Bill Text: NY S04364 | 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: Partisan Bill (Democrat 20-1)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO TRANSPORTATION [S04364 Detail]
Download: New_York-2019-S04364-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: Partisan Bill (Democrat 20-1)
Status: (Introduced - Dead) 2020-01-08 - REFERRED TO TRANSPORTATION [S04364 Detail]
Download: New_York-2019-S04364-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 4364--B 2019-2020 Regular Sessions IN SENATE March 11, 2019 ___________ Introduced by Sens. THOMAS, BROOKS, COMRIE, GAUGHRAN, GOUNARDES, JACK- SON, KAMINSKY, KAPLAN, LANZA, LIU, MAY, METZGER, MYRIE, PERSAUD, SALA- ZAR, SAVINO, SEPULVEDA, SKOUFIS, STAVISKY -- read twice and ordered printed, and when printed to be committed to the Committee on Trans- portation -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said committee and committed to the Committee on Finance -- committee discharged, bill amended, 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 15 or her, if such vehicles were purchased, acquired or otherwise obtained 16 by such person for the purpose of resale, will be regarded as a dealer. 17 For the purposes of this section, "offers for sale or lease" shall 18 include, but not be limited to, the act of drawing the public's atten- EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08916-08-9S. 4364--B 2 1 tion to, or the presentation or display of any motor vehicle, including 2 the posting of images of any such vehicle, together with an offer to 3 provide, the provision of, or a representation that such person may 4 provide a service of arranging, assisting, facilitating or effecting the 5 lease of such new motor vehicle, except this meaning shall not apply to 6 any activity of a cooperative or other advertising program or fund as 7 described in any franchise, as such term is defined by subdivision six 8 of section four hundred sixty-two of this title. Except as otherwise 9 provided in subdivisions three, five, six-b, and seven of this section, 10 the term "dealer" shall include a "new motor vehicle dealer" as defined 11 by paragraph f of this subdivision and a "qualified dealer" as defined 12 in paragraph g of this subdivision. 13 n. "New automobile broker business" shall have the same meaning as set 14 forth in subdivision four of section seven hundred thirty-six of the 15 general business law. 16 § 2. Section 736 of the general business law is amended by adding a 17 new subdivision 4 to read as follows: 18 4. "New automobile broker business" means any person who, for a fee, 19 commission or other valuable consideration, regardless of whether such 20 fee, commission or consideration is paid directly by a consumer, offers 21 to provide, provides or represents that he or she will provide a service 22 of purchasing, arranging, assisting, facilitating or effecting the 23 purchase or lease of a previously unregistered automobile; through a new 24 motor vehicle dealer, as agent, broker, or intermediary for a consumer. 25 "New automobile broker business" does not include any person registered 26 as a new vehicle dealer for the new automobile brand or brands for which 27 such services are provided, pursuant to article sixteen of the vehicle 28 and traffic law nor any bona fide employee of such a registered dealer 29 while acting for such dealer. 30 § 3. Subdivision 3-a and paragraph b-3 of subdivision 5 of section 415 31 of the vehicle and traffic law, as added by chapter 477 of the laws of 32 2017, are amended to read as follows: 33 3-a. Automobile broker business [registration] or new automobile 34 broker business. a. No person shall engage in the automobile broker 35 business, the new automobile broker business or represent or advertise 36 that he or she is engaged or intends to engage in the automobile broker 37 business or new automobile broker business in this state, unless there 38 shall have been issued to him or her a certificate of registration as an 39 automobile broker business or new automobile broker business, as the 40 case may be, by the commissioner under this section pursuant to an 41 application for registration submitted pursuant to subdivision five of 42 this section. 43 b. The commissioner shall not issue any certificate of registration 44 authorized by this section to any dealer, franchisee, franchisor, 45 manufacturer, distributor, distributor branch or factory branch, as such 46 terms are defined in section four hundred sixty-two of this title, or to 47 any subsidiary, affiliate or controlled entity thereof. 48 c. As a condition of any certificate of registration issued pursuant 49 to this subdivision, a new automobile broker business shall have, and 50 continuously maintain, a place of business in this state for which it 51 shall keep and maintain evidence that all necessary approvals, licenses 52 and/or permits have been obtained from all local governing bodies to 53 operate such place of business with customer or client traffic. 54 d. Every registered new automobile broker shall prominently and 55 conspicuously post, in such a manner that it is likely to be noticeableS. 