S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   1380
 
                        2019-2020 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             January 15, 2019
                                ___________
 
 Introduced  by  M.  of  A.  PHEFFER AMATO, QUART, DILAN, NORRIS, CRESPO,
   NOLAN -- Multi-Sponsored by -- M. of  A.  EPSTEIN  --  read  once  and
   referred to the Committee on Consumer Affairs and Protection
 
 AN  ACT to amend the general business law, in relation to safety recalls
   on used motor vehicles

   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. The general business law is amended by adding a new section
 198-d to read as follows:
   §  198-D.  USED  MOTOR  VEHICLES; RECALLS. (A) FOR THE PURPOSE OF THIS
 SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
   (1) "DEALER" SHALL HAVE THE SAME MEANING AS PARAGRAPH A OF SUBDIVISION
 ONE OF SECTION FOUR HUNDRED FIFTEEN OF THE VEHICLE AND TRAFFIC LAW.
   (2) "USED MOTOR VEHICLE" SHALL HAVE THE SAME MEANING AS PARAGRAPH I OF
 SUBDIVISION ONE OF SECTION FOUR HUNDRED FIFTEEN OF THE VEHICLE AND TRAF-
 FIC LAW.
   (3) "STOP DRIVE ORDER" SHALL MEAN A NOTIFICATION ISSUED UNDER  49  USC
 SECTION  30118  WHICH  INCLUDES  PRECAUTIONARY  ADVICE TO STOP DRIVING A
 MOTOR VEHICLE (INCLUDING THE  VEHICLE  IDENTIFICATION  NUMBER  FOR  SUCH
 VEHICLE).
   (4) "SAFER CAR WEBSITE" SHALL MEAN ANY WEBSITE, APPLICATION, OR INTER-
 NET  ACCESSED  PLATFORM  OPERATED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY
 ADMINISTRATION, THE UNITED STATES DEPARTMENT OF TRANSPORTATION, OR THEIR
 AGENT AND/OR SUBCONTRACTOR, WHEREIN A CONSUMER MAY DETERMINE THE  STATUS
 OF ALL RECALLS ON ANY NEW AND/OR USED MOTOR VEHICLE.
   (B) IF THE INQUIRY REQUIRED TO BE PERFORMED BY SUBDIVISION (F) OF THIS
 SECTION  REVEALS  THAT THE USED MOTOR VEHICLE SUBJECT TO THE CONTRACT IS
 UNDER A STOP DRIVE ORDER, THE DEALER REQUIRED TO  PERFORM  SUCH  INQUIRY
 SHALL  NOT SELL OR LEASE ANY SUCH VEHICLE UNTIL THE DEFECT OR NONCOMPLI-
 ANCE IS REMEDIED.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD03742-01-9
              

