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

                                  8953

                          I N  A S S E M B L Y

                               (PREFILED)

                             January 4, 2012
                               ___________

Introduced by M. of A. WEPRIN -- read once and referred to the Committee
  on Transportation

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
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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
              

                      [ ] is old law to be omitted.
                                                           LBD00724-01-1

A. 8953                             2

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 PARA-
GRAPH, IF A FINDING OF FINANCIAL LOSS HAS BEEN MADE PURSUANT TO SUBDIVI-
SION 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 SUBDIVISION, 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
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

A. 8953                             3

(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.