4364--B 3 1 to anyone entering its premises, its official business certificate of 2 registration and a sign, which sign shall clearly state: 3 "(Name of registered new automobile broker) is not a franchised new 4 motor vehicle dealership. We are not authorized to perform recall or 5 original factory warranty work. If you order a search for a new motor 6 vehicle from this broker, we must solicit at least three bona fide bids 7 for a new motor vehicle on your behalf, including from your local deal- 8 er." 9 e. A new automobile broker business shall not provide, offer to 10 provide, or represent that he or she will provide a service of purchas- 11 ing, arranging, assisting, facilitating or effecting the purchase or 12 lease of a previously unregistered automobile with a dealer located in 13 any other state unless such state affords lawful means for the same 14 business activity, such standards and requirements are equivalent to 15 those contained in this article and article thirty-five-B of the general 16 business law, the new automobile broker business is registered, permit- 17 ted or licensed to perform such business activity in such other state 18 and is otherwise in good standing with each governmental agency of such 19 other state responsible for regulating such business activity. The 20 commissioner of motor vehicles shall be empowered to determine the 21 substantial equivalence of such other state laws pertaining to the 22 registration, permitting or licensure of such businesses. 23 b-3. In the case of an application for registration as an automobile 24 broker business or new automobile broker business, the name and address 25 of the surety company which will issue the bond required by subdivision 26 one of section seven hundred forty-a of the general business law and a 27 statement indicating any interest in the applicant's business entity by 28 a person or entity described in paragraph (f) of subdivision one or 29 paragraph f of subdivision seven of this section. If the bond is to be 30 issued by an authorized agent of the surety company licensed by the 31 state, then the name and address of that agent may be provided in lieu 32 of the information concerning the surety company. 33 § 4. Subdivision 1 of section 736-a of the general business law, as 34 added by chapter 477 of the laws of 2017, is amended and a new subdivi- 35 sion 3 is added to read as follows: 36 1. (a) No person shall engage in business as an automobile broker 37 business or as a new automobile broker business, as such terms are 38 defined in section seven hundred thirty-six of this article, without 39 first having been issued a certificate of registration for an automobile 40 broker business or new automobile broker business pursuant to paragraph 41 c of subdivision seven of section four hundred fifteen of the vehicle 42 and traffic law. A certificate of registration for a new automobile 43 broker business is valid for a period of two years. 44 (b) No new automobile broker business shall represent or accept 45 payment from, either directly or indirectly, a franchisee, dealer, fran- 46 chisor, manufacturer and/or distributor, as such terms are defined in 47 sections four hundred fifteen and four hundred sixty-two of the vehicle 48 and traffic law. 49 (c) No new automobile broker business shall provide, offer to provide, 50 or represent that he or she will provide a service of purchasing, 51 arranging, assisting, facilitating or effecting the purchase or lease of 52 a previously unregistered automobile with a dealer located in any other 53 state unless such state affords lawful means for the same business 54 activity, such standards and requirements set forth in the laws of such 55 other state are equivalent to those contained in this article, the new 56 automobile broker business has been registered, permitted or licensed toS. 4364--B 4 1 perform such business activity in such other state and is otherwise in 2 good standing with each agency of such other state responsible for regu- 3 lating such business activity. The secretary of state shall be empowered 4 to determine the substantial equivalence of such other state laws 5 pertaining to the regulation of such business activity, including 6 consumer protections in any such law. 7 3. The commissioner of motor vehicles shall make necessary rules and 8 regulations as may be appropriate for the proper enforcement of the 9 provisions of this section. 10 § 5. The general business law is amended by adding a new section 741-c 11 to read as follows: 12 § 741-c. Prohibitions related to private information. No person regis- 13 tered under this article shall request, receive, accept, handle, store 14 or transmit the private information, as such term is defined in para- 15 graph (b) of subdivision one of section eight hundred ninety-nine-aa of 16 this chapter, of any consumer. 17 § 6. Section 737 of the general business law, as added by chapter 616 18 of the laws of 1988, is amended to read as follows: 19 § 737. Advance fees prohibited. No automobile broker business or new 20 automobile broker business shall solicit, receive or collect from a 21 consumer any fee, or commission, in advance of the performance of those 22 services specified in the contract as required by section seven hundred 23 thirty-eight of this article. 