012
MAY-05-2010 WED 12:04 PM VERGILIS,STENGER,ROBERTS
FAX NO. 8452982842
P. 01/05
',.,r
GERALP A. VBRGlLIS'
KENNETH M. STENOER
ALBERT P. R02SRTS
THOMAS R. PA VIS
STEPHEN e, OIAMONI)<4l....
JOAN F. GARRETT"
VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND, LLP
ATTORNEYS AND COUNSELORS AT LAW
J 136 ROUTE 9
WAPPINGBRS fALLS, NEW YORK 12590
(845) 298-2000
f'AX (845) 298.2842
www.vsrp.com
e~mnjl: info@vSJp.com
OF COUNSEL:
KAREN MacNISH
LeGAL ASSISTANTS:
AMYE.PECARLO
SANDRA A. OAKLEY
SARAH SALISBURY
CLOSINO COORDINATOR:
MARIA JONBS
KEVIN T. McDERMOTT
ANGEl... I. f"ALC6N
ANTHONY M. DEFAZIO'"
JAMES P. HORAN'"
LISA M, COBS
M, ELLEN O'SULLIVAN
--
POuGHKEEPSIE OFFICE
276 MAIN STREET
POOGHKEBPSIE. NY 12601
(845) 4S2~1046
NBWBURGH OFFICE
372 FULLERTON AVENUE
NEWBURGIi, NY 1255{)
(845) 567.3783
· AOMITTIiOTOPRAcrlCE
, iN NY & FLA.
.. AOMl1'mO TO PRACTICE
IN NY & CONN.
... ADMrrrF.O TO PR"cllCE
IN NY 41; N.J
.... ADMITTED 'ro PRACT[C~
IN NY, FL &< M/I.
May 4, 2010
fR1 ~CC~llW~[Q)
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 Sales'\ 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 truly yours,
VERGILIS, STENGER, ROBERTS, DAVIS & DIAMOND, LLP
Clkb~L+ p L~bLL-'u. / ~CD
ALBERT P. ROBERTS
APR/so
Enclosures
cc: Hon. John C. Masterson, Town Clerk
O:iWappingcrlTown Bolll'll\l-<:ienc:ralTB\2010\0S0410 letter to Colscy rG Going Out of Business Slde!l.doc
~582
225
GENEIlAL BUSINESS,.- '.
Art.r;~ '
'::, -..
. ~G'OUT OF BUSINESS I 583
19.i.P
.~ :-'. ~
.. r{~The .- reason for the urgent and expeditious disposal of the
ds; wares or merchandise to be offered at such sale
.~. .
. ,~l~ statement of the descriptive name of the sale.
l.'.cc
~J)fthe application is for a "closing out sale" or a "defunct
~..:,ess sale," a statement whether the business is to be termitlated
,e~'anently or reopened at another location; the location of the
, .' "'ses at which the business is to be reopened; whether the
. "lic.alit intends to reswne the operation of the business upon the
. fflllnation of the sale; and the name or designation under which
.~ ch business is to be resumed.
.......,
.' l~(?l A full, complete, detailed, and itemized inventory of the goods,
!~'s,. and merchandise to be offered at such sale as disclosed by
::f1:~cant' s records, which inventory shall:
oJi} .Itemize the goods, wares and merchandise to be offered for sale
'."d,;contain sufficient information concerning each item, including
"'udntity, make, brand name, model and manufacturer's number, if
_~, to clearly identify it;
~:J.i,i) List separately any goods, wares and merchandise to be-offered
~::lt5t~ sale which were purchased and received during a ninety-day
-!IDod immediately prior to the date of making application for the
. ~(;ense;
2{ill) List the total retail value of the inventory of goods, wares and
<.. rchandise to be offered at such sale based on the inventory used
;"~pplicant's most recent federal income tax return adjusted for
,-,. d h
.~_.:_es an pure ases.
,/11p) If tbe application is for a license to conduct a "sale of goods
_ . v"'iiged by fire, smoke, or water" and the applicant waS not the
'er at the time when the goods, wares. and merchandise to be
red at the contemplated sale were damaged, he shall attach to the
.. application copies of the bilI of sale and all other documents
,,-r,nected with such transfer obtained by him from the previous
r of such goods, wares and merchandise.
.(10 If the appUcation is for a license to conduct a "defunct
.>ness sale." and the applicant was not the owner of the goods,
.-., .,~d merchandise to be offered at the contemplatc;:d sale at the
_ ,,:Qf occurrence of the circumstances warranti.i:1g the te~ation
:;m!!h business, he shall attach to the application copies of the bill
,'llale and. the official appraisal made by the trustee, receiver,
ignee for benefit of creditors, referee in bankruptcy, or the person-
, ,representative of a decedent.
