Bill Text: NY A06058 | 2019-2020 | General Assembly | Introduced
Bill Title: Enacts the "vessel lemon law" to protect consumers purchasing or leasing boats; requires manufacturers of defective vessels to conform such vessels to the terms of their warranties; provides for replacement or refund in the event of failure to do so; establishes procedures similar to those for new automobiles.
Spectrum: Partisan Bill (Democrat 4-0)
Status: (Introduced - Dead) 2020-01-08 - referred to consumer affairs and protection [A06058 Detail]
Download: New_York-2019-A06058-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6058 2019-2020 Regular Sessions IN ASSEMBLY February 26, 2019 ___________ Introduced by M. of A. ENGLEBRIGHT -- Multi-Sponsored by -- M. of A. ABBATE, GALEF, RIVERA -- read once and referred to the Committee on Consumer Affairs and Protection AN ACT to amend the general business law and the tax law, in relation to warranties for vessels The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The article heading of article 11-A of the general business 2 law, as added by chapter 900 of the laws of 1956, is amended to read as 3 follows: 4 MOTOR VEHICLE AND VESSEL MANUFACTURERS AND SELLERS 5 § 2. The general business law is amended by adding two new sections 6 198-d and 198-e to read as follows: 7 § 198-d. Vessel warranties. (a) As used in this section: 8 (1) "Consumer" means the purchaser, lessee or transferee, other than 9 for purposes of resale, of a vessel which is used primarily for 10 personal, family or household purposes and any other person entitled by 11 the terms of the manufacturer's warranty to enforce the obligations of 12 such warranty. 13 (2) "Vessel" means a new vessel, propelled by power other than muscu- 14 lar power, which is sold in this state to transport persons or property, 15 and includes a vessel used as a demonstrator or leased vessel if a 16 manufacturer's warranty was issued as a condition of sale, or the lessee 17 is responsible for repairs. The term "vessel" includes the engine which 18 powers the vessel. The term "vessel" also includes personal watercraft 19 and specialty prop-craft as defined in the navigation law. 20 (3) "Manufacturer's express warranty" or "warranty" means the written 21 warranty, so labeled, of the manufacturer of a vessel, including any 22 terms or conditions precedent to the enforcement of obligations under 23 that warranty. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD09872-01-9A. 6058 2 1 (4) "Hours of use deduction formula" means the hours of use amount 2 which is in excess of fifty hours times the purchase price or the lease 3 price, if applicable, of the vessel divided by five hundred hours. 4 (5) "Lessee" means any consumer who leases a vessel pursuant to a 5 written lease agreement which provides that the lessee is responsible 6 for repairs to such vessel. 7 (6) "Lease price" means the aggregate of: 8 (i) the lessor's actual purchase cost; 9 (ii) the freight cost, if applicable; 10 (iii) the cost for accessories, if applicable; 11 (iv) any fee paid to another to obtain the lease; and 12 (v) an amount equal to five percent of the lessor's actual purchase 13 cost as prescribed in subparagraph (i) of this paragraph. 14 (7) "Service fees" means the portion of a lease payment attributable 15 to: 16 (i) an amount for earned interest calculated on the rental payments 17 previously paid to the lessor for the leased vessel at an annual rate 18 equal to two points above the prime rate in effect on the date of the 19 execution of the lease; and 20 (ii) any insurance or other costs expended by the lessor for the bene- 21 fit of the lessee. 22 (8) "Capitalized cost" means the aggregate deposit and rental payments 23 previously paid to the lessor for the leased vessel less service fees. 24 (b) (1) If a vessel which is sold in this state does not conform to 25 all express warranties during the first seventy-five hours of operation 26 or during the period of two years following the date of original deliv- 27 ery of the vessel to such consumer, whichever is the earlier date, the 28 consumer shall during such period report the nonconformity, defect or 29 condition to the manufacturer, its agent or its authorized dealer. If 30 the notification is received by the manufacturer's agent or authorized 31 dealer, the agent or dealer shall within seven days forward written 32 notice thereof to the manufacturer by certified mail, return receipt 33 requested, and shall include in such notice a statement indicating 34 whether or not such repairs have been undertaken. The manufacturer, its 35 agent or its authorized dealer shall correct such nonconformity, defect 36 or condition at no charge to the consumer, notwithstanding the fact that 37 such repairs are made after the expiration of such period of operation 38 or such two year period. 