24 § 7. The opening paragraph of subdivision 1 of section 738 of the 25 general business law, as amended by chapter 28 of the laws of 2018, is 26 amended to read as follows: 27 Every contract between a consumer and an automobile broker business, 28 which for the purposes of this section shall include new automobile 29 broker businesses, for the purchase of an automobile shall be in writ- 30 ing, shall be dated, shall contain the street address of the automobile 31 broker business and the consumer and shall be signed by the consumer and 32 by the automobile broker business. Every contract shall comply with the 33 requirements set forth in this section and contain the following: 34 § 8. Section 740 of the general business law, as added by chapter 616 35 of the laws of 1988, is amended to read as follows: 36 § 740. Escrow required for advance payments. All monies paid by a 37 consumer to an automobile broker business or a new automobile broker 38 business in connection with a transaction covered by this article shall 39 be trust funds in the possession of such automobile broker business or 40 new automobile broker business and shall be deposited by it within five 41 days after receipt thereof, in an account in a banking organization 42 within the state. The automobile broker business or new automobile 43 broker business shall thereupon notify in writing the consumer, giving 44 the name and address of the banking organization and the amount deposit- 45 ed. The monies shall be held on deposit until fully applied to the 46 contract price at the time the automobile is delivered to the consumer, 47 unless sooner repaid in accordance with the provisions of this article. 48 § 9. Section 740-a of the general business law, as added by chapter 49 579 of the laws of 2011 and subdivision 1 as amended by chapter 477 of 50 the laws of 2017, is amended to read as follows: 51 § 740-a. Automobile broker business and new automobile broker business 52 surety bond. 1. Automobile broker businesses shall obtain and continue 53 in effect a surety bond in an amount of one hundred thousand dollars 54 executed by a surety company authorized to transact business in the 55 state by the department of financial services of the state or its 56 successor. New automobile broker businesses shall obtain and continueS. 4364--B 5 1 in effect a surety bond in an amount of two hundred fifty thousand 2 dollars executed by a surety company authorized to transact business in 3 the state by the department of financial services of the state or its 4 successor. The bonds shall be approved as to form by the secretary of 5 state and shall be conditioned on the automobile broker business' or new 6 automobile broker business' payment of all valid bank drafts, including 7 checks, drawn for the purchase of motor vehicles and safekeeping of all 8 customer deposits related to the sale of a motor vehicle between the 9 time of receipt of such customer deposit and the transfer of good title 10 to the vehicle to the customer. 11 2. Recovery against a bond may be made by a person, including the 12 state, who obtains a judgment against the automobile broker business or 13 new automobile broker business for an act or omission on which the bond 14 is conditioned if the act or omission occurred during the term of the 15 bond. The total liability imposed on the surety under this section for 16 all breaches of the bond condition is limited to the face amount of the 17 bond. Such liability may include, but is not limited to, the amount of 18 the valid bank drafts, including checks, drawn by the automobile broker 19 business or new automobile broker business for the purchase of motor 20 vehicles. In no event shall the surety on a bond be liable for total 21 claims in excess of the bond amount, regardless of the number or nature 22 of claims made against the bond or the number of years the bond remained 23 in force. 24 3. Any surety issuing a bond pursuant to this subdivision shall be 25 required to provide sixty days' notice to the secretary of state prior 26 to the effective date of cancellation of the bond. 27 § 10. Section 741 of the general business law, as added by chapter 616 28 of the laws of 1988, is amended to read as follows: 29 § 741. Deceptive acts and frauds prohibited. 1. It is hereby declared 30 to be a deceptive trade practice and unlawful for an automobile broker 31 business or new automobile broker business to misrepresent directly or 32 indirectly in its advertising, promotional materials, sales presenta- 33 tion, or in any manner: 34 [1.] (a) The nature of the services to be performed and in the case of 35 a new automobile broker that a third party will be paying for any such 36 services; 37 [2.] (b) The time within which the services will be performed; 38 [3.] (c) The cost of the services to be performed; [and394.] (d) The ability of the automobile broker business or new automo- 40 bile broker business to perform the services; and 41 (e) That the automobile broker business or new automobile broker busi- 42 ness is affiliated with any automobile manufacturer and/or distributor, 43 including the use of any trademarks or copyrighted material without the 44 express, written consent of the owner of such material. 