S T A T E   O F   N E W   Y O R K
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                                 4806--A

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 6, 2009
                               ___________

Introduced  by M. of A. PHEFFER -- read once and referred to the Commit-
  tee on Transportation -- recommitted to the Committee  on  Transporta-
  tion  in  accordance  with  Assembly  Rule  3,  sec.  2  --  committee
  discharged, bill amended, ordered reprinted as amended and recommitted
  to said committee

AN ACT to amend the vehicle and traffic law, in relation to the  payment
  of restitution by registered and unregistered repair shops

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

  Section 1.  Subdivisions 2 and 3 of section 398-e of the  vehicle  and
traffic  law,  as amended by chapter 634 of the laws of 1980, paragraphs
(a) and (c) of subdivision 2 and paragraphs (a), (d) and (e) of subdivi-
sion 3 as amended by chapter 732 of the laws of 1987, paragraph  (b)  of
subdivision  2  as  amended by section 2 of part OO of chapter 59 of the
laws of 2009 and paragraph (c) of subdivision 3 as  amended  by  chapter
356 of the laws of 2001, are amended to read as follows:
  2. Civil penalty; suspension for failure to pay. (a) The commissioner,
or  any  person deputized by him, may, by order, require a registrant or
an unregistered repair shop to pay to the people of this state a penalty
as hereinafter provided. Such penalty may be imposed in addition  to  or
in  lieu  of revoking or suspending the certificate of registration of a
registrant in accordance with the provisions of this article, or such  a
penalty  may  be imposed upon a finding that a registrant or an unregis-
tered repair shop: (i) has been grossly negligent in the performance  of
any  repair  or  adjustment covered by this article; or (ii) has grossly
overcharged for such repair or adjustment.
  (b) (I) Such penalty for a first violation  shall  be  in  a  sum  not
exceeding  seven  hundred fifty dollars for each violation found to have
been committed, and for a second or subsequent violation not arising out
of the same incident both of which were committed  within  a  period  of
thirty  months,  be  in  a sum of not more than one thousand dollars for

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08614-03-0
              

A. 4806--A                          2

each violation found to have  been  committed;  provided,  however,  the
penalty  for  each and any violation of paragraph (g) of subdivision one
of this section found to have been committed shall be no less than three
hundred  and fifty dollars and no more than one thousand dollars, except
that if a finding of financial loss has been made pursuant  to  subdivi-
sion  three of this section, the amount of such penalty may be increased
by the amount of financial loss so  found.    (II)  NOTWITHSTANDING  THE
PROVISIONS OF SUBPARAGRAPH (I) OF THIS PARAGRAPH, IF A FINDING OF FINAN-
CIAL  LOSS  HAS  BEEN MADE PURSUANT TO SUBDIVISION THREE OF THIS SECTION
AND A REGISTRANT OR UNREGISTERED REPAIR SHOP FAILS  TO  COMPLY  WITH  AN
ORDER  TO PAY RESTITUTION IN THE TIME AND MANNER PROVIDED BY SUCH SUBDI-
VISION, THE COMMISSIONER SHALL, BY ORDER, INCREASE  THE  AMOUNT  OF  THE
PENALTY ASSESSED PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH BY:
  (A) THE SUM OF AN ADDITIONAL AMOUNT NOT TO EXCEED FIVE HUNDRED DOLLARS
AND  THE AMOUNT OF FINANCIAL LOSS SO FOUND, IF THE AMOUNT OF THE PENALTY
IMPOSED PURSUANT TO SUBPARAGRAPH (I) OF THIS PARAGRAPH DID  NOT  INCLUDE
SUCH FINANCIAL LOSS; OR
  (B)  AN  ADDITIONAL  AMOUNT NOT TO EXCEED FIVE HUNDRED DOLLARS, IF THE
AMOUNT OF THE PENALTY IMPOSED PURSUANT TO SUBPARAGRAPH (I) OF THIS PARA-
GRAPH INCLUDED SUCH FINANCIAL LOSS.
  (c) Upon the failure of a registrant or an unregistered repair shop to
pay such penalty, or, where the order so  [permits]  REQUIRES,  to  make
restitution  as  provided  in  subdivision three of this section, within
thirty days after the mailing of such order, postage prepaid, registered
or certified, and addressed to the last known place of business of  such
registrant  or  unregistered repair shop, unless such order is stayed as
provided in subdivision three of section three hundred ninety-eight-f of
this [chapter] ARTICLE, the commissioner may revoke the  certificate  of
registration  of such registrant or may suspend the same for such period
as he may determine or may seek to recover unpaid civil penalties  in  a
civil  action  in the name of the commissioner. Civil penalties assessed
under this subdivision shall be paid to  the  commissioner  for  deposit
into the state treasury.
  (d)  In  addition, as an alternative to such civil action and provided
that no proceeding for judicial review shall then  be  pending  and  the
time  for  initiation of such proceeding shall have expired, the commis-
sioner may file with the county clerk of the county in which the  regis-
trant is located a final order of the commissioner containing the amount
of  the  penalty assessed PURSUANT TO PARAGRAPH (B) OF THIS SUBDIVISION.
The filing of such final order shall have the full force and effect of a
judgment duly docketed in the office of such clerk and may  be  enforced
in  the  same manner and with the same effect as that provided by law in
respect to executions issued against property upon judgments of a  court
of record.
  3. Restitution; assessment. (a) Upon a determination that a registrant
or  an  unregistered  repair  shop  has done or failed to do any act for
which suspension of the registrant's registration  or  a  civil  penalty
against the registrant or unregistered repair shop could be imposed, the
person making such determination may make a finding of financial loss to
any complainant or complainants resulting from the actions of the regis-
trant  or  unregistered  repair shop. The person making such finding may
provide that if the registrant or unregistered repair shop makes  resti-
tution  to  the complainant or complainants for the amount or amounts so
found, that payment of such restitution may be substituted  in  lieu  of
any  suspension or civil penalty, or a specified portion thereof imposed
upon the registrant or unregistered  repair  shop  MAY  BE  WAIVED  UPON