 A. 1380                             2
 
   (C) A DEALER SHALL DISCLOSE IN ANY PRINT AND ONLINE ADVERTISEMENT THAT
 ANY USED MOTOR VEHICLE BEING ADVERTISED MAY BE SUBJECT TO A RECALL,  AND
 THAT  A  CONSUMER  MAY  OBTAIN ALL RECALL INFORMATION FROM THE SAFER CAR
 WEBSITE. TWO DAYS PRIOR TO THE SUBMISSION OF  ANY  ADVERTISEMENT  FOR  A
 USED  MOTOR  VEHICLE,  A  DEALER  SHALL MAKE AN INQUIRY ON THE SAFER CAR
 WEBSITE FOR ANY OPEN RECALLS. IF ANY OPEN RECALLS  ARE  LISTED  ON  THIS
 REPORT,  THE  DEALER SHALL EITHER CAUSE THE RECALL DEFECT TO BE REPAIRED
 BEFORE THE USED VEHICLE IS DELIVERED TO THE CONSUMER, OR CLEARLY DISPLAY
 NOTICE, IN SUCH ADVERTISEMENT, STATING THAT THE  PARTICULAR  VEHICLE  IS
 SUBJECT TO AN OPEN RECALL.
   (D)  A  DEALER SHALL MAINTAIN A LINK ON ANY WEBSITE OR ONLINE PLATFORM
 ADVERTISING USED CARS, WHICH IT CONTROLS DIRECTING THAT A  CONSUMER  MAY
 OBTAIN ALL RECALL INFORMATION FROM THE SAFER CAR WEBSITE.
   (E)  A  DEALER  SHALL  PLACE UPON ALL USED VEHICLES FOR SALE A STICKER
 AND/OR DECAL THAT INCLUDES INFORMATION THAT WILL  ALLOW  A  CONSUMER  TO
 CHECK  THE  STATUS  OF ANY RECALLS ON SAID VEHICLE THROUGH THE SAFER CAR
 WEBSITE, OR SHALL PROVIDE A MEANS  OF  CHECKING  SAID  VEHICLE'S  RECALL
 STATUS  ON  THE  SAFER  CAR  WEBSITE BY SCANNING A BAR CODE, QR CODE, OR
 VEHICLE IDENTIFICATION NUMBER, OR SHALL PROVIDE A REPORT, WHICH MAY BE A
 PRINTOUT OF THE RESULTS OF A SEARCH OF THE SAFER CAR WEBSITE  REFLECTING
 THE  VEHICLE'S  RECALL  STATUS, PROVIDED THAT ANY SUCH REPORT IS NO MORE
 THAN TWO DAYS OLD OR IS OTHERWISE ACCURATE REGARDING SAID VEHICLE.
   (F) A DEALER SHALL PERFORM, PRIOR TO, BUT NO  EARLIER  THAN  TWO  DAYS
 BEFORE, THE EXECUTION OF THE SALE OR LEASE OF ANY USED VEHICLE, A SEARCH
 USING  THE  VEHICLE IDENTIFICATION NUMBER OF THE VEHICLE INVOLVED IN THE
 TRANSACTION ON THE SAFER CAR WEBSITE, AND SHALL PRODUCE AND PROVIDE  THE
 REPORT  FROM  SUCH  WEBSITE TO THE PURCHASER OF ANY MOTOR VEHICLE SAFETY
 RECALL OR RECALLS THAT THE  MOTOR  VEHICLE  IS  SUBJECT  TO,  THAT  SUCH
 RECALLS  MAY  BE  REPAIRED  BY  A  MOTOR  VEHICLE DEALER APPROVED BY THE
 MANUFACTURER OF THE VEHICLE, AND THAT FURTHER INFORMATION ON THE RECALLS
 MAY BE OBTAINED FROM THE NATIONAL HIGHWAY TRAFFIC SAFETY  ADMINISTRATION
 ON  ITS  SAFER  CAR  WEBSITE.  PROVIDING A PRINTOUT OF THE RESULT OF THE
 SEARCH PROVIDED FOR IN THIS SUBDIVISION SHALL BE DEEMED COMPLIANCE  WITH
 THIS  REQUIREMENT,  AND  SUCH  NOTICE  SHALL BE SIGNED BY THE PURCHASER.
 ADDITIONALLY, COMPLIANCE WITH THE  NOTICE  REQUIREMENTS  FOUND  IN  THIS
 SECTION  SHALL  BE A COMPLETE DEFENSE TO ANY ACTION UNDER SECTIONS THREE
 HUNDRED FORTY-NINE OR THREE HUNDRED FIFTY OF THIS  CHAPTER,  SUBDIVISION
 TWELVE  OF  SECTION  SIXTY-THREE  OF  THE EXECUTIVE LAW, OR TO ANY OTHER
 STATE OR LOCAL LAW, RULE OR REGULATION TO THE EXTENT THAT SUCH ACTION IS
 PREMISED UPON ANY ALLEGED FAILURE TO PROVIDE SUFFICIENT OR TIMELY NOTICE
 OF AN OPEN RECALL.
   (G) WHERE A FRANCHISOR OR MANUFACTURER, AS  DEFINED  BY  SECTION  FOUR
 HUNDRED SIXTY-TWO OF THE VEHICLE AND TRAFFIC LAW, DIRECTLY OR INDIRECTLY
 SUBJECTS  ANY  DEALER  TO  ANY FINANCIAL OR OTHER PENALTIES OR OTHERWISE
 PENALIZES OR PREVENTS A DEALER FROM SELLING OR LEASING  ANY  USED  MOTOR
 VEHICLE  SUBJECT  TO  RECALL,  INCLUDING WHERE ANY SUCH RESTRICTIONS ARE
 IMPOSED BY THE MANUFACTURER, EITHER THROUGH  THE  ISSUANCE  OF  A  "STOP
 SELL"  OR  ANY  OTHER  COMMUNICATION THAT PREVENTS OR PENALIZES A DEALER
 FROM OFFERING A VEHICLE FOR SALE, OR FEDERAL, STATE,  OR  LOCAL  LAW  OR
 REGULATION:
   (1)  THE FRANCHISOR OR MANUFACTURER SHALL, WHERE PARTS OR A REMEDY ARE
 NOT REASONABLY AVAILABLE AND A POLICY DESCRIBED IN THIS  SUBDIVISION  IS
 IN  EFFECT, FOLLOWING FIFTEEN DAYS NOTICE FROM A DEALER THAT THEY ARE IN
 POSSESSION OF A VEHICLE  SUBJECT  TO  THE  PROVISIONS  OF  THIS  SECTION
 PROVIDE  TO  SAID  DEALER  A  PAYMENT OF ONE AND SEVENTY-FIVE HUNDREDTHS
 PERCENT OF THE VALUE OF THE USED MOTOR  VEHICLE  AS  DETERMINED  BY  THE