45 2. It shall be a fraudulent business practice for an automobile broker 46 business or new automobile broker business to refuse to disclose to a 47 motor vehicle dealer or new motor vehicle dealer the registration number 48 provided by the department of motor vehicles pursuant to section four 49 hundred fifteen of the vehicle and traffic law. Furthermore, it shall 50 also be a fraudulent business practice for an automobile broker business 51 or new automobile broker business to make any misrepresentation to a 52 motor vehicle dealer or new motor vehicle dealer regarding the eligibil- 53 ity of any consumer for any discounts, reductions or any benefit 54 programs regarding the sale or lease of a motor vehicle. 55 3. It shall be a fraudulent business practice for a new automobile 56 broker business to fail to make a bona fide attempt to obtain a quote orS. 4364--B 6 1 offer from at least three unaffiliated dealers on behalf of a prospec- 2 tive buyer or lessee for a vehicle meeting the prospective buyer or 3 lessee's specifications, including the new motor vehicle dealer located 4 in closest proximity to the address of such prospective buyer or 5 lessee's home or, in the case of any entity, its place of doing busi- 6 ness. 7 4. It shall be a fraudulent business practice for a new automobile 8 broker business to fail to act for the benefit of the prospective buyer 9 or lessee, including by failing to make reasonable efforts to obtain the 10 lowest possible price, down payment, number of payments, amount of 11 payments, finance charges, annual percentage rate and/or fees for a new 12 motor vehicle that meets the specifications of such prospective buyer or 13 lessee. 14 § 11. Section 741-a of the general business law, as amended by chapter 15 477 of the laws of 2017, is amended to read as follows: 16 § 741-a. Advertising. Automobile broker businesses and new automobile 17 broker businesses shall clearly and conspicuously disclose the following 18 in all advertisements in any medium, and in any print advertisement such 19 disclosures shall not appear in any footnotes and shall be situated in 20 the top half of any such advertisement in an easily readable typeface: 21 (a) That the automobile broker business or new automobile broker busi- 22 ness is not a registered new motor vehicle dealer but is a registered 23 automobile broker business or new automobile broker business as defined 24 in section four hundred fifteen of the vehicle and traffic law; 25 (b) The registration number issued to the automobile broker business 26 or new automobile broker business pursuant to section four hundred 27 fifteen of the vehicle and traffic law; 28 (c) Whether any fees may be imposed by the automobile broker business 29 or new automobile broker business for services rendered. Details of such 30 compensation shall be provided by the automobile broker business or new 31 automobile broker business upon request by the consumer; and 32 (d) That no warranty repair services will be provided by the automo- 33 bile broker business or new automobile broker business. 34 § 12. Section 741-b of the general business law, as added by chapter 35 28 of the laws of 2018, is amended to read as follows: 36 § 741-b. [Disclosure] Disclosures. 1. An automobile broker business 37 or new automobile broker business shall provide a disclosure at the time 38 such automobile broker business or new automobile broker business takes 39 an order to search for a leased or purchased vehicle meeting the 40 prospective buyer or lessee's specifications. Such disclosure shall 41 provide the amount of any fees, commissions or other valuable consider- 42 ation the automobile broker business or new automobile broker business 43 expects to receive for any assistance the automobile broker business 44 provides in effecting the lease or purchase transaction, including any 45 reasonably foreseeable fees or charges, including delivery fees. In the 46 case of an automobile broker business this shall include, if known, any 47 payments from a dealer, lessor or any other person or entity for any 48 assistance the automobile broker business provides in effecting the 49 lease or purchase transaction. If the amount of any such fees, commis- 50 sions or other valuable consideration the automobile broker business 51 expects to receive is unknown at the time of the required disclosure, 52 the automobile broker business shall disclose: (a) whether it has a 53 contract with any dealer, lessor or any other person or entity for the 54 provision of assistance in effecting a lease transaction; and (b) wheth- 55 er the automobile broker business may be compensated by the dealer, 56 lessor or any other person or entity for any assistance in effectingS. 4364--B 7 1 such lease transaction. Nothing in this subdivision shall be construed 2 to permit the payment of any fees, commissions or other valuable consid- 3 eration to a new automobile broker business by any dealer. 4 2. A new automobile broker business shall provide an additional 5 disclosure at the time such new automobile broker business takes an 6 order to search for a vehicle meeting the prospective buyer or lessee's 7 specifications. Such additional disclosure shall state that the broker 8 shall make a bona fide attempt to obtain a bid, quote or offer from at 9 least three unaffiliated dealers on behalf of the prospective buyer or 10 lessee for a vehicle meeting the prospective buyer or lessee's specifi- 11 cations, including from the new motor vehicle dealer of such line make 12 located closest to the home or place of business of such prospective 13 buyer and that the new automobile broker has a duty to act for the bene- 14 fit of the prospective buyer or lessee, including by making reasonable 15 efforts to obtain the lowest possible price, down payment, number of 16 payments, amount of payments, finance charges, annual percentage rate 17 and/or fees. 18 3. Each disclosure required by this section shall be acknowledged in 19 writing by each respective prospective buyer or lessee. 