39 (2) If a manufacturer's agent or authorized dealer refuses to under- 40 take repairs within seven days of receipt of the notice by a consumer of 41 a nonconformity, defect or condition pursuant to paragraph one of this 42 subdivision, the consumer may immediately forward written notice of such 43 refusal to the manufacturer by certified mail, return receipt requested. 44 The manufacturer or its authorized agent shall have twenty days from 45 receipt of such notice of refusal to commence such repairs. If within 46 such twenty day period, the manufacturer or its authorized agent fails 47 to commence such repairs, the manufacturer, at the option of the consum- 48 er, shall replace the vessel with a comparable vessel or accept return 49 of the vessel from the consumer and refund to the consumer the full 50 purchase price or, if applicable, the lease price and any trade-in 51 allowance plus fees and charges. Such fees and charges shall include but 52 not be limited to all license fees, registration fees and any similar 53 governmental charges, less an allowance for the consumer's use of the 54 vessel in excess of the first fifty hours of operation pursuant to the 55 hours of use deduction formula and a reasonable allowance for any damage 56 not attributable to normal wear or improvements.A. 6058 3 1 (c) (1) If, within the period specified in subdivision (b) of this 2 section, the manufacturer or its agents or authorized dealers are unable 3 to repair or correct any defect or condition which substantially impairs 4 the value of the vessel to the consumer after a reasonable number of 5 attempts, the manufacturer, at the option of the consumer, shall replace 6 the vessel with a comparable vessel or accept return of the vessel from 7 the consumer and refund to the consumer the full purchase price or, if 8 applicable, the lease price and any trade-in allowance plus fees and 9 charges. Any return of a vessel may, at the option of the consumer, be 10 made to the dealer or other authorized agent of the manufacturer who 11 sold such vessel to the consumer or to the dealer or other authorized 12 agent who attempted to repair or correct the defect or condition which 13 necessitated the return and shall not be subject to any further shipping 14 charges. Such fees and charges shall include but not be limited to all 15 license fees, registration fees and any similar governmental charges, 16 less an allowance for the consumer's use of the vessel in excess of the 17 first fifty hours of operation pursuant to the hours of use deduction 18 formula and a reasonable allowance for any damage not attributable to 19 normal wear or improvements. 20 (2) A manufacturer which accepts return of the vessel because the 21 vessel does not conform to its warranty shall notify the commissioner of 22 motor vehicles that the vessel was returned to the manufacturer for 23 nonconformity to its warranty and shall disclose, in accordance with the 24 provisions of section one hundred ninety-eight-e of this article, prior 25 to resale either at wholesale or retail that it was previously returned 26 to the manufacturer for nonconformity to its warranty. Refunds shall be 27 made to the consumer and lienholder, if any, as their interests may 28 appear on the records of ownership kept by the department of motor vehi- 29 cles. Refunds shall be accompanied by the proper application for credit 30 or refund of state and local sales taxes as published by the department 31 of taxation and finance and by a notice that the sales tax paid on the 32 purchase price, lease price or portion thereof being refunded is refund- 33 able by the commissioner of taxation and finance in accordance with the 34 provisions of subdivision (f) of section eleven hundred thirty-nine of 35 the tax law. If applicable, refunds shall be made to the lessor and 36 lessee as their interests may appear on the records of ownership kept by 37 the department of motor