se;:, :.-
~39.39_ ,,' i"l*,~
HneyclDpedla
, Consumer protecli[lll statutes genera.lly. see C.J.S. Credit RepDrting
Consumer Protection ~ 23 et seq.
License t'eqWrement to engage in certain occupations 01" activities,
Ucenses ~ 30 el seq.
WESTIAW ReIe8rch
.:~ .-. -
l~onsurn.er protection statutes generally. see Consumer Protection *"1 el seq., 4 to
~'1 6.
Jkn.se requirement to engage in certain occupa.tions or activities. see Licenses
. $=>39.39.
Consumer protecntm cases: 92hkladd key number},
Ucense.s cases: 1l8k[add key number].
a
., '. 'iiumel" protection sta'tuks !!,eJJel'alIy, see C.J.S. Credit Reporting Agencies;
-, ~'i..Consu,mer Protection 9 23 et seq.
." , ,1ll1ll:: I'e,quirement to engage in certain occupatiom or Ilctivities, see CJ .S.
-:~.~_,Licensrs 9 30 et seq.
,.:' - WReseen:h
~lUI1er protection CB!ies: 92bk[add key number).
., ~s-es cas~: 238k[add key number].
227
I 584. Exceptions ,
The provisions of this article shall not apply to any sale 'adv ~,~
as an "alteration sale," "remodeling sale," "clearance sale:' us:
stock liquidation sale," "floor sample sale," "inventory tecll.(
sale," "special purchase, sale;' or any other advertising or de'.~
tion by any other expression or characterization simllar' to any' ,
foregoing giving notice to the public that the sale will not pr<<:e~i;f~
226 '
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229
::~OUT OF BUSINESS i 587
.$~
., . dise not included' in the inventory accompanying the appli-
",'-;.rthe ,goods, wares and merchandise to be sold at such sale
- .' clearly and distinctly segregated. marked or identified, and
!":~d, if at all. so that. both on display and in advertising, such
. - f..wares and merchandise may be readily distinguished from
"-,goods. wares and merchandise and their identity readily ascer-
.LAny commingling of such goods, wares and merchandise
l~er goods, wares and merchandise of the,licensee in such a
#as to cause them to lose .their separate identity. either on
:~t9r in advertising. shall be unlawful and any license issued
~- ;}for such sale shall thereupon become void.
, L.H68, c. 435, ~ 1.)
~ 585. Branch stores and warehouses .r-
'.
If the applicant for a license hereunder owns, conducts or 0:' .
mOre than one store, or a warehouse in connection with such;-
or stores, . the license issued will apply only to the one siQ""
warehouse' for which it was issued, and no other store, brari'Q
warehouse may advertise or represent in any way that it is c()
ing with or participating in any way in the licensed sale. n~r-"
store licensed pursuant to this article or' any person adve ":
represent that any other store or warehouse is cooperating 'Wi
participating in the licensed sale. The licensed sale conducti
any store of a chain or group of stores shall be conducted sol'" .
the location of the store for which the license was issued
goods, wares or merchandise shall be brought. from any otheI<.' ~
and placed on sale at the store licensed pursuant tothish"
(Added 1.1968, c. 435,9 l.) ,;f.ti'
. HiJitorlcal and Statutory Notes
EJl'eetfve Date. Section effectiv.e Sept.
1, 1965, pursuant tD L.1968. c. 435, ~ 3.
iL Historical and Statutory Notes
. ,-. D~te. Section effective Sept.
,r"urwant to L.196B, c. 435, ~ J.
.-~l
Library References
, . ~ Digest System
~...~l/.t : _
't~er protection statutes geneItl.Uy, KC Consumer Protection 0- I etseq., 4 to
--... .6.
. ,~nse requirement tlJ engage in certain occupations or activities. see 'Licenses
l7:r! 0-39.39.
.,~Il .
:,~er protection Sllltnte~ generally, see C.J.S. Credit Reporting' Agenciesi
~o : Consumer Prorection ~ 23 et seq.
..~~e requirement to engage in certain occupatioM or actitoities, see C.J.S.
o. .~. Licenses!j 3 [J et s~q.
. ~ Raean:h
Ubruy References
AmeritlllD Dlpst Sj&tenl ,,j:'
. r~
cons~r protection statutes generally, see Consumer Protection '8=>1 et ~r
License requirement to engage in certain occupations or activities, see I1:'
*"39.39. .:!
HncydopedJlI ".,'i
Consumer prole-ctloll statutes generally, see CJ.S. Credit Reporting i~
Consumer Protection!t 23 et seq. .
license. requirement to engage in certain occupations or activities, 5ee':
l!censC1i!j 30 et seq, . ,
. . ~5
WESTlAW Resean:b . ~ ~
;1.
. liii1irner protection cases: 92hk(add key number].
'cerlses cases: 23Bkladd key number].
'-I
,f,)f
.. :7.' Investigation of application; grounds for denial; re\l'oca-
.. j; , tion of license
~'I .
