Bill Text: NY A06655 | 2019-2020 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Requires registration of new automotive broker businesses; enacts various provisions relating to conduct of such businesses; defines certain deceptive practices; establishes rights of action and penalties.
Spectrum: Moderate Partisan Bill (Democrat 58-13)
Status: (Introduced - Dead) 2020-02-24 - print number 6655e [A06655 Detail]
Download: New_York-2019-A06655-Amended.html
Bill Title: Requires registration of new automotive broker businesses; enacts various provisions relating to conduct of such businesses; defines certain deceptive practices; establishes rights of action and penalties.
Spectrum: Moderate Partisan Bill (Democrat 58-13)
Status: (Introduced - Dead) 2020-02-24 - print number 6655e [A06655 Detail]
Download: New_York-2019-A06655-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 6655--B 2019-2020 Regular Sessions IN ASSEMBLY March 14, 2019 ___________ Introduced by M. of A. CARROLL, ABBATE, STIRPE, REYES, DenDEKKER, TAYLOR, CYMBROWITZ, DICKENS, M. G. MILLER, D'URSO, ENGLEBRIGHT, D. ROSENTHAL, GALEF, GOTTFRIED, RAMOS, DeSTEFANO, MIKULIN, SMITH, SAYEGH, WILLIAMS, COOK, ABINANTI, McDONOUGH, QUART, SEAWRIGHT, LiPE- TRI, REILLY, B. MILLER, ROZIC, PALUMBO, EPSTEIN, FERNANDEZ, RYAN, STECK, CRUZ, PHEFFER AMATO, PICHARDO, RAIA, RA, BENEDETTO, BYRNE, JACOBSON, BUCHWALD, HYNDMAN, PERRY, THIELE, SOLAGES, LAVINE, STERN, GARBARINO, GRIFFIN -- Multi-Sponsored by -- M. of A. DE LA ROSA, FITZPATRICK, HEVESI, LAWRENCE, SIMON -- read once and referred to the Committee on Consumer Affairs and Protection -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- again reported from said committee with amendments, ordered reprinted as amended and recommitted to said committee AN ACT to amend the vehicle and traffic law and the general business law, in relation to designating new automotive broker businesses The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Paragraph a of subdivision 1 of section 415 of the vehicle 2 and traffic law, as amended by chapter 554 of the laws of 2015, is 3 amended and a new paragraph n is added to read as follows: 4 a. "Dealer" means a person engaged in the business of buying, selling 5 or dealing in motor vehicles, motorcycles or trailers, other than mobile 6 homes or manufactured homes, at retail or wholesale; except, however, 7 trailers with an unladen weight of less than one thousand pounds. For 8 the purposes of this section, a "mobile home" or "manufactured home" 9 means a mobile home or manufactured home as defined in section one 10 hundred twenty-two-c of this chapter. Any person who sells, or offers 11 for sale or lease more than five motor vehicles, motorcycles or trailers 12 in any calendar year or who displays or permits the display of three or 13 more motor vehicles, motorcycles or trailers for sale at any one time or 14 within any one calendar month upon premises owned or controlled by him EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08916-07-9A. 6655--B 2 1 or her, if such vehicles were purchased, acquired or otherwise obtained 2 by such person for the purpose of resale, will be regarded as a dealer. 3 For the purposes of this section, "offers for sale or lease" shall 4 include, but not be limited to, the act of drawing the public's atten- 5 tion to, or the presentation or display of any motor vehicle, including 6 the posting of images of any such vehicle, together with an offer to 7 provide, the provision of, or a representation that such person may 8 provide a service of arranging, assisting, facilitating or effecting the 9 lease of such new motor vehicle, except this meaning shall not apply to 10 any activity of a cooperative or other advertising program or fund as 11 described in any franchise, as such term is defined by subdivision six 12 of section four hundred sixty-two of this title. Except as otherwise 13 provided in subdivisions three, five, six-b, and seven of this section, 14 the term "dealer" shall include a "new motor vehicle dealer" as defined 15 by paragraph f of this subdivision and a "qualified dealer" as defined 16 in paragraph g of this subdivision. 17 n. "New automobile broker business" shall have the same meaning as set 18 forth in subdivision four of section seven hundred thirty-six of the 19 general business law. 20 § 2. Section 736 of the general business law is amended by adding a 21 new subdivision 4 to read as follows: 22 4. "New automobile broker business" means any person who, for a fee, 23 commission or other valuable consideration, regardless of whether such 24 fee, commission or consideration is paid directly by a consumer, offers 25 to provide, provides or represents that he or she will provide a service 26 of purchasing, arranging, assisting, facilitating or effecting the 27 purchase or lease of a previously unregistered automobile; through a new 28 motor vehicle dealer, as agent, broker, or intermediary for a consumer. 