vehicles, as follows: the lessee shall receive 38 the capitalized cost and the lessor shall receive the lease price less 39 the aggregate deposit and rental payments previously paid to the lessor 40 for the leased vessel. The terms of the lease shall be deemed terminated 41 contemporaneously with the date of the arbitrator's decision and award 42 and no penalty for early termination shall be assessed as a result ther- 43 eof. Refunds shall be accompanied by the proper application form for 44 credit or refund of state and local sales tax as published by the 45 department of taxation and finance and a notice that the sales tax paid 46 on the lease price or portion thereof being refunded is refundable by 47 the commissioner of taxation and finance in accordance with the 48 provisions of subdivision (f) of section eleven hundred thirty-nine of 49 the tax law. 50 (3) It shall be an affirmative defense to any claim under this section 51 that: 52 (i) the nonconformity, defect or condition does not substantially 53 impair such value; or 54 (ii) the nonconformity, defect or condition is the result of abuse, 55 neglect or unauthorized modifications or alterations of the vessel.A. 6058 4 1 (d) It shall be presumed that a reasonable number of attempts have 2 been undertaken to conform a vessel to the applicable express warran- 3 ties, if: 4 (1) the same nonconformity, defect or condition has been subject to 5 repair four or more times by the manufacturer or its agents or author- 6 ized dealers within the first seventy-five hours of operation or during 7 the period of two years following the date of original delivery of the 8 vessel to a consumer, whichever is the earlier date, but such noncon- 9 formity, defect or condition continues to exist; or 10 (2) the vessel is out of service by reason of repair of one or more 11 nonconformities, defects or conditions for a cumulative total of thirty 12 or more calendar days during either period, whichever is the earlier 13 date. 14 (e) The term of an express warranty, the two year warranty period and 15 the thirty day out of service period shall be extended by any time 16 during which repair services are not available to the consumer because 17 of a war, invasion, strike, fire, flood or other natural disaster. 18 (f) Nothing in this section shall in any way limit the rights or reme- 19 dies which are otherwise available to a consumer under any other law. 20 (g) If a manufacturer has established an informal dispute settlement 21 mechanism, such mechanism shall comply in all respects with the 22 provisions of this section and the provisions of subdivision (c) of this 23 section concerning refunds or replacement shall not apply to any consum- 24 er who has not first resorted to such mechanism. In the event that an 25 arbitrator in such an informal dispute mechanism awards a refund or 26 replacement vessel, he or she shall not reduce the award to an amount 27 less than the full purchase price or the lease price, if applicable, or 28 a vessel of equal value, plus all fees and charges except to the extent 29 such reductions are specifically permitted under subdivision (c) of this 30 section. 31 (h) A manufacturer shall have up to thirty days from the date the 32 consumer notifies the manufacturer of his or her acceptance of the 33 arbitrator's decision to comply with the terms of that decision. Fail- 34 ure to comply with the thirty day limitation shall also entitle the 35 consumer to recover a fee of twenty-five dollars for each business day 36 of noncompliance up to five hundred dollars. Provided, however, that 37 nothing contained in this subdivision shall impose any liability on a 38 manufacturer where a delay beyond the thirty day period is attributable 39 to a consumer who has requested a replacement vessel built to order or 40 with options that are not comparable to the vessel being replaced or 41 otherwise made compliance impossible within said period. In no event 42 shall a consumer who has resorted to an informal dispute settlement 43 mechanism be precluded from seeking the rights or remedies available by 44 law. 45 (i) Any agreement entered into by a consumer for the purchase of a new 46 vessel which waives, limits or disclaims the rights set forth in this 47 section shall be void as contrary to public policy. Such rights shall 48 inure to a subsequent transferee of such vessel. 