20 § 13. Section 742 of the general business law, as added by chapter 616 21 of the laws of 1988, is amended to read as follows: 22 § 742. Action for recovery of damages by consumer. Any consumer 23 injured by a violation of this article or by the breach by an automobile 24 broker business or new automobile broker business of a contract which 25 has been entered into pursuant to section seven hundred thirty-nine of 26 this article may bring an action for recovery of damages. Judgment shall 27 be entered in favor of a consumer in an amount not to exceed three times 28 the actual damages, but in no case less than the amount paid by the 29 buyer to the automobile broker business or new automobile broker busi- 30 ness. The court may award reasonable attorney's fees to a prevailing 31 plaintiff. 32 § 14. Section 743 of the general business law, as amended by chapter 33 372 of the laws of 2016, is amended to read as follows: 34 § 743. Enforcement [by]. 1. By attorney general. In addition to the 35 other remedies provided, whenever there shall be a violation of this 36 article, application may be made by the attorney general in the name of 37 the people of the state of New York to a court or justice having juris- 38 diction by a special proceeding to issue an injunction, and upon notice 39 to the defendant of not less than five days, to enjoin and restrain the 40 continuance of such violations; and if it shall appear to the satisfac- 41 tion of the court or justice that the defendant has, in fact, violated 42 this article, an injunction may be issued by such court or justice, 43 enjoining and restraining any further violation, without requiring proof 44 that any person has, in fact, been injured or damaged thereby. In any 45 such proceeding, the court may make allowances to the attorney general 46 as provided in paragraph six of subdivision (a) of section eighty-three 47 hundred three of the civil practice law and rules, and direct restitu- 48 tion. Whenever the court shall determine that a violation of this arti- 49 cle has occurred, the court shall impose a civil penalty of not less 50 than one thousand dollars and not more than three thousand dollars for 51 each violation. In the case of an automobile broker, not less than one 52 thousand dollars and not more than three thousand dollars for each 53 violation; and in the case of a new automobile broker, not less than 54 four thousand dollars and not more than ten thousand dollars for each 55 violation. In connection with any such proposed application, the attor- 56 ney general is authorized to take proof and make a determination of theS. 4364--B 8 1 relevant facts and to issue subpoenas in accordance with the civil prac- 2 tice law and rules. 3 In connection with any such proposed application, the attorney general 4 is authorized to take proof and make a determination of the relevant 5 facts and to issue subpoenas in accordance with the civil practice law 6 and rules. 7 2. By local authorities. Municipalities may, pursuant to local law, 8 act upon the business activity that is the subject of this article, 9 provided that no local government may diminish the protections or 10 requirements of this article or prevent enforcement of its provisions by 11 appropriate state officials. 12 3. By private party. Any persons injured by any violation of this 13 article may bring an action in his or her own name to enjoin such unlaw- 14 ful act or practice, an action to recover his or her actual damages and 15 statutory damages of four thousand dollars, or both such actions. In the 16 case of a new motor vehicle dealer, injury shall include depriving a new 17 motor vehicle dealer located closest to a lessee or purchaser the oppor- 18 tunity to bid on such lease or purchase as entitled by this article. 19 Damages shall include incentive payments, bonuses, holdbacks or similar 20 payments that would have been realized had a lessee or purchaser 21 purchased or leased such vehicle from the new motor vehicle dealer in 22 closest proximity to such lessee or purchaser but for the actions of a 23 person who knowingly aided the violation of the provisions of this arti- 24 cle. In any such judicial action or proceeding, the court may award 25 reasonable attorney's fees and costs. Such actions may be brought 26 regardless of whether or not the underlying violation is consumer-or- 27 iented or has a public impact. The court may, in its discretion, 28 increase the award of damages if the court finds the defendant willfully 29 or knowingly violated this section. The court shall award reasonable 30 attorney's fees and costs to a prevailing plaintiff. 