29 "New automobile broker business" does not include any person registered 30 as a new vehicle dealer for the new automobile brand or brands for which 31 such services are provided, pursuant to article sixteen of the vehicle 32 and traffic law nor any bona fide employee of such a registered dealer 33 while acting for such dealer. 34 § 3. Subdivision 3-a and paragraph b-3 of subdivision 5 of section 415 35 of the vehicle and traffic law, as added by chapter 477 of the laws of 36 2017, are amended to read as follows: 37 3-a. Automobile broker business [registration] or new automobile 38 broker business. a. No person shall engage in the automobile broker 39 business, the new automobile broker business or represent or advertise 40 that he or she is engaged or intends to engage in the automobile broker 41 business or new automobile broker business in this state, unless there 42 shall have been issued to him or her a certificate of registration as an 43 automobile broker business or new automobile broker business, as the 44 case may be, by the commissioner under this section pursuant to an 45 application for registration submitted pursuant to subdivision five of 46 this section. 47 b. The commissioner shall not issue any certificate of registration 48 authorized by this section to any dealer, franchisee, franchisor, 49 manufacturer, distributor, distributor branch or factory branch, as such 50 terms are defined in section four hundred sixty-two of this title, or to 51 any subsidiary, affiliate or controlled entity thereof. 52 c. As a condition of any certificate of registration issued pursuant 53 to this subdivision, a new automobile broker business shall have, and 54 continuously maintain, a place of business in this state for which it 55 shall keep and maintain evidence that all necessary approvals, licensesA. 6655--B 3 1 and/or permits have been obtained from all local governing bodies to 2 operate such place of business with customer or client traffic. 3 d. Every registered new automobile broker shall prominently and 4 conspicuously post, in such a manner that it is likely to be noticeable 5 to anyone entering its premises, its official business certificate of 6 registration and a sign, which sign shall clearly state: 7 "(Name of registered new automobile broker) is not a franchised new 8 motor vehicle dealership. We are not authorized to perform recall or 9 original factory warranty work. If you order a search for a new motor 10 vehicle from this broker, we must solicit at least three bona fide bids 11 for a new motor vehicle on your behalf, including from your local deal- 12 er." 13 e. A new automobile broker business shall not provide, offer to 14 provide, or represent that he or she will provide a service of purchas- 15 ing, arranging, assisting, facilitating or effecting the purchase or 16 lease of a previously unregistered automobile with a dealer located in 17 any other state unless such state affords lawful means for the same 18 business activity, such standards and requirements are equivalent to 19 those contained in this article and article thirty-five-B of the general 20 business law, the new automobile broker business is registered, permit- 21 ted or licensed to perform such business activity in such other state 22 and is otherwise in good standing with each governmental agency of such 23 other state responsible for regulating such business activity. The 24 commissioner of motor vehicles shall be empowered to determine the 25 substantial equivalence of such other state laws pertaining to the 26 registration, permitting or licensure of such businesses. 27 b-3. In the case of an application for registration as an automobile 28 broker business or new automobile broker business, the name and address 29 of the surety company which will issue the bond required by subdivision 30 one of section seven hundred forty-a of the general business law and a 31 statement indicating any interest in the applicant's business entity by 32 a person or entity described in paragraph (f) of subdivision one or 33 paragraph f of subdivision seven of this section. If the bond is to be 34 issued by an authorized agent of the surety company licensed by the 35 state, then the name and address of that agent may be provided in lieu 36 of the information concerning the surety company. 