S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2751
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                             January 29, 2019
                                ___________
 
 Introduced  by  Sen.  COMRIE -- read twice and ordered printed, and when
   printed to be committed 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08420-01-9

 S. 2751                             2
 
 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 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

 S. 2751                             3
 
 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.
   § 2. This act shall take effect on the first of November next succeed-
 ing the date on which it shall have become a law. Effective immediately,
 the addition, amendment and/or repeal of any rule or  regulation  neces-
 sary  for  the  implementation  of  this  act  on its effective date are
 authorized to be made on or before such effective date.