31 § 15. Section 415 of the vehicle and traffic law is amended by adding 32 two new subdivisions 21 and 22 to read as follows: 33 21. Penalties and rights of action for failure to obtain a certificate 34 of registration as a new automobile broker pursuant to subdivision 35 three-a and paragraph b-3 of subdivision five of this section. a. The 36 commissioner, or any person designated by him or her, may proceed 37 against a party who has operated as a new automobile broker without 38 certificate of registration in accordance with the provisions of this 39 article, in any one or more proceedings and by order require the offend- 40 ing party to pay the people of this state a penalty in a sum not to 41 exceed two thousand dollars for each violation found to have been 42 committed. Civil penalties assessed under this subdivision shall be paid 43 to the commissioner for deposit into the state treasury, and unpaid 44 civil penalties may be recovered by the commissioner in a civil action 45 in the name of the commissioner. For the purposes of this subdivision, a 46 "violation" shall mean each vehicle sold or leased to a consumer for 47 which the party that failed to obtain certification as a new automobile 48 broker has served as a new automobile broker. 49 b. In addition to any civil action brought by the commissioner or any 50 person appointed by him, any persons injured by any violation of subdi- 51 vision three-a and paragraph b-3 of subdivision five of this section, 52 shall be entitled to sue for and have injunctive relief and damages 53 against, any party in violation of subdivision three-a and paragraph b-3 54 of subdivision five of this section in any court of the state having 55 jurisdiction over the parties. In the case of a new motor vehicle deal- 56 er, injury shall include depriving the new motor vehicle dealer locatedS. 4364--B 9 1 closest to a lessee or purchaser the opportunity to bid on such lease or 2 purchase as entitled by this article. Damages shall include incentive 3 payments, bonuses, holdbacks or similar payments that would have been 4 realized had a lessee or purchaser purchased or leased such vehicle from 5 the new motor vehicle dealer in closest proximity to such lessee or 6 purchaser but for the actions of a person who knowingly aided the 7 violation of the provisions of this article. In any such judicial action 8 or proceeding, the court may award reasonable attorney's fees and costs. 9 Such actions may be brought regardless of whether or not the underlying 10 violation is consumer-oriented or has a public impact. The court may, in 11 its discretion, increase the award of damages if the court finds the 12 defendant willfully or knowingly violated this section. The court shall 13 award reasonable attorney's fees and costs to a prevailing plaintiff. 14 22. New automobile broker record requirements. a. New automobile 15 brokers shall maintain a permanently bound book in which shall be 16 recorded the make, model, year color and vehicle identification number 17 of all previously unregistered automobiles for which such broker has 18 provided a service of purchasing, arranging, assisting, facilitating or 19 effecting the purchase or lease of such automobile within any preceding 20 six-year period. Such book shall also have recorded a record of the 21 name and address of the purchaser or lessor of such automobile, the date 22 of sale or commencement of lease of such automobile and the name and 23 address of the dealer from which the automobile was purchased or leased. 24 b. New automobile brokers shall maintain a permanently bound book in 25 which shall be recorded all completed orders to search for a previously 26 unregistered automobile. Such book shall also have recorded a record of 27 the date of such order, the name and address of the person or entity 28 ordering such search, the automobile specifications provided by such 29 prospective buyer or lessee and the name and address of the dealers 30 solicited for a quote or offer on behalf of such prospective buyer or 31 lessee. 32 c. Such books shall be open for inspection by the commissioner, or his 33 or her agent, during reasonable business hours. The commissioner may 34 establish by rule the form of any such book. 35 d. As an alternative to a bound book, a new automobile broker may use 36 a computer and software approved by the department to maintain the 37 records required to be kept by this section, provided all information 38 required by paragraphs a and b of this section are recorded and the 39 records conform to such additional requirements as determined by the 40 commissioner. 41 § 16. Section 465 of the vehicle and traffic law is amended by adding 42 a new subdivision 8 to read as follows: 43 8. A franchisor may require a franchisee to submit to a franchisor the 44 name and registration number of any new automobile broker business that 45 arranged, assisted, facilitated or effected the purchase or lease of any 46 vehicle from such dealer. A franchisor may charge back the franchisee 47 any sales, advertising or marketing incentive payment or any other 48 payment or benefit associated with the sale or lease of such vehicle for 49 failure to submit such information. 50 § 17. This act shall take effect immediately; provided that all auto- 51 mobile brokers registered on the effective date of this act shall have 52 ninety days to come into compliance with the provisions of this act.