37 § 4. Subdivision 1 of section 736-a of the general business law, as 38 added by chapter 477 of the laws of 2017, is amended and a new subdivi- 39 sion 3 is added to read as follows: 40 1. (a) No person shall engage in business as an automobile broker 41 business or as a new automobile broker business, as such terms are 42 defined in section seven hundred thirty-six of this article, without 43 first having been issued a certificate of registration for an automobile 44 broker business or new automobile broker business pursuant to paragraph 45 c of subdivision seven of section four hundred fifteen of the vehicle 46 and traffic law. A certificate of registration for a new automobile 47 broker business is valid for a period of two years. 48 (b) No new automobile broker business shall represent or accept 49 payment from, either directly or indirectly, a franchisee, dealer, fran- 50 chisor, manufacturer and/or distributor, as such terms are defined in 51 sections four hundred fifteen and four hundred sixty-two of the vehicle 52 and traffic law. 53 (c) No new automobile broker business shall provide, offer to provide, 54 or represent that he or she will provide a service of purchasing, 55 arranging, assisting, facilitating or effecting the purchase or lease of 56 a previously unregistered automobile with a dealer located in any otherA. 6655--B 4 1 state unless such state affords lawful means for the same business 2 activity, such standards and requirements set forth in the laws of such 3 other state are equivalent to those contained in this article, the new 4 automobile broker business has been registered, permitted or licensed to 5 perform such business activity in such other state and is otherwise in 6 good standing with each agency of such other state responsible for regu- 7 lating such business activity. The secretary of state shall be empowered 8 to determine the substantial equivalence of such other state laws 9 pertaining to the regulation of such business activity, including 10 consumer protections in any such law. 11 3. The commissioner of motor vehicles shall make necessary rules and 12 regulations as may be appropriate for the proper enforcement of the 13 provisions of this section. 14 § 5. The general business law is amended by adding a new section 741-c 15 to read as follows: 16 § 741-c. Prohibitions related to private information. No person regis- 17 tered under this article shall request, receive, accept, handle, store 18 or transmit the private information, as such term is defined in para- 19 graph (b) of subdivision one of section eight hundred ninety-nine-aa of 20 this chapter, of any consumer. 21 § 6. Section 737 of the general business law, as added by chapter 616 22 of the laws of 1988, is amended to read as follows: 23 § 737. Advance fees prohibited. No automobile broker business or new 24 automobile broker business shall solicit, receive or collect from a 25 consumer any fee, or commission, in advance of the performance of those 26 services specified in the contract as required by section seven hundred 27 thirty-eight of this article. 28 § 7. The opening paragraph of subdivision 1 of section 738 of the 29 general business law, as amended by chapter 28 of the laws of 2018, is 30 amended to read as follows: 31 Every contract between a consumer and an automobile broker business, 32 which for the purposes of this section shall include new automobile 33 broker businesses, for the purchase of an automobile shall be in writ- 34 ing, shall be dated, shall contain the street address of the automobile 35 broker business and the consumer and shall be signed by the consumer and 36 by the automobile broker business. Every contract shall comply with the 37 requirements set forth in this section and contain the following: 38 § 8. Section 740 of the general business law, as added by chapter 616 39 of the laws of 1988, is amended to read as follows: 40 § 740. Escrow required for advance payments. All monies paid by a 41 consumer to an automobile broker business or a new automobile broker 42 business in connection with a transaction covered by this article shall 43 be trust funds in the possession of such automobile broker business or 44 new automobile broker business and shall be deposited by it within five 45 days after receipt thereof, in an account in a banking organization 46 within the state. The automobile broker business or new automobile 47 broker business shall thereupon notify in writing the consumer, giving 48 the name and address of the banking organization and the amount deposit- 49 ed. The monies shall be held on deposit until fully applied to the 50 contract price at the time the automobile is delivered to the consumer, 51 unless sooner repaid in accordance with the provisions of this article. 52 § 9. Section 740-a of the general business law, as added by chapter 53 579 of the laws of 2011 and subdivision 1 as amended by chapter 477 of 54 the laws of 2017, is amended to read as follows: 55 § 740-a. Automobile broker business and new automobile broker business 56 surety bond. 1. Automobile broker businesses shall obtain and continueA. 