STATE OF NEW YORK
________________________________________________________________________
2957
2011-2012 Regular Sessions
IN SENATE
February 3, 2011
___________
Introduced by Sen. KRUGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the civil practice law and rules and the general busi-
ness law, in relation to tampering with odometers of motor vehicles
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph 6 of subdivision (a) of section 8303 of the civil
2 practice law and rules, as amended by chapter 530 of the laws of 2002,
3 is amended to read as follows:
4 6. to the plaintiffs in an action or proceeding brought by the attor-
5 ney-general under [articles] article twenty-two, twenty-two-A, twenty-
6 three-A or thirty-three or section three hundred ninety-one-b, three
7 hundred ninety-two-e or five hundred twenty-a of the general business
8 law, or under subdivision twelve of section sixty-three of the executive
9 law, or under article twenty-three of the arts and cultural affairs law,
10 or in an action or proceeding brought by the attorney-general under
11 applicable statutes to dissolve a corporation or for usurpation of
12 public office, or unlawful exercise of franchise or of corporate right,
13 a sum not exceeding two thousand dollars against each defendant.
14 § 2. Section 392-e of the general business law, as added by chapter
15 958 of the laws of 1969 and subdivision 2-a as added by chapter 404 of
16 the laws of 2001, is amended to read as follows:
17 § 392-e. Using false statements or altering mileage registering
18 devices. 1. Upon the transfer of ownership of a motor vehicle, the sell-
19 er shall enter on any instrument executed by him, including any form
20 prescribed by the commissioner of motor vehicles, and on any other bill
21 of sale, certificate, or evidence of title or condition given by him at
22 the time of transfer or sale, the mileage said motor vehicle purports to
23 have been operated as the same appears upon the odometer in such motor
24 vehicle. In the event that such odometer mileage is known to the seller
25 to be less than such motor vehicle has actually travelled, the seller
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07136-01-1
S. 2957 2
1 shall enter upon any said transfer instrument or statement "True mileage
2 unknown." In the event that it is known to the seller that the mileage
3 indicated on such odometer is beyond its designed mechanical limits, he
4 shall state the total cumulative mileage on the aforesaid prescribed
5 transfer instruments. Any person, firm, partnership, or corporation who,
6 with intent to defraud, gives a false statement to a transferee under
7 the provisions of this section, shall be guilty of a class A misdemea-
8 nor, for a first offense involving only one motor vehicle or shall be
9 guilty of a class E felony for any subsequent offense committed within
10 ten years of a previous violation of this section or for an offense
11 under this section involving more than one motor vehicle, provided,
12 however, that no person, firm, partnership, or corporation shall be
13 convicted under the section where a vehicle has been resold in reliance
14 on the required statement of the prior owner and pursuant to the
15 provisions of [subdivision one, two, three and four of section three
16 hundred ninety-two-e] this section.
17 2. A person, firm, partnership, or corporation who, with intent to
18 defraud, shall misrepresent the mileage of a motor vehicle to a trans-
19 feree by the execution and delivery of the written statement required in
20 [the preceding paragraph hereof] subdivision one of this section and
21 which in fact is false, or who, with intent to defraud, shall misrepre-
22 sent such mileage to a transferee by disconnection, changing, or causing
23 to be disconnected or changed any mileage registering device on a motor
24 vehicle so as to thereby indicate a lesser mileage than such motor vehi-
25 cle has actually travelled, shall be guilty of a class A misdemeanor for
26 a first offense involving only one motor vehicle or shall be guilty of a
27 class E felony for any subsequent offense committed within ten years of
28 a previous violation of this section or for an offense under this
29 section involving more than one motor vehicle.
30 2-a. (a) No person, firm, partnership, or corporation shall, prior to
31 the transfer of ownership of a motor vehicle, misrepresent by any state-
32 ment, express or implied and which in fact is false, the mileage said
33 motor vehicle purports to have been operated as the same appears on the
34 odometer in such motor vehicle. Nothing contained herein shall be deemed
35 to [supercede] supersede the provisions of any other subdivision of this
36 section.