Ubnu-y Referen'oos'J;:I";
Amertc:an DJpst System V~,:',~
Consumer pro1t!cliDn Slatlltes; ad\'ertising and labeling regulatiDll$, see corl~.
Protection eo- 1 et seq., 1. . '.. ~
Encyclopedia
~:~
Consumer protection statutes; advertisinjl and labeling regulations. see c9z
Credit Reporting Allencies: (Amsumer Protection!i~ 13 et seq., 59.
WESD..-\W Reearch
Comumer pro!ection cases: 92hk[Eldd key number].
t 583. Application requirements 'i
; L.
(a) Any person desiring to conduct any sale as defined in set~o
five hundred eighty-one shall make a written application under &t' .
to the licensing authority of the appropriate city, town or vi1I&gel:.
which the sale is to be held. .
(b) If the application is for a "closing out sale" or a "defun'"
busmt:ss sale," it s~all be filed at least fifteen days prior to the~'.-di.
an which such sale 18 to commence. -','
ee) H the application is for a "sale of goods damaged by ~
smoke or water," it may be made at any time prior to the dateAt
which such sale is to commence. ',:
l~
(d) Such application shall set forth and contain the follo'-'~
information: (1) The name and address of the applicant, whethefdiil
applicant is the true owner of the goods. wares or merchandise to~b,
sold, and if the applicant be a partnership. the names and ad ."
of aU 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 aUlQ
officers of the applicant and whether controlling interest in.~'
eOlporation or association was transferred within six months prib\\:
the date of the filing of the application. c' .1r .
(2) The name and address of the person or persons who will~.
charge and responsible for the conduct of such sale. t,
''"i~.
(3) The exact address of the place at which the proposed sale.;'.
be conducted and the length of time the applicant has been enga ':..
in business at such location. : "t
(4) The date on which it is proposed to begin the sale.
(5) The nature of the occupancy whe~ such sale is to be h'~
whether by lease or otherwise, and the effective date of termin~ :~
of such occupancy. .
224
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~583
'584
"
,-;
." c\.: ~
GENERAL BUSINESS~.
Artc;:c
(12) A statement that no goods, wares and merchandise'T~..
added to the inventory after the application is made.
(13) A statement that all goods, wares and merchandise iP;~t
in such inventory have been pun::hased by the applicant for r~~~ -
orders "vithout cancellation privileges and that said inventory ._
pnses no goads, wares and merchandise purchased on consi"
.' :.i.U1
(14) A. statement that no goods, wares and merchandise li~'l"
the inventory have been the subject of a licensed sale CR~~t
within one year prior to the date of the application, unless they
damaged by fire, smoke, or water while in the possessioJl:"~'
applicant. .,-~:~.
(e) Upon compliance with the foregoing and subject to ~'Ii~.
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. ,lt~
(Added L.1968, c. 435, ~ 1.)
,....onment of a business location~ nor shall this article apply to the
c.: ':"gpersons:
Jjjernons acting pursuant to an order or process of a court of
""'~~t jurisdiction;
t:~PsortS who' are required to file an accounting with a court of
~~ent jurisdiction; . .
t: .,L to: ~, . - . . .
.~ p..sons acting in accordance with their powers and duties as
. ~ ~~i~~s:ers; (
. '. 'y: publisher or employee of a newspaper, magazine, or any
"b'bor employee of a radio or television broadcasting station,
.'!PiJ.blishes or broadcasts any such advertisement. in good faith
itt1knowledge of its false, deceptive and misleading character,
Jhout;knowledge that the provisions of this article have not been
r'Ued-with; '. .
~';ky duly licensed auctioneer, selling at auction;
.,~y insurance corporation, or any assoCiation, firm or corpora-
T~the controlling interest in which is owned by any insurance
"ration or corporations, which, pursuant to the terms of a policy
'b1ibies of insurance. acquires title in or to any goods, wares or
., AAPdise damaged by fire, smoke, water or otherwise, and which
"'ses and sells such goods, wares and merchandise' as salvage.
~~1:1968. c. 435,9 1.)
Library References
Amerlcan DIp5t System
C(Jfllluroer protection statures general!}'. see Consumer Protection"'. el'II6'.,
6. ,,',if'
~ License requirement to engage in certain occupations or adivities, se;:, ..
e-39.39. .';.1..
EncyclDpedla
Historical and Statutory Notes
. . Date. Section effective Sept
968. ~t to L.1968. c. 435, 9 3.
~TJ~~~ \~~: . ..
