Macy's false shoplifting inquiries

[Steve59]

Dear Aaron/others,

I have a couple of issues regarding Macy's that I would appreciate your advice with.

1. Nearly four years ago my girlfriend was accused of shoplifting in NYC. In actuality, she placed some unpaid items of clothing in her personal bag(for convenience) so that she could use the restroom. She was then going to pay for these items later. However, security stopped her outside of the restroom and took her to their office where she was placed under arrest. She'd never been in trouble in her life before or since. She was very scared and in a state of panic. She told her story to the "public defender(?)" who suggested she try to fight this charge. However, my girlfriend just wanted so badly to quickly get out of this horrible situation and get home. After spending the night in jail, she paid a fine and was released. The defender told her that the record would be sealed.

Is this correct?

2. Macy's apparently uses a law firm to try and collect for the items that were taken(although the items found on my girlfriend were confiscated by security).
This lawfirm has been calling her home quite often(weekly/daily) for almost four years leaving recorded messages to contact them. Do they have the right to attempt collection on these items which were not stolen and taken by security? Is there a statute of limitations?
Should she just pay whatever they ask or should she call them and try and explain her story followed up with a letter?

Thanks so much in advance for any advice/tips you can give.

[aaron]

The defender told her that the record would be sealed.

Is this correct?

You would have to check with the court.

2. Macy's apparently uses a law firm to try and collect for the items that were taken(although the items found on my girlfriend were confiscated by security).
This lawfirm has been calling her home quite often(weekly/daily) for almost four years leaving recorded messages to contact them. Do they have the right to attempt collection on these items which were not stolen and taken by security? Is there a statute of limitations?
Should she just pay whatever they ask or should she call them and try and explain her story followed up with a letter? [/quote]
New York's Civil Recovery Law provides:

1. When used in this section, the term "mercantile establishment" shall mean a place or vehicle where goods, wares or merchandise are offered for sale or a place or vehicle from which deliveries of goods, wares or merchandise are made.

2. When used in this section, the term "larceny" is an act heretofore defined or known as common law larceny by trespassory taking as defined in paragraph (a) of subdivision two of section 155.05 of the penal law committed against the property of a mercantile establishment.

3. When used in this section, the term "emancipated minor" shall mean a person who was over the age of sixteen at the time of the alleged larceny and who was no longer a dependent of or in the custody of a parent or legal guardian.

4. In any proceeding brought under this section the burden of proof shall be by a preponderance of the evidence.

5. An adult or emancipated minor who commits larceny against the property of a mercantile establishment shall be civilly liable to the operator of such establishment in an amount consisting of:

(a) the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed fifteen hundred dollars; plus

(b) a penalty not to exceed the greater of five times the retail price of the merchandise or seventy-five dollars; provided, however, that in no event shall such penalty exceed five hundred dollars.

6. Parents or legal guardians of an unemancipated minor shall be civilly liable for said minor who commits larceny against the property of a mercantile establishment to the operator of such establishment in an amount consisting of:

(a) the retail price of the merchandise if not recovered in merchantable condition up to an amount not to exceed fifteen hundred dollars; plus

(b) a penalty not to exceed the greater of five times the retail price of the merchandise or seventy-five dollars; provided, however, that in no event shall such penalty exceed five hundred dollars.

7. A conviction or a plea of guilty for committing larceny is not a prerequisite to the bringing of a civil suit, obtaining a judgment, or collecting that judgment under this section.

8. The fact that an operator of a mercantile establishment may bring an action against an individual as provided in this section shall not limit the right of such merchant to demand, orally or in writing, that a person who is liable for damages and penalties under this section remit the damages and penalties prior to the commencement of any legal action.

9. In any action brought under subdivision six of this section, the court shall consider in the interest of justice mitigating circumstances that bear directly upon the actions of the parent or legal guardian in supervising the unemancipated minor who committed the larceny.

10. An action for recovery of damages and penalties under this section may be brought in any court of competent jurisdiction.

11. The provisions of this section shall not be construed to prohibit or limit any other cause of action which an operator of a mercantile establishment may have against a person who unlawfully takes merchandise from the mercantile establishment.

12. Any testimony or statements of the defendant or unemancipated minor child of the defendant or any evidence derived from an attempt to reach a civil settlement or from a civil proceeding brought under this section shall be inadmissible in any other court proceeding relating to such larceny.

The limitations period is probably six years, under New York Civil Practice Law & Rules Section 213. (You can review the various limitations periods here.)

[Steve59]

Hi Aaron,

Thanks for the response and information. I guess it does fall under the 6 year statute of limitations, although I'm not clear on this.

Anyway, I called many law firms regarding the collection issue. Only one seemed to offer advice over the phone. An attorney(who was a nice guy and spoke to me at some length) told me that these stores often employ a law firm or collection agency to attempt recovery value of stolen merchandise REGARDLESS of the fact that the merchandise was recovered by the retailer. He said that they would not be able to recover under NY law and that this type of recovery has been litigated unsuccessfully in the past. Therefore, he suggested not to worry about it and not to pay it.
He sounded like an experienced and knowledgeable attorney.
Does this sound logical?
Also, at what point if any, would repeated phone calls for collection over several years, be considered harrassment?

Thanks again.

[aaron]

He sounded like an experienced and knowledgeable attorney.
Does this sound logical?

He's a New York lawyer; I have to defer to his judgment on a point of NY law.

Also, at what point if any, would repeated phone calls for collection over several years, be considered harrassment?

You may wish to review this article on the fair debt collection practices act.

[fight or flight LP]

Don't conceal anything that is unpaid for.

She needs to pay this and be done with it, they can destroy her credit also