37 (b) A violation of this subdivision shall be subject to a fine not to
38 exceed five hundred dollars for each violation; provided, however, that
39 a knowing or willful violation of this subdivision shall be subject to a
40 fine not to exceed one thousand five hundred dollars for each such
41 violation. No person, firm, partnership, or corporation shall be deemed
42 to have violated this subdivision where the vehicle is sold, offered for
43 sale, or advertised for sale in reliance on the required statement of
44 the prior owner and pursuant to the provisions of subdivisions one, two,
45 [three and] four and five of this section.
46 (c) Unless the misrepresentation was made with an intent to defraud,
47 the provisions of paragraphs (a) and (b) of this subdivision shall not
48 apply to a statement made regarding a vehicle the most current ownership
49 document for which is a salvage certificate or like document issued by a
50 state or jurisdiction or regarding a vehicle sold by a salvage pool
51 registered under section four hundred fifteen-a of the vehicle and traf-
52 fic law.
53 3. Any person who, with intent to defraud, disconnects or changes the
54 odometer on a motor vehicle so as to thereby indicate a lesser mileage
55 than such motor vehicle has actually travelled, shall be guilty of a
56 class A misdemeanor for a first offense involving only one motor vehicle
S. 2957 3
1 or shall be guilty of a class E felony for any subsequent offense
2 committed within ten years of a previous violation of this section or
3 for an offense under this section involving more than one motor vehicle.
4 4. Nothing herein contained shall prevent the service, repair or
5 replacement of a mileage registering device, provided the mileage indi-
6 cated thereon remains the same as before the service, repair or replace-
7 ment; or provided the mileage registering device reads zero and a notice
8 in writing is attached to the left front door frame of the vehicle by
9 the owner or his agent, indicating the mileage prior to replacement and
10 the date on which it was replaced. Any unauthorized removal of such
11 notice so affixed shall constitute a violation of subdivision two of
12 [section three hundred ninety-two-e] this section.
13 [4] 5. This section shall not apply to new motor vehicles. A new motor
14 vehicle is one sold or transferred by a manufacturer, distributor or
15 dealer and which has not been placed in consumer use or has not been
16 used as a demonstrator.
17 6. Any person who has been injured by reason of any violation of this
18 section may bring an action in his or her own name to recover actual
19 damages or five hundred dollars, whichever is greater. The court may, in
20 its discretion, increase the award of damages to an amount not to exceed
21 three times the actual damages or one thousand five hundred dollars,
22 whichever is greater, if the court finds the defendant willfully and
23 knowingly violated this section. The court may award costs and reason-
24 able attorney's fees to a prevailing plaintiff.
25 7. Whenever the attorney general shall believe from evidence satisfac-
26 tory to him or her that any person, firm, partnership, corporation or
27 association or agent or employee thereof, has violated any provision of
28 this section, an application may be made by the attorney general in the
29 name of the people of the state of New York to a court or justice having
30 jurisdiction by a special proceeding to issue an injunction, and upon
31 notice to the defendant of not less than five days, to enjoin and
32 restrain the continuance of such violation; and if it shall appear to
33 the satisfaction of the court or justice that the defendant has, in
34 fact, violated this section, an injunction may be issued by such court
35 or justice, enjoining and restraining any further violation, without
36 requiring proof that any person has, in fact, been injured or damaged
37 thereby. In any such proceeding, the court may make allowances to the
38 attorney general as provided in paragraph six of subdivision (a) of
39 section eighty-three hundred three of the civil practice law and rules,
40 and direct restitution. Whenever the court shall determine that a
41 violation of this section has occurred, the court may impose a civil
42 penalty of not more than two thousand dollars for each violation. In
43 connection with any such proposed application, the attorney general is
44 authorized to take proof and make a determination of the relevant facts
45 and to issue subpoenas in accordance with the civil practice law and
46 rules.
47 8. The department of law may prosecute every person, firm, partner-
48 ship, corporation or association or agent or employee charged with a
49 criminal offense in violation of this section. In all such proceedings,
50 the department may appear before any court of record or any grand jury
51 and perform all the duties in respect of such actions or proceedings
52 which the district attorney would otherwise be authorized or required to
53 exercise or perform. The department may include in an action under this
54 subdivision an application to direct restitution, damages and penalties.
55 § 3. This act shall take effect on the first of January next succeed-
56 ing the date on which it shall have become a law.