6655--B 5 1 in effect a surety bond in an amount of one hundred thousand dollars 2 executed by a surety company authorized to transact business in the 3 state by the department of financial services of the state or its 4 successor. New automobile broker businesses shall obtain and continue 5 in effect a surety bond in an amount of two hundred fifty thousand 6 dollars executed by a surety company authorized to transact business in 7 the state by the department of financial services of the state or its 8 successor. The bonds shall be approved as to form by the secretary of 9 state and shall be conditioned on the automobile broker business' or new 10 automobile broker business' payment of all valid bank drafts, including 11 checks, drawn for the purchase of motor vehicles and safekeeping of all 12 customer deposits related to the sale of a motor vehicle between the 13 time of receipt of such customer deposit and the transfer of good title 14 to the vehicle to the customer. 15 2. Recovery against a bond may be made by a person, including the 16 state, who obtains a judgment against the automobile broker business or 17 new automobile broker business for an act or omission on which the bond 18 is conditioned if the act or omission occurred during the term of the 19 bond. The total liability imposed on the surety under this section for 20 all breaches of the bond condition is limited to the face amount of the 21 bond. Such liability may include, but is not limited to, the amount of 22 the valid bank drafts, including checks, drawn by the automobile broker 23 business or new automobile broker business for the purchase of motor 24 vehicles. In no event shall the surety on a bond be liable for total 25 claims in excess of the bond amount, regardless of the number or nature 26 of claims made against the bond or the number of years the bond remained 27 in force. 28 3. Any surety issuing a bond pursuant to this subdivision shall be 29 required to provide sixty days' notice to the secretary of state prior 30 to the effective date of cancellation of the bond. 31 § 10. Section 741 of the general business law, as added by chapter 616 32 of the laws of 1988, is amended to read as follows: 33 § 741. Deceptive acts and frauds prohibited. 1. It is hereby declared 34 to be a deceptive trade practice and unlawful for an automobile broker 35 business or new automobile broker business to misrepresent directly or 36 indirectly in its advertising, promotional materials, sales presenta- 37 tion, or in any manner: 38 [1.] (a) The nature of the services to be performed and in the case of 39 a new automobile broker that a third party will be paying for any such 40 services; 41 [2.] (b) The time within which the services will be performed; 42 [3.] (c) The cost of the services to be performed; [and434.] (d) The ability of the automobile broker business or new automo- 44 bile broker business to perform the services; and 45 (e) That the automobile broker business or new automobile broker busi- 46 ness is affiliated with any automobile manufacturer and/or distributor, 47 including the use of any trademarks or copyrighted material without the 48 express, written consent of the owner of such material. 49 2. It shall be a fraudulent business practice for an automobile broker 50 business or new automobile broker business to refuse to disclose to a 51 motor vehicle dealer or new motor vehicle dealer the registration number 52 provided by the department of motor vehicles pursuant to section four 53 hundred fifteen of the vehicle and traffic law. Furthermore, it shall 54 also be a fraudulent business practice for an automobile broker business 55 or new automobile broker business to make any misrepresentation to a 56 motor vehicle dealer or new motor vehicle dealer regarding the eligibil-A. 6655--B 6 1 ity of any consumer for any discounts, reductions or any benefit 2 programs regarding the sale or lease of a motor vehicle. 3 3. It shall be a fraudulent business practice for a new automobile 4 broker business to fail to make a bona fide attempt to obtain a quote or 5 offer from at least three unaffiliated dealers on behalf of a prospec- 6 tive buyer or lessee for a vehicle meeting the prospective buyer or 7 lessee's specifications, including the new motor vehicle dealer located 8 in closest proximity to the address of such prospective buyer or 9 lessee's home or, in the case of any entity, its place of doing busi- 10 ness. 11 4. It shall be a fraudulent business practice for a new automobile 12 broker business to fail to act for the benefit of the prospective buyer 13 or lessee, including by failing to make reasonable efforts to obtain the 14 lowest possible price, down payment, number of payments, amount of 15 payments, finance charges, annual percentage rate and/or fees for a new 16 motor vehicle that meets the specifications of such prospective buyer or 17 lessee. 