 A. 1380                             3
 
 AVERAGE  "TRADE-IN"  VALUE  FOR A SIMILAR USED VEHICLE AS INDICATED IN A
 WIDELY DISSEMINATED, PUBLICLY AVAILABLE, INDEPENDENT USED MOTOR  VEHICLE
 GUIDE  FOR  THE YEAR, MAKE, MODEL, AND MILEAGE OF THE USED MOTOR VEHICLE
 IN  THE  POSSESSION  OF  THE DEALER FOR EVERY THIRTY DAYS, OR PORTION OF
 THIRTY DAYS, THE DEALER IS UNABLE TO SELL, OFFER TO SELL, OR REPAIR SUCH
 VEHICLE DUE TO THE INABILITY TO SATISFY ANY RECALL ISSUED FOR SUCH VEHI-
 CLE OR DUE TO A COMMUNICATION DESCRIBED IN THE OPENING PARAGRAPH OF THIS
 SUBDIVISION RECEIVED FROM THE MANUFACTURER REGARDING THE  SALE  OF  SUCH
 VEHICLE; AND
   (2)  ALL REIMBURSEMENT CLAIMS MADE BY A DEALER PURSUANT TO THIS SUBDI-
 VISION SHALL BE SUBJECT TO THE PROCEDURE ESTABLISHED UNDER  SUBDIVISIONS
 TWO  THROUGH SEVEN OF SECTION FOUR HUNDRED SIXTY-FIVE OF THE VEHICLE AND
 TRAFFIC LAW.
   (H) THE MANUFACTURER OR FRANCHISOR MAY NOT RETALIATE AGAINST A  DEALER
 WHO  HAS  SUBMITTED  A CLAIM FOR REIMBURSEMENT UNDER THIS SECTION OR WHO
 WAS OTHERWISE COMPENSATED FOR A VEHICLE SUBJECT TO  A  RECALL.  FOR  THE
 PURPOSES  OF  THIS SUBDIVISION, RETALIATION SHALL INCLUDE, BUT SHALL NOT
 BE LIMITED TO, REDUCING THE AMOUNT OF COMPENSATION OTHERWISE OWED  TO  A
 DEALER, WHETHER THROUGH A CHARGEBACK, REMOVAL FROM AN INCENTIVE PROGRAM,
 REDUCING THE AMOUNT OWED UNDER AN INCENTIVE PROGRAM, OR ANY OTHER MEANS,
 IMPOSING  ADDITIONAL REQUIREMENTS, WITHHOLDING INVENTORY, REDUCING ALLO-
 CATION, REQUIRING ANY FACILITY  UPGRADE,  OR  OTHERWISE  SURCHARGING  OR
 PENALIZING  THE DEALER.  A DEALER MAY NOT, HOWEVER, RECEIVE COMPENSATION
 FOR THE SAME VEHICLE UNDER RECALL UNDER THIS SECTION, AS WELL  AS  UNDER
 ANOTHER  MANUFACTURER  PROGRAM DESIGNED TO MITIGATE DEALER COSTS FOR THE
 HOLDING OF VEHICLES UNDER RECALL,  UNLESS  OTHERWISE  ENTITLED  TO  SUCH
 COMPENSATION,  AND  SUCH  COMPENSATION  IS EQUAL TO OR GREATER THAN THAT
 PROVIDED UNDER PARAGRAPH ONE OF SUBDIVISION (G) OF THIS SECTION.
   (I) THE MANUFACTURER OR FRANCHISOR SHALL PAY FOR ANY REPAIRS PERFORMED
 BY THE DEALER TO REMEDY  ANY  RECALL,  PURSUANT  TO  THE  PROVISIONS  OF
 SECTION  FOUR  HUNDRED  SIXTY-FIVE  OF  THE VEHICLE AND TRAFFIC LAW. ANY
 REPLACEMENT PART PROVIDED FOR A RECALL  REPAIR  SHALL  BE  PAID  AT  THE
 EXISTING  RETAIL  REIMBURSEMENT RATE IN EXISTENCE AT THE TIME THE REPAIR
 IS PERFORMED.
   § 2. This act shall take effect immediately, provided,  however,  that
 subdivisions  (b)  through  (f) of section one hundred ninety-eight-d of
 the general business law, as added by section one  of  this  act,  shall
 take effect on the sixtieth day after this act shall have become a law.