S02751 Summary:

BILL NOS02751
 
SAME ASSAME AS A04344
 
SPONSORCOMRIE
 
COSPNSR
 
MLTSPNSR
 
Amd 398-e, V & T L
 
Establishes that if financial loss has been made and a registrant or unregistered repair shop fails to comply with an order to pay restitution, the commissioner shall, by order, increase the amount of the penalty assessed.
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S02751 Actions:

BILL NOS02751
 
01/29/2019REFERRED TO TRANSPORTATION
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S02751 Committee Votes:

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S02751 Floor Votes:

There are no votes for this bill in this legislative session.
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S02751 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          2751
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                    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:
 
     1    Section 1.  Subdivisions 2 and 3 of section 398-e of the  vehicle  and
     2  traffic  law,  as amended by chapter 634 of the laws of 1980, paragraphs
     3  (a) and (c) of subdivision 2 and paragraphs (a), (d) and (e) of subdivi-
     4  sion 3 as amended by chapter 732 of the laws of 1987, paragraph  (b)  of
     5  subdivision  2  as  amended by section 2 of part OO of chapter 59 of the
     6  laws of 2009 and paragraph (c) of subdivision 3 as  amended  by  chapter
     7  356 of the laws of 2001, are amended to read as follows:
     8    2. Civil penalty; suspension for failure to pay. (a) The commissioner,
     9  or  any  person deputized by him, may, by order, require a registrant or
    10  an unregistered repair shop to pay to the people of this state a penalty
    11  as hereinafter provided. Such penalty may be imposed in addition  to  or
    12  in  lieu  of revoking or suspending the certificate of registration of a
    13  registrant in accordance with the provisions of this article, or such  a
    14  penalty  may  be imposed upon a finding that a registrant or an unregis-
    15  tered repair shop: (i) has been grossly negligent in the performance  of
    16  any  repair  or  adjustment covered by this article; or (ii) has grossly
    17  overcharged for such repair or adjustment.
    18    (b) (i) Such penalty for a first violation  shall  be  in  a  sum  not
    19  exceeding  seven  hundred fifty dollars for each violation found to have
    20  been committed, and for a second or subsequent violation not arising out
    21  of the same incident both of which were committed  within  a  period  of
    22  thirty  months,  be  in  a sum of not more than one thousand dollars for
    23  each violation found to have  been  committed;  provided,  however,  the
    24  penalty  for  each and any violation of paragraph (g) of subdivision one
    25  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
 
     1  hundred and fifty dollars and no more than one thousand dollars,  except
     2  that  if  a finding of financial loss has been made pursuant to subdivi-
     3  sion three of this section, the amount of such penalty may be  increased
     4  by the amount of financial loss so found.
     5    (ii)  Notwithstanding the provisions of subparagraph (i) of this para-
     6  graph, if a finding of financial loss has been made pursuant to subdivi-
     7  sion three of this section and a registrant or unregistered repair  shop
     8  fails  to comply with an order to pay restitution in the time and manner
     9  provided by such subdivision, the commissioner shall, by order, increase
    10  the amount of the penalty assessed pursuant to subparagraph (i) of  this
    11  paragraph by:
    12    (A) the sum of an additional amount not to exceed five hundred dollars
    13  and  the amount of financial loss so found, if the amount of the penalty
    14  imposed pursuant to subparagraph (i) of this paragraph did  not  include
    15  such financial loss; or
    16    (B)  an  additional  amount not to exceed five hundred dollars, if the
    17  amount of the penalty imposed pursuant to subparagraph (i) of this para-
    18  graph included such financial loss.
    19    (c) Upon the failure of a registrant or an unregistered repair shop to
    20  pay such penalty, or, where the order so  [permits]  requires,  to  make
    21  restitution  as  provided  in  subdivision three of this section, within
    22  thirty days after the mailing of such order, postage prepaid, registered
    23  or certified, and addressed to the last known place of business of  such
    24  registrant  or  unregistered repair shop, unless such order is stayed as
    25  provided in subdivision three of section three hundred ninety-eight-f of
    26  this [chapter] article, the commissioner may revoke the  certificate  of
    27  registration  of such registrant or may suspend the same for such period
    28  as he may determine or may seek to recover unpaid civil penalties  in  a
    29  civil  action  in the name of the commissioner. Civil penalties assessed
    30  under this subdivision shall be paid to  the  commissioner  for  deposit
    31  into the state treasury.
    32    (d)  In  addition, as an alternative to such civil action and provided
    33  that no proceeding for judicial review shall then  be  pending  and  the
    34  time  for  initiation of such proceeding shall have expired, the commis-
    35  sioner may file with the county clerk of the county in which the  regis-
    36  trant is located a final order of the commissioner containing the amount
    37  of  the  penalty assessed pursuant to paragraph (b) of this subdivision.
    38  The filing of such final order shall have the full force and effect of a
    39  judgment duly docketed in the office of such clerk and may  be  enforced
    40  in  the  same manner and with the same effect as that provided by law in
    41  respect to executions issued against property upon judgments of a  court
    42  of record.
    43    3. Restitution; assessment. (a) Upon a determination that a registrant
    44  or  an  unregistered  repair  shop  has done or failed to do any act for
    45  which suspension of the registrant's registration  or  a  civil  penalty
    46  against the registrant or unregistered repair shop could be imposed, the
    47  person making such determination may make a finding of financial loss to
    48  any complainant or complainants resulting from the actions of the regis-
    49  trant  or  unregistered  repair shop. The person making such finding may
    50  provide that if the registrant or unregistered repair shop makes  resti-
    51  tution  to  the complainant or complainants for the amount or amounts so
    52  found, that payment of such restitution may be substituted  in  lieu  of
    53  any  suspension or civil penalty, or a specified portion thereof imposed
    54  upon the registrant or unregistered  repair  shop  may  be  waived  upon
    55  payment of such restitution.  However, a finding of financial loss shall
    56  only  be  made  if  the  complainant  (i) agrees to accept the amount so