18 § 11. Section 741-a of the general business law, as amended by chapter 19 477 of the laws of 2017, is amended to read as follows: 20 § 741-a. Advertising. Automobile broker businesses and new automobile 21 broker businesses shall clearly and conspicuously disclose the following 22 in all advertisements in any medium, and in any print advertisement such 23 disclosures shall not appear in any footnotes and shall be situated in 24 the top half of any such advertisement in an easily readable typeface: 25 (a) That the automobile broker business or new automobile broker busi- 26 ness is not a registered new motor vehicle dealer but is a registered 27 automobile broker business or new automobile broker business as defined 28 in section four hundred fifteen of the vehicle and traffic law; 29 (b) The registration number issued to the automobile broker business 30 or new automobile broker business pursuant to section four hundred 31 fifteen of the vehicle and traffic law; 32 (c) Whether any fees may be imposed by the automobile broker business 33 or new automobile broker business for services rendered. Details of such 34 compensation shall be provided by the automobile broker business or new 35 automobile broker business upon request by the consumer; and 36 (d) That no warranty repair services will be provided by the automo- 37 bile broker business or new automobile broker business. 38 § 12. Section 741-b of the general business law, as added by chapter 39 28 of the laws of 2018, is amended to read as follows: 40 § 741-b. [Disclosure] Disclosures. 1. An automobile broker business 41 or new automobile broker business shall provide a disclosure at the time 42 such automobile broker business or new automobile broker business takes 43 an order to search for a leased or purchased vehicle meeting the 44 prospective buyer or lessee's specifications. Such disclosure shall 45 provide the amount of any fees, commissions or other valuable consider- 46 ation the automobile broker business or new automobile broker business 47 expects to receive for any assistance the automobile broker business 48 provides in effecting the lease or purchase transaction, including any 49 reasonably foreseeable fees or charges, including delivery fees. In the 50 case of an automobile broker business this shall include, if known, any 51 payments from a dealer, lessor or any other person or entity for any 52 assistance the automobile broker business provides in effecting the 53 lease or purchase transaction. If the amount of any such fees, commis- 54 sions or other valuable consideration the automobile broker business 55 expects to receive is unknown at the time of the required disclosure, 56 the automobile broker business shall disclose: (a) whether it has aA. 6655--B 7 1 contract with any dealer, lessor or any other person or entity for the 2 provision of assistance in effecting a lease transaction; and (b) wheth- 3 er the automobile broker business may be compensated by the dealer, 4 lessor or any other person or entity for any assistance in effecting 5 such lease transaction. Nothing in this subdivision shall be construed 6 to permit the payment of any fees, commissions or other valuable consid- 7 eration to a new automobile broker business by any dealer. 8 2. A new automobile broker business shall provide an additional 9 disclosure at the time such new automobile broker business takes an 10 order to search for a vehicle meeting the prospective buyer or lessee's 11 specifications. Such additional disclosure shall state that the broker 12 shall make a bona fide attempt to obtain a bid, quote or offer from at 13 least three unaffiliated dealers on behalf of the prospective buyer or 14 lessee for a vehicle meeting the prospective buyer or lessee's specifi- 15 cations, including from the new motor vehicle dealer of such line make 16 located closest to the home or place of business of such prospective 17 buyer and that the new automobile broker has a duty to act for the bene- 18 fit of the prospective buyer or lessee, including by making reasonable 19 efforts to obtain the lowest possible price, down payment, number of 20 payments, amount of payments, finance charges, annual percentage rate 21 and/or fees. 22 3. Each disclosure required by this section shall be acknowledged in 23 writing by each respective prospective buyer or lessee. 24 § 13. Section 742 of the general business law, as added by chapter 616 25 of the laws of 1988, is amended to read as follows: 26 § 742. Action for recovery of damages by consumer. Any consumer 27 injured by a violation of this article or by the breach by an automobile 28 broker business or new automobile broker business of a contract which 29 has been entered into pursuant to section seven hundred thirty-nine of 30 this article may bring an action for recovery of damages. Judgment shall 31 be entered in favor of a consumer in an amount not to exceed three times 32 the actual damages, but in no case less than the amount paid by the 33 buyer to the automobile broker business or new automobile broker busi- 34 ness. The court may award reasonable attorney's fees to a prevailing 35 plaintiff. 