A. 4806--A                          3

PAYMENT OF SUCH RESTITUTION.  However, a finding of financial loss shall
only  be  made  if  the  complainant  (i) agrees to accept the amount so
found, if offered by the registrant or  unregistered  repair  shop,  and
(ii) is not a party to any litigation which is pending or which has gone
to judgment in relation to the same matter in any civil court.
  (b)  The  amount  of financial loss which may be found and proposed as
restitution shall be limited to an amount necessary to repair the  vehi-
cle or vehicles in question and/or any amount of overcharge which may be
found.  Neither  punitive  nor incidental damages may be included in the
finding of financial loss.
  (c) If payment of restitution to the  complainant  is  [authorized  in
lieu  of  all or a portion of a suspension or civil penalty] ORDERED, in
order for the registrant or unregistered repair  shop  to  exercise  the
option  to [make such payment] AVOID ALL OR A PORTION OF A SUSPENSION OR
CIVIL PENALTY, such payment must be made by means of a  certified  check
or  money  order payable to the complainant or complainants delivered to
an office of the department as directed by the commissioner or his agent
within thirty days of the date of notice of A FINDING OF FINANCIAL LOSS,
suspension and/or civil penalty. Upon receipt of such certified check or
money order, the department shall forward the same to the complainant or
complainants. In the event that the registrant  or  unregistered  repair
shop  should  fail  to  make  payment for restitution within such thirty
days, but, at a later time, pays  such  civil  penalty,  the  department
shall  deduct  from  such  civil penalty payment the amount assessed for
restitution, and shall mail a check for such amount to  the  complainant
or complainants.
  (d)  If  payment of restitution [may be substituted in lieu of a civil
penalty or portion of a civil penalty] IS ORDERED, and the registrant or
unregistered repair shop [does not exercise the option]  FAILS  to  make
such  payment,  the  civil penalty [becomes] SHALL BE due as provided in
subdivision two of this section and the provisions of  that  subdivision
relating  to  suspension of registration and recovery of civil penalties
shall apply.
  (e) Any payment made in compliance with such a  finding  of  financial
loss  shall  not  preclude  any civil action which may be brought by the
complainant, registrant or unregistered repair shop, and any such  find-
ing  may  be  considered  but shall not be binding upon any court before
which any such action is brought.
  S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become  a  law;  provided,  however,
that effective immediately, the addition, amendment and/or repeal of any
rule  or  regulation necessary for the implementation of this act on its
effective date are authorized to be made on  or  before  such  effective
date.