,;;~. ,': Ubrary Refenmoes
.. .~ ~ Dfgest Sys1em
- ~-'-".
t:onsumer protectioo statutes ienerally, see ConSUJDel" Protection '1==>1 et seq.. 4 to
"''1 6,
:~e requirement to engage in certain occupatiDDS or activities, see Licenses
. oS=>3\U9.
Consumer protection statutes generally, see C.J.S. Credit Reportfng
Consumer Protection ~ 23 et 5eq. . .
License requirement to engilge in certain occupations 01" activities, sCP ,
Licenses!i 30 etse"). .,j:; :
WES'I'J.A. w ae.earch
Consumer protection cases: 92hkIadd key number].
LiCCllSe5 cases; 238k[add key number].
a ..
I 584. ExceptloIl5
The provisions of this article shall not apply to any sale .adv '~'.
as an "alteration sale," "remodeling sale," "clearance sale," "s .~
stock liquidation sale," (jfloor sample sale," "inventory reaU.:
sale," "special purchase. sale:' or any other advertising or de" ~.,
tion by any other expression or characterization similar to ani.!),.
foregoing giving notice to the public that the sale wUI not prece4t!'l
226
>: '~el" protection .tutes generally. see C.J.S. Credit Reporting Agencies;
. . ~"D.Cons~er Protection!i 23 et seq.
." . }lst::: re.quirement to engage in certain occupations or Rctivities. see. C.J .S.
c:J:lf; ':Ucens~ ~ .30 etseq. '.
.i ." W Rilllean:h
@Lumer protection CB5es; 92hk[add key number).
. il~IWes cases: 238k[add key number].
227
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Library References
':~OUT OF BUSINESS ~ 587
.,?i-!,
., . dise not included in the inventory accompanying the appli-
',),ithe ,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
. -I!!wares and merchandise may be readily distinguished from
~-:toocls.. wares and merchandise and their identity readily ascer-
,L,Any commingling of such goods, wares and merchandise
,tOfher goods, wares and merchandise of the. licensee in such a
~as to cause them to lose ,their separate identit)', either on
. ~'~::9r in advertising, shall be unlawful and any license issued
~. :Jfor such sale shall thereupon become void.
. L.W68, c. 435. S 1.)
-f~~: Historical and Statutory Notes
~1~ .
.. . Dl;Ite. Section effective Sept.
. !..~,uriruant to L.196B, c. 435, 9 J.
.-~i
~ 585. Br.anch stores and warehOUSeA "
r ~ ,
If the applicant for a license hereunder O\VIlS, 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~
warehouse may advertise or represent in any way that it is 4;0,
ing with or participating in any way in the licensed sale, nor"
staTe licensed pursuant to this article or any person adve i":, '
represent that any other store or warehouse is cooperating Wi,
participating in the licensed sale. The licensed sale conducte"
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 othel<'"
and placed on sale at the store licensed pursuant totbis'!;<'
(Added L.1968, c. 435,9 1.) ,;lii:"
.". .
Hl.&torlcal and Statutory Notes - -::':
Efl'wtfve Date. Section elfediv.e Sept.
1, 19'68, pursuant to L,t968. c. 435, !} 3.
.'
_, ~ DIJat S}'IItem
~'..:; lit : _ .
. ~er protection Slatutes gene mil}', see Consumer Protection $:>1 etseq., 4 to
~ & ,.
"~~rise requirement tv engage in certain occupatioJl$ or activities, see "Licenses
fui:i $:>39.39.
_'c.~a
.,~er protection statutes generally, . see CJ.S. Cn:dit RepDrlin;' Agencies;
-"b : Consumer Prota:tlOIl !2 23 et seq.
... ~e requirement to engage in certain occupations or actit<ities, see C.J.S,
'~:S.~.Licenses 9 3D et s~q.
W Raeuch
. ~er protection cases: 92hk[add key number].
';censes cases: 23Bkradd key number].
)Lr
Llbruy References
, .-
~ ~ j.=_o
J':it:
, r~~
Ccn.sumer protection statutes generally, lil'!e Consumer Protection c=>t et I,erl
6. ' ..',
License requirement to engage in certain OCCUpatiDllS or act:fvitie.s, see I1~'
*'"39.39.'
EncyclopedJa
AmeritBD D1pst SJBtem
CDnSilmer protection statutes generally, see CJ.S.
Consumer Protection!i 23 et seq.
license requirement to engage in certain oCCUp.a.tiOl1li or activities see"
licenses!i 30 etseq. '.
. . ~=
WESnAW Renan:b ,a. \:f
Consumer protection cases: 92hk[addkey number].
LicellSesaases: 23Sl:[add key nwnber].