36 § 14. Section 743 of the general business law, as amended by chapter 37 372 of the laws of 2016, is amended to read as follows: 38 § 743. Enforcement [by]. 1. By attorney general. In addition to the 39 other remedies provided, whenever there shall be a violation of this 40 article, application may be made by the attorney general in the name of 41 the people of the state of New York to a court or justice having juris- 42 diction by a special proceeding to issue an injunction, and upon notice 43 to the defendant of not less than five days, to enjoin and restrain the 44 continuance of such violations; and if it shall appear to the satisfac- 45 tion of the court or justice that the defendant has, in fact, violated 46 this article, an injunction may be issued by such court or justice, 47 enjoining and restraining any further violation, without requiring proof 48 that any person has, in fact, been injured or damaged thereby. In any 49 such proceeding, the court may make allowances to the attorney general 50 as provided in paragraph six of subdivision (a) of section eighty-three 51 hundred three of the civil practice law and rules, and direct restitu- 52 tion. Whenever the court shall determine that a violation of this arti- 53 cle has occurred, the court shall impose a civil penalty of not less 54 than one thousand dollars and not more than three thousand dollars for 55 each violation. In the case of an automobile broker, not less than one 56 thousand dollars and not more than three thousand dollars for eachA. 6655--B 8 1 violation; and in the case of a new automobile broker, not less than 2 four thousand dollars and not more than ten thousand dollars for each 3 violation. In connection with any such proposed application, the attor- 4 ney general is authorized to take proof and make a determination of the 5 relevant facts and to issue subpoenas in accordance with the civil prac- 6 tice law and rules. 7 In connection with any such proposed application, the attorney general 8 is authorized to take proof and make a determination of the relevant 9 facts and to issue subpoenas in accordance with the civil practice law 10 and rules. 11 2. By local authorities. Municipalities may, pursuant to local law, 12 act upon the business activity that is the subject of this article, 13 provided that no local government may diminish the protections or 14 requirements of this article or prevent enforcement of its provisions by 15 appropriate state officials. 16 3. By private party. Any persons injured by any violation of this 17 article may bring an action in his or her own name to enjoin such unlaw- 18 ful act or practice, an action to recover his or her actual damages and 19 statutory damages of four thousand dollars, or both such actions. In the 20 case of a new motor vehicle dealer, injury shall include depriving a new 21 motor vehicle dealer located closest to a lessee or purchaser the oppor- 22 tunity to bid on such lease or purchase as entitled by this article. 23 Damages shall include incentive payments, bonuses, holdbacks or similar 24 payments that would have been realized had a lessee or purchaser 25 purchased or leased such vehicle from the new motor vehicle dealer in 26 closest proximity to such lessee or purchaser but for the actions of a 27 person who knowingly aided the violation of the provisions of this arti- 28 cle. In any such judicial action or proceeding, the court may award 29 reasonable attorney's fees and costs. Such actions may be brought 30 regardless of whether or not the underlying violation is consumer-or- 31 iented or has a public impact. The court may, in its discretion, 32 increase the award of damages if the court finds the defendant willfully 33 or knowingly violated this section. The court shall award reasonable 34 attorney's fees and costs to a prevailing plaintiff. 