49 Any provision of any agreement entered into by a consumer for the 50 purchase of a vessel which includes as an additional cost for such 51 vessel an expense identified as being for the purpose of affording such 52 consumer his or her rights under this section, shall be void as contrary 53 to public policy. 54 (j) Any action brought pursuant to this section shall be commenced 55 within four years of the date of original delivery of the vessel to the 56 consumer.A. 6058 5 1 (k) Each consumer shall have the option of submitting any dispute 2 arising under this section upon the payment of a prescribed filing fee 3 to an alternate arbitration mechanism established pursuant to regu- 4 lations promulgated pursuant to this section by the attorney general. 5 Upon application of the consumer and payment of the filing fee, all 6 manufacturers shall submit to such alternate arbitration. 7 Such alternate arbitration shall be conducted by a professional arbi- 8 trator or arbitration firm appointed by and under regulations estab- 9 lished by the attorney general. Such mechanism shall insure the personal 10 objectivity of its arbitrators and the right of each party to present 11 its case, to be in attendance during any presentation made by the other 12 party and to rebut or refute such presentation. In all other respects, 13 such alternate arbitration mechanism shall be governed by article seven- 14 ty-five of the civil practice law and rules. 15 (l) A court may award reasonable attorney's fees to a prevailing 16 plaintiff or to a consumer who prevails in any judicial action or 17 proceeding arising out of an arbitration proceeding held pursuant to 18 subdivision (k) of this section. In the event a prevailing plaintiff is 19 required to retain the services of an attorney to enforce collection of 20 an award granted pursuant to this section, the court may assess against 21 the manufacturer reasonable attorney's fees for services rendered to 22 enforce collection of said award. 23 (m) (1) Each manufacturer shall require that each informal dispute 24 settlement mechanism used by it provide, at a minimum, the following: 25 (i) that the arbitrators participating in such mechanism are trained 26 in arbitration and familiar with the provisions of this section, that 27 the arbitrators and consumers who request arbitration are provided with 28 a written copy of the provisions of this section, together with the 29 notice set forth below entitled "NEW VESSEL LEMON LAW BILL OF RIGHTS", 30 and that consumers, upon request, are given an opportunity to make an 31 oral presentation to the arbitrator; 32 (ii) that the rights and procedures used in the mechanism comply with 33 federal regulations promulgated by the federal trade commission relating 34 to informal dispute settlement mechanisms; and 35 (iii) that the remedies set forth in subdivision (c) of this section 36 are awarded if, after a reasonable number of attempts have been under- 37 taken under subdivision (d) of this section to conform the vessel to the 38 express warranties, the defect or nonconformity still exists. 39 (2) The following notice shall be provided to consumers and arbitra- 40 tors and shall be printed in conspicuous ten point bold face type: 41 NEW VESSEL LEMON LAW BILL OF RIGHTS 42 (1) IN ADDITION TO ANY WARRANTIES OFFERED BY THE MANUFACTURER, YOUR 43 NEW VESSEL, IF PURCHASED AND REGISTERED IN NEW YORK STATE, IS WARRANTED 44 AGAINST ALL MATERIAL DEFECTS FOR SEVENTY-FIVE HOURS OF USE OR TWO YEARS, 45 WHICHEVER COMES FIRST. 46 (2) YOU MUST REPORT ANY PROBLEMS TO THE MANUFACTURER, ITS AGENT OR 47 AUTHORIZED DEALER. 48 (3) UPON NOTIFICATION, THE PROBLEM MUST BE CORRECTED FREE OF CHARGE. 49 (4) IF THE SAME PROBLEM CANNOT BE REPAIRED AFTER FOUR OR MORE 50 ATTEMPTS; OR IF YOUR VESSEL IS OUT OF SERVICE TO REPAIR A PROBLEM FOR A 51 TOTAL OF THIRTY DAYS DURING THE WARRANTY PERIOD; OR IF THE MANUFACTURER 52 OR ITS AGENT REFUSES TO REPAIR A SUBSTANTIAL DEFECT OR CONDITION WITHIN 53 TWENTY DAYS OF RECEIPT OF NOTICE SENT BY YOU TO THE MANUFACTURER BY 54 CERTIFIED MAIL, RETURN RECEIPT REQUESTED; THEN YOU MAY BE ENTITLED TO 55 EITHER A COMPARABLE VESSEL OR A REFUND OF YOUR PURCHASE PRICE, PLUS 56 LICENSE AND REGISTRATION FEES, MINUS AN HOURS OF USE ALLOWANCE ONLY IFA. 6058 6 1 THE VESSEL HAS BEEN OPERATED MORE THAN FIFTY HOURS. SPECIAL NOTIFICA- 2 TION REQUIREMENTS MAY APPLY TO HOUSEBOATS. 