.'0 :'.' Investigation of application; grounds for denlal~ revoca-
~i ' tion of license
~'I .
.:Upon receipt of the .application. the licensing authority of the
,pnate city, town or village in which such'sale is to beheld may
_ ,'or' cause to be made an examination into any or all the facts
',' ed in the application and inventory in relation to the pro-
,)!iale; A license shall be denied or refused if anyone or more of
. ,~owing facts or circumstances is found to exist:
,11.at the applicant is:llot the true owner of the goods, wares
i-, erchandise to be sold. u '
229
~ 586. Substitution. addition and commtngllng of gooch;. .;r.
. void; certain purchases n1"ohibitedj"
.... .,n01
(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. . " I>.J! , ~
(b) Where an applicant, conducting a sale licensed und~"i~..
article, also conducts a business of selling other goods, wan;i
228 '-
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t 587 . GENERAL BUSINESS'
Aif;;----
(2) That the applicant has not been the owner of the bu'"
advertised or described in the application for a license hereun ". .
a period of at least six months prior to the date of the applicatib" .
if the applicant be a corporation or association. controlling'in'~
in the corporation or association bad been transferred wi . ~. .
months prior to the date of the application for a license heli.'"'
except-
(i) Where the application is for a license for a "sale of~'- .
damaged by fire, smoke, or water," or a "defunct business sale;'!:,
the inventory liSted in the application contains only those: _
wares or merchandise which were on the premises at the tim<<f "
occurrence of the circumstances warranting the granting of a .; .__
hereunder; .
(ii) Upon the death of a person doing business in the state.1:
representatives of his estate, or his or her heirs. distributes, de:;-:,,'.
legatees, or their successors and assignees, shall have the'riitti:.
apply at anytime for a license hereunder;
(ill) Where a business is required or compelled to be disc;l?~ ~ "
because the premises upon which it is being conducted havel)
. taken by eminent domain or because the premises must be var
pursuant to legal cr judicial proceedings. . .. ..Jj,;
(3) That in the case of a "closing out sale," the applicant, eitli:
owner, partner, member of an association, or principal stockb ".
of a corporation, was granted a prior license hereunder witbiI\.:,
year preceding the date of the filing of the application, '~~~
applicant, within one year prior to the date of filing of the ap--~'.
tioD, has conducted a sale in connection with which he adve1"t4e.:
represented that the entire business conducted at the p~'.
location for which the license is sought was to be closed ,Q'"
terminated,
(4) That the inventory contains goods, wares or merchandisCi'::
purchased by the applicant for resale on bona fide orders wi...-
cancellation privileges, ' "\::"
(5) That the inventory contains goods, wares or merchan~~'
chased by the applicant on consignment, except if the corua..
1-
goods, wares or merchandise have been damaged while. ,',:'
appliciDlt'S actual possession. '..,
(6) That the applicant has within one year prior to the filing!:~,.
application been convicted of a violation of this act. ... il~1~
(7) That the goods, wares or merchandise as describedf', '. .
inventory were transferred or assigned to the applicant prior.,W
230
.....
"'.
..,
~l;..;
,G1:'OUTOF BUSINESS ~ 587
'g;..iJ:
;~f the filing of the application and that said transfer or assign-
~",was not made for a valuable. and adequate consideration.
~that in the case of a "dosing out sale" or a "defunCt busiDess
~':',~e inventory contains goods, wares or merchandise purchased
'_ e applicant or added to his stock in contemplation of such sale
,[for 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~ sucb sale and for
IPUrPose of selling the same at such sale.
,f'That my representation made in the application is knowingly
.(~ -
e.
j'Revocation. The licensing authority shall revo~ any license
..~ted under the provisions of this article if. after investigation, it
< ,.determine: ,
1),< That any sale by the applicant has been or ~ being conducted
marton of any provision of this article, or;
)'That the applicant has made any material misstatement in his
.; don for said license, or;
. )...Tbat 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;
d . .
},Jhat the applicant has added or penrntted to be added to said
.';or offered or permitted to be offered at said sale, any goods,
.s, 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 "..riting and duly verified by the
~ainant.
". . .
. Af the licensing authority shall revoke any license PUTSuani to
'rpvisions of subsection (b), it shall serve notice. of such revoca-
_)lpon the licensee withiti twenty-four. hours of. the revocation,
tlce of revocation shall be served on the licensee ,. iD. the same
_ er as a summons as prescribed by the civil practice law and
.:0 or by registered or certified mail, return: receipt requested, The
., of the licensee to disoontinue said sale upon receipt of such
. re shall constitute a violation of this article.
:edL.1968, c, 435, 9 1.)
231
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