.~Upon receipt of theapplicatioh, the licensing authority of the
.pftate city. town or village in which such'sale is to be held may
:'oF cause to be made an examination into any ot" all the facts
.: ed in the application and inventory in relation to the pro-
_,~ale; A license shall be denied or refused if anyone or more of
.~owing facts or circumstances is found to exist:
.That the appacant is ,not the true owner of the goods. wares
" :erchandise to be sold.
Consumer protection cases: 92 hk[add kq number].
Licenses cases: 23U[add key number].
g 586. Substltullon, addition and commtngllng of goods;.. .:r,
. void; certain purchaset prohibited":;.,
.,110
(a) Any substitution for or addition to goods described ',-
inventory filed pursuant to this article. or any change in the. ,.. ,
place of a sale conducted pursuant thereto, shall be unlawful arid.
license issued for such sale shall thereupon become void. Cd':
(b) Where an applicant, conducting a sale licensed undlt.,
article, also conducts a business of selling other goods. w~
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~ 587 . GENERAL BUSINESS'~
Aif,:
,"
(2) That the applicant has not been the owner of the bl'
advertised or described in the application for a license hereun . :
a period of at least six months prior to the date of the applicatio' ,
if the applicant be a corporation or association.. controlling'ill.~
in the corporation or association bad been transferred wi .:"
months prior to the date of the application for a license her"'~
except-- i~'
(i) Where the application is for a license for a "sale of.J.-.
damaged by fire, smoke, or water," or a "defunct business sale;r~;.
the inventory liSted in the application contains only those .:' .
wares or merchandise which were on the premises at the time' "
occurrence of the circumstances warranting tbe granting of a .. on
hereunder; .
(ii) Upon the death of a person doing business in the Stat~.1
representatives of his estate, or his or her heirs. distributes, dey:, , .
legatees, or their successors and assignees. shall have the 'n",
apply at anytime for a license hereunder; ..,~
(ill) Where a business is required or compelled to be disco,:t! ~ '
because the premises upon which it is being conducted have '.,~
. taken by eminent domain or because the premises must be wa',
pursuant to legal or judicial proceedings. . ,.d;
(3) That in the case of a "closing out sale," the applicant, eidl:
owner, partner, member of an association. or principal stoekb'.
of a corporation. was granted a prior license hereunder withJn.;--=
". "o_Lr.'..,
year preceding the date of the filing of the application. ':~
applicant, "Within one year prior to the date of filing of the ap'-~'.
tion, has conducted a sale in connection with which he adverti$li'
represented that the entire business conducted at the p~
location for which the license is sought was to be dosed .Q"
terminated. ',J1..t
(4) That the inventory contains goods. wares or merchandisii:<
purchased by the applicant for resale on bona fide orders wi....
cancellation privileges. . ?::
(5) That the inventory contains goods, wares or merchand.iJ,>~"
chased by the applicant on consignment, except if the cons.!."
goods. wares or merchandise have been damaged while, .i#'
appliciUlt'S actual possession. .~~~.
(6) That the applicant bas within one year prior to the filingf:~,.
application been convicted of a violation of this act. ,,'I~~~
(7) That the goods, wares or merchandise as describedf"'~
inventory were transferred or assigned to the applicant prior,,tij
230 ..~
",:OUTOF BUSINESS ~ 587
.g;.F
;~f the filing of the application and that said transfer or assign-
""was not made for a valuable. and adequate consideration.
Jfthat in the case of a "closing out sale" or a "defunCt bus.ness
~':'othe inventory contains goods, wares or merchandise purchased
,_ e applicant or added to his stock in contemplation of such sale
.Iior the purpose of selling the same at such sale. Any unusual
.' ase or addition shall be presumptive evidence. that such pur-
. '. or additions were made in contemplation o~ such sale and for
~pn'rpose of selling the same at such sale.
. f'That any representation made in the application is knowingly
.[~ -
e.~,
)1" Revocation. The licensing authority shall re~oh any license
.~d under the provisions of this article if, after investigation. it
detennine:
1),. That any sale by the applicant bas been or is being conducted
mation of any provision of this article, or;
)1That the applicant has made any material misstatement in his
.; tion for said license. or;
. tThat the applicant has knowingly failed to include in the
.~ .tory, filed with this application. all goods, wares or merchan-
. uired to be contained in such inventory, or;
)lJ'hat the applicant has added o~ petIDitted to be added to said
,';or offered or permitted to be offered at said sale, any goods,
"~so or merchandise not described in the original application and
~~~ :
) That the applicant made or permitted to be made any false.
.eading or deceptive statements, . whether written or oral, in
. 'sing said sale, or in displaying, ticketing, or pricing goods.
or merchandise offered for sale. .
'~i.Any complaint filed with the licensing authority co~cerni~g- any
."on of this article shall be in writing and duly verified by the
~~ainant. .
~-If the licensing authority shall revoke any llcense' pursuant to
rj)visions of subsection (b), it shall serve notice. of such revoca~
)lpon the licensee withUi twenty-four. hours of, the revocation.
il.ce of revocation shall be served on the licensee.. iD. the same
,_ er as a summons as prescribed by the civil practice law and
.:'or by registered or certified mail, return: receipt requested. The
". of the licensee to discontinue said sale upon receipt of such
,tie shall constitute a violation of this article.
:ed L.1968, c. 435, 9 1.)
231
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