3 (5) A MANUFACTURER MAY DENY LIABILITY IF THE PROBLEM IS CAUSED BY 4 ABUSE, NEGLECT OR UNAUTHORIZED MODIFICATIONS OF THE VESSEL. 5 (6) A MANUFACTURER MAY REFUSE TO EXCHANGE A COMPARABLE VESSEL OR 6 REFUND YOUR PURCHASE PRICE IF THE PROBLEM DOES NOT SUBSTANTIALLY IMPAIR 7 THE VALUE OF YOUR VESSEL. 8 (7) IF A MANUFACTURER HAS ESTABLISHED AN ARBITRATION PROCEDURE, THE 9 MANUFACTURER MAY REFUSE TO EXCHANGE A COMPARABLE VESSEL OR REFUND YOUR 10 PURCHASE PRICE UNTIL YOU FIRST RESORT TO THE PROCEDURE. 11 (8) IF THE MANUFACTURER DOES NOT HAVE AN ARBITRATION PROCEDURE, YOU 12 MAY RESORT TO ANY REMEDY BY LAW AND MAY BE ENTITLED TO YOUR ATTORNEY'S 13 FEES IF YOU PREVAIL. 14 (9) NO CONTRACT OR AGREEMENT CAN VOID ANY OF THESE RIGHTS. 15 (10) AS AN ALTERNATIVE TO THE ARBITRATION PROCEDURE MADE AVAILABLE 16 THROUGH THE MANUFACTURER, YOU MAY INSTEAD CHOOSE TO SUBMIT YOUR CLAIM TO 17 AN INDEPENDENT ARBITRATOR, APPROVED BY THE ATTORNEY GENERAL. YOU MAY 18 HAVE TO PAY A FEE FOR SUCH AN ARBITRATION. CONTACT YOUR LOCAL CONSUMER 19 OFFICE OR ATTORNEY GENERAL'S OFFICE TO FIND OUT HOW TO ARRANGE FOR INDE- 20 PENDENT ARBITRATION. 21 (3) All informal dispute settlement mechanisms shall maintain the 22 following records: 23 (i) the number of purchase price and lease price refunds and vessel 24 replacements requested, the number of each awarded in arbitration, the 25 amount of each award and the number of awards that were complied with in 26 a timely manner; 27 (ii) the number of awards where additional repairs or a warranty 28 extension was the most prominent remedy, the amount or value of each 29 award, and the number of such awards that were complied with in a timely 30 manner; 31 (iii) the number and total dollar amount of awards where some form of 32 reimbursement for expenses or compensation for losses was the most prom- 33 inent remedy, the amount or value of each award and the number of such 34 awards that were complied with in a timely manner; and 35 (iv) the average number of days from the date of a consumer's initial 36 request to arbitrate until the date of the final arbitrator's decision 37 and the average number of days from the date of the final arbitrator's 38 decision to the date on which performance was satisfactorily carried 39 out. 40 (n) Special provisions applicable to houseboats: 41 (1) To the extent that the provisions of this subdivision are incon- 42 sistent with the other provisions of this section, the provisions of 43 this subdivision shall apply. 44 (2) For purposes of this section, the "manufacturer of a houseboat" is 45 any person, partnership, corporation, factory branch or other entity 46 engaged in the business of manufacturing or assembling houseboats for 47 sale in this state. 48 (3) This section shall not apply to nonconformities, defects or condi- 49 tions in houseboat systems, fixtures, components, appliances, 50 furnishings or accessories that are residential in character. 51 (4) If, within the period specified in subdivision (b) of this 52 section, the manufacturer of a houseboat or its agents or its authorized 53 dealers or repair shops to which they refer a consumer are unable to 54 repair or correct any defect or condition which substantially impairs 55 the value of the houseboat to the consumer after a reasonable number of 56 attempts, the houseboat manufacturer, at the option of the consumer,A. 6058 7 1 shall replace the houseboat with a comparable houseboat or accept return 2 of the houseboat from the consumer and refund to the consumer the full 3 purchase price or, if applicable, the lease price and any trade-in 4 allowance plus fees and charges as well as the other fees and charges 5 set forth in paragraph one of subdivision (c) of this section. 6 (5) If an agent or authorized dealer of a houseboat manufacturer or a 7 repair shop to which they refer a consumer refuses to undertake repairs 8 within seven days of receipt of notice by a consumer of a nonconformity, 9 defect or condition pursuant to paragraph one of subdivision (b) of this 10 section, the consumer may immediately forward written notice of such 11 refusal to the houseboat manufacturer by certified mail, return receipt 12 requested. The houseboat manufacturer or its authorized agent or a 13 repair shop to which they refer a consumer shall have twenty days from 14 receipt of such notice of refusal to commence such repairs. If within 15 such twenty day period, the houseboat manufacturer or its authorized 16 agent or repair shop to which they refer a consumer, fails to commence 17 such repairs, the houseboat manufacturer, at the option of the consumer, 18 shall replace the houseboat with a comparable houseboat, or accept 19 return of the houseboat from the consumer and refund to the consumer the 20 full purchase price or, if applicable, the lease price, and any trade-in 21 allowance or other charges or allowances as set forth in paragraph two 22 of subdivision (b) of this section. 