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

                                 5227--A

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 27, 2009
                               ___________

Introduced by Sens. DILAN, DIAZ, HASSELL-THOMPSON, KRUEGER -- read twice
  and ordered printed, and when printed to be committed to the Committee
  on Transportation -- recommitted to the Committee on Transportation in
  accordance  with  Senate  Rule 6, sec. 8 -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08614-02-0
              

S. 5227--A                          2

thirty months, be in a sum of not more than  one  thousand  dollars  for
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

S. 5227--A                          3

upon the registrant or unregistered  repair  shop  MAY  BE  WAIVED  UPON
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.