        S. 2751                             3
 
     1  found, if offered by the registrant or  unregistered  repair  shop,  and
     2  (ii) is not a party to any litigation which is pending or which has gone
     3  to judgment in relation to the same matter in any civil court.
     4    (b)  The  amount  of financial loss which may be found and proposed as
     5  restitution shall be limited to an amount necessary to repair the  vehi-
     6  cle or vehicles in question and/or any amount of overcharge which may be
     7  found.  Neither  punitive  nor incidental damages may be included in the
     8  finding of financial loss.
     9    (c) If payment of restitution to the  complainant  is  [authorized  in
    10  lieu  of  all or a portion of a suspension or civil penalty] ordered, in
    11  order for the registrant or unregistered repair  shop  to  exercise  the
    12  option  to [make such payment] avoid all or a portion of a suspension or
    13  civil penalty, such payment must be made by means of a  certified  check
    14  or  money  order payable to the complainant or complainants delivered to
    15  an office of the department as directed by the commissioner or his agent
    16  within thirty days of the date of notice of a finding of financial loss,
    17  suspension and/or civil penalty. Upon receipt of such certified check or
    18  money order, the department shall forward the same to the complainant or
    19  complainants. In the event that the registrant  or  unregistered  repair
    20  shop  should  fail  to  make  payment for restitution within such thirty
    21  days, but, at a later time, pays  such  civil  penalty,  the  department
    22  shall  deduct  from  such  civil penalty payment the amount assessed for
    23  restitution, and shall mail a check for such amount to  the  complainant
    24  or complainants.
    25    (d)  If  payment of restitution [may be substituted in lieu of a civil
    26  penalty or portion of a civil penalty] is ordered, and the registrant or
    27  unregistered repair shop [does not exercise the option]  fails  to  make
    28  such  payment,  the  civil penalty [becomes] shall be due as provided in
    29  subdivision two of this section and the provisions of  that  subdivision
    30  relating  to  suspension of registration and recovery of civil penalties
    31  shall apply.
    32    (e) Any payment made in compliance with such a  finding  of  financial
    33  loss  shall  not  preclude  any civil action which may be brought by the
    34  complainant, registrant or unregistered repair shop, and any such  find-
    35  ing  may  be  considered  but shall not be binding upon any court before
    36  which any such action is brought.
    37    § 2. This act shall take effect on the first of November next succeed-
    38  ing the date on which it shall have become a law. Effective immediately,
    39  the addition, amendment and/or repeal of any rule or  regulation  neces-
    40  sary  for  the  implementation  of  this  act  on its effective date are
    41  authorized to be made on or before such effective date.
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