23 (6) If within the period specified in subdivision (b) of this section, 24 the same nonconformity, defect or condition in a houseboat has been 25 subject to repair three times or a houseboat has been out of service by 26 reason of repair for twenty-one days, whichever occurs first, the 27 consumer must have reported this to the houseboat manufacturer or its 28 authorized dealer by certified mail, return receipt requested prior to 29 instituting any proceeding or other action pursuant to this section; 30 provided, however, that the special notification requirements of this 31 paragraph shall only apply if the manufacturer or its authorized dealer 32 provides a prior written copy of the requirements of this paragraph to 33 the consumer and receipt of the notice is acknowledged by the consumer 34 in writing. If the consumer who has received notice from the manufactur- 35 er fails to comply with the special notification requirements of this 36 paragraph, additional repair attempts or days out of service by reason 37 of repair shall not be taken into account in determining whether the 38 consumer is entitled to a remedy provided in paragraph four of this 39 subdivision. However, additional repair attempts or days out of service 40 by reason of repair that occur after the consumer complies with such 41 special notification requirements shall be taken into account in making 42 that determination. 43 (7) Nothing in this section shall in any way limit any rights, reme- 44 dies or causes of action that a consumer or houseboat manufacturer may 45 otherwise have against the manufacturer of the houseboat's chassis, or 46 its propulsion and other components. 47 (o) At the time of purchase or lease of a vessel from an authorized 48 dealer in this state, the manufacturer shall provide to the dealer or 49 leaseholder, and the dealer or leaseholder shall provide to the consumer 50 a notice, printed in not less than eight point bold face type, entitled 51 "New Vessel Lemon Law Bill of Rights". The text of such notice shall be 52 identical with the notice required by paragraph two of subdivision (m) 53 of this section. 54 § 198-e. Mandatory disclosures by sellers of vessels prior to resale. 55 (a) Certificate of prior use by dealer. Upon the sale or transfer of 56 title by a dealer of any second-hand passenger vessel, the dealer shallA. 6058 8 1 execute and deliver to the buyer an instrument in writing in a form 2 prescribed by the commissioner of motor vehicles which shall set forth 3 the nature of the principal prior use of such vessel which has been 4 repurchased pursuant to section one hundred ninety-eight-d of this arti- 5 cle, a similar statute of another state, or an arbitration or alterna- 6 tive dispute procedure. 7 (b) Certificate of prior nonconformity by manufacturer or dealer. Upon 8 the sale or transfer of title by a manufacturer, its agent or any dealer 9 of any second-hand vessel, previously returned to a manufacturer or 10 dealer for nonconformity to its warranty or after final determination, 11 adjudication or settlement pursuant to section one hundred 12 ninety-eight-d of this article, the manufacturer or dealer shall execute 13 and deliver to the buyer an instrument in writing in a form prescribed 14 by the commissioner of motor vehicles setting forth the following infor- 15 mation in ten point, all capital type: "IMPORTANT: THIS VESSEL WAS 16 RETURNED TO THE MANUFACTURER OR DEALER BECAUSE IT DID NOT CONFORM TO ITS 17 WARRANTY AND THE DEFECT OR CONDITION WAS NOT FIXED WITHIN A REASONABLE 18 TIME AS PROVIDED BY NEW YORK LAW." Such notice that a vessel was 19 returned to the manufacturer or dealer because it did not conform to its 20 warranty shall also be conspicuously printed on the vessel's certificate 21 of title. 