35 § 15. Section 415 of the vehicle and traffic law is amended by adding 36 two new subdivisions 21 and 22 to read as follows: 37 21. Penalties and rights of action for failure to obtain a certificate 38 of registration as a new automobile broker pursuant to subdivision 39 three-a and paragraph b-3 of subdivision five of this section. a. The 40 commissioner, or any person designated by him or her, may proceed 41 against a party who has operated as a new automobile broker without 42 certificate of registration in accordance with the provisions of this 43 article, in any one or more proceedings and by order require the offend- 44 ing party to pay the people of this state a penalty in a sum not to 45 exceed two thousand dollars for each violation found to have been 46 committed. Civil penalties assessed under this subdivision shall be paid 47 to the commissioner for deposit into the state treasury, and unpaid 48 civil penalties may be recovered by the commissioner in a civil action 49 in the name of the commissioner. For the purposes of this subdivision, a 50 "violation" shall mean each vehicle sold or leased to a consumer for 51 which the party that failed to obtain certification as a new automobile 52 broker has served as a new automobile broker. 53 b. In addition to any civil action brought by the commissioner or any 54 person appointed by him, any persons injured by any violation of subdi- 55 vision three-a and paragraph b-3 of subdivision five of this section, 56 shall be entitled to sue for and have injunctive relief and damagesA. 6655--B 9 1 against, any party in violation of subdivision three-a and paragraph b-3 2 of subdivision five of this section in any court of the state having 3 jurisdiction over the parties. In the case of a new motor vehicle deal- 4 er, injury shall include depriving the new motor vehicle dealer located 5 closest to a lessee or purchaser the opportunity to bid on such lease or 6 purchase as entitled by this article. Damages shall include incentive 7 payments, bonuses, holdbacks or similar payments that would have been 8 realized had a lessee or purchaser purchased or leased such vehicle from 9 the new motor vehicle dealer in closest proximity to such lessee or 10 purchaser but for the actions of a person who knowingly aided the 11 violation of the provisions of this article. In any such judicial action 12 or proceeding, the court may award reasonable attorney's fees and costs. 13 Such actions may be brought regardless of whether or not the underlying 14 violation is consumer-oriented or has a public impact. The court may, in 15 its discretion, increase the award of damages if the court finds the 16 defendant willfully or knowingly violated this section. The court shall 17 award reasonable attorney's fees and costs to a prevailing plaintiff. 18 22. New automobile broker record requirements. a. New automobile 19 brokers shall maintain a permanently bound book in which shall be 20 recorded the make, model, year color and vehicle identification number 21 of all previously unregistered automobiles for which such broker has 22 provided a service of purchasing, arranging, assisting, facilitating or 23 effecting the purchase or lease of such automobile within any preceding 24 six-year period. Such book shall also have recorded a record of the 25 name and address of the purchaser or lessor of such automobile, the date 26 of sale or commencement of lease of such automobile and the name and 27 address of the dealer from which the automobile was purchased or leased. 28 b. New automobile brokers shall maintain a permanently bound book in 29 which shall be recorded all completed orders to search for a previously 30 unregistered automobile. Such book shall also have recorded a record of 31 the date of such order, the name and address of the person or entity 32 ordering such search, the automobile specifications provided by such 33 prospective buyer or lessee and the name and address of the dealers 34 solicited for a quote or offer on behalf of such prospective buyer or 35 lessee. 36 c. Such books shall be open for inspection by the commissioner, or his 37 or her agent, during reasonable business hours. The commissioner may 38 establish by rule the form of any such book. 39 d. As an alternative to a bound book, a new automobile broker may use 40 a computer and software approved by the department to maintain the 41 records required to be kept by this section, provided all information 42 required by paragraphs a and b of this section are recorded and the 43 records conform to such additional requirements as determined by the 44 commissioner. 45 § 16. Section 465 of the vehicle and traffic law is amended by adding 46 a new subdivision 8 to read as follows: 47 8. A franchisor may require a franchisee to submit to a franchisor the 48 name and registration number of any new automobile broker business that 49 arranged, assisted, facilitated or effected the purchase or lease of any 50 vehicle from such dealer. A franchisor may charge back the franchisee 51 any sales, advertising or marketing incentive payment or any other 52 payment or benefit associated with the sale or lease of such vehicle for 53 failure to submit such information. 54 § 17. This act shall take effect immediately; provided that all auto- 55 mobile brokers registered on the effective date of this act shall have 56 ninety days to come into compliance with the provisions of this act.