22 (c) Violation. The failure of a dealer to deliver to the buyer the 23 instrument required by this section or the delivery of an instrument 24 containing false or misleading information shall constitute a violation 25 of this section. 26 (d) Private remedy. A consumer injured by a violation of this section 27 may bring an action to recover damages. Judgment may be entered for 28 three times the actual damages suffered by a consumer or one hundred 29 dollars, whichever is greater. A court also may award reasonable attor- 30 neys' fees to a prevailing plaintiff buyer. 31 (e) Action by the attorney general. (1) Upon any violation of this 32 section, an application may be made by the attorney general in the name 33 of the people of the state of New York to a court or justice having 34 jurisdiction to issue an injunction, and upon notice to the defendant of 35 not less than five days, to enjoin and restrain the continuance of the 36 violation. If it shall appear to the satisfaction of the court or 37 justice that the defendant has violated this section, an injunction may 38 be issued by the court or justice, enjoining and restraining any further 39 violation, without requiring proof that any person has, in fact, been 40 injured or damaged thereby. In any such proceeding, the court may make 41 allowances to the attorney general as provided in paragraph six of 42 subdivision (a) of section eighty-three hundred three of the civil prac- 43 tice law and rules, and direct restitution. 44 (2) Whenever the court shall determine that a violation of this 45 section has occurred, it may impose a civil penalty of not more than one 46 thousand dollars for each violation. In connection with an application 47 made under this subdivision, the attorney general is authorized to take 48 proof and to make a determination of the relevant facts and to issue 49 subpoenas in accordance with the civil practice law and rules. 50 § 3. Subdivision 3 of section 399-w of the general business law, as 51 added by chapter 372 of the laws of 1995, is amended to read as follows: 52 3. This section shall not apply to: (a) rental purchase agreements as 53 regulated by article eleven of the personal property law [and], (b) 54 motor vehicle rentals under paragraph two of subdivision (a) of section 55 one hundred ninety-eight-a and paragraph two of subdivision a of section 56 one hundred ninety-eight-b of this chapter, and (c) vessel rentals underA. 6058 9 1 paragraph two of subdivision (a) of section one hundred ninety-eight-d 2 of this chapter. 3 § 4. Subdivision (f) of section 1139 of the tax law, as amended by 4 chapter 12 of the laws of 1990, is amended to read as follows: 5 (f) Where a consumer returns a motor vehicle or vessel to and receives 6 a refund of the full purchase price, capitalized cost or a portion ther- 7 eof from the manufacturer in accordance with the provisions of section 8 one hundred ninety-eight-a [or], subdivision five of section three 9 hundred ninety-six-p, or section one hundred ninety-eight-d of the 10 general business law, the commissioner [of taxation and finance] shall 11 refund to such consumer any tax paid by the consumer on the amount of 12 the purchase price, capitalized costs and fees and charges refunded by 13 the manufacturer which is not in excess of the receipts and propor- 14 tionate to the receipts subject to tax. All the provisions of this 15 section shall apply to the refund authorized by this subdivision, 16 provided, however, that a request for a refund under this subdivision 17 shall be timely made if such request for a refund is made within three 18 years of the date the refund from the manufacturer is received by a 19 consumer pursuant to subdivision (c) of section one hundred ninety- 20 eight-a or subdivision (c) of section one hundred ninety-eight-d of the 21 general business law and further provided that interest allowable under 22 subdivision (d) of this section shall be payable from the date which is 23 three months after the date the application for refund in processible 24 form is received. 25 § 5. This act shall take effect on the first of January next succeed- 26 ing the date on which it shall have become a law; provided that the 27 commissioners of motor vehicles and taxation and finance and the attor- 28 ney general are authorized to promulgate any and all rules and regu- 29 lations and take any other measures necessary to implement the 30 provisions of this act on its effective date on or before such date.
