Bill Text: NY S04364 | 2019-2020 | General Assembly | Amended
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--C 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 -- 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD08916-16-9S. 4364--C 2 1 include, but not be limited to, the act of drawing the public's atten- 2 tion to, or the presentation or display of any motor vehicle, including 3 the posting of images of any such vehicle, together with an offer to 4 provide, the provision of, or a representation that such person may 5 provide a service of arranging, assisting, facilitating or effecting the 6 lease of such new motor vehicle, except this meaning shall not apply to 7 any activity of a cooperative or other advertising program or fund as 8 described in any franchise, as such term is defined by subdivision six 9 of section four hundred sixty-two of this title. Except as otherwise 10 provided in subdivisions three, five, six-b, and seven of this section, 11 the term "dealer" shall include a "new motor vehicle dealer" as defined 12 by paragraph f of this subdivision and a "qualified dealer" as defined 13 in paragraph g of this subdivision. 14 n. "New automobile broker business" shall have the same meaning as set 15 forth in subdivision four of section seven hundred thirty-six of the 16 general business law. 17 § 2. Section 736 of the general business law is amended by adding two 18 new subdivisions 4 and 5 to read as follows: 19 4. "New automobile broker business" means any person who, for a fee, 20 commission or other valuable consideration, regardless of whether such 21 fee, commission or consideration is paid directly by a consumer, offers 22 to provide, provides or represents that he or she will provide a service 23 of purchasing, arranging, assisting, facilitating or effecting the 24 purchase or lease of a previously unregistered automobile; through a new 25 motor vehicle dealer, as agent, broker, or intermediary for a consumer. 26 "New automobile broker business" does not include any person registered 27 as a new vehicle dealer for the new automobile brand or brands for which 28 such services are provided, pursuant to article sixteen of the vehicle 29 and traffic law nor any bona fide employee of such a registered dealer 30 while acting for such dealer, nor any motor vehicle franchisor, manufac- 31 turer or distributor for the new automobile brand or brands for which 32 such services are provided. 33 5. Notwithstanding any other subdivision of this section, the terms 34 "automobile broker business" and "new automobile broker business" shall 35 not include any entity that provides a service of purchasing, arranging, 36 assisting, facilitating, or effecting the purchase or lease of a previ- 37 ously unregistered automobile as an agent, broker, or intermediary for a 38 consumer, if that entity facilitates the purchase or lease of a new 39 motor vehicle in this state from a new motor vehicle dealer only by 40 means of an online new automobile referral service. For the purposes of 41 this subdivision, "online new automobile referral service" means an 42 organization, including, but not limited to a corporation, limited 43 liability company, partnership, sole proprietor, or any other entity, 44 that: 45 (a) operates an interactive website and/or smartphone application that 46 facilitates the provision of services or consummation of transactions by 47 marketplace entities and persons seeking such services or transactions 48 on a digital platform specifically designed and built for online motor 49 vehicle lease transactions; 50 (b) lists motor vehicles provided by multiple new motor vehicle deal- 51 ers in this state; 52 (c) provides services, or the transactions facilitated thereby, on a 53 multi-state basis pursuant to written contracts with new motor vehicle 54 dealers which establish a predetermined price for the services to be 55 rendered; andS. 4364--C 3 1 (d) involves no in-person meeting as between a prospective lessee or 2 purchaser and the operator of such interactive website and/or smartphone 3 application. 4 § 3. Subdivision 3-a and paragraph b-3 of subdivision 5 of section 415 5 of the vehicle and traffic law, as added by chapter 477 of the laws of 6 2017, are amended to read as follows: 7 3-a. Automobile broker business [registration] or new automobile 8 broker business. a. No person shall engage in the automobile broker 9 business, the new automobile broker business or represent or advertise 10 that he or she is engaged or intends to engage in the automobile broker 11 business or new automobile broker business in this state, unless there 12 shall have been issued to him or her a certificate of registration as an 13 automobile broker business or new automobile broker business, as the 14 case may be, by the commissioner under this section pursuant to an 15 application for registration submitted pursuant to subdivision five of 16 this section. 17 b. The commissioner shall not issue any certificate of registration 18 authorized by this subdivision to any dealer, franchisee, franchisor, 19 manufacturer, distributor, distributor branch or factory branch, as such 20 terms are defined in section four hundred sixty-two of this title, or to 21 any subsidiary, affiliate or controlled entity thereof. 22 c. As a condition of any certificate of registration issued pursuant 23 to this subdivision, a new automobile broker business shall have, and 24 continuously maintain, a place of business in this state for which it 25 shall keep and maintain evidence that all necessary approvals, licenses 26 and/or permits have been obtained from all local governing bodies to 27 operate such place of business with customer or client traffic. 28 d. Every registered new automobile broker shall prominently and 29 conspicuously post, in such a manner that it is likely to be noticeable 30 to anyone entering its premises, its official business certificate of 31 registration and a sign, which sign shall clearly state: 32 "(Name of registered new automobile broker) is not a franchised new 33 motor vehicle dealership. We are not authorized or approved by a 34 manufacturer or distributor to sell a motor vehicle or perform recall or 35 original factory warranty work. If you order a search for a new motor 36 vehicle from this broker, we must make a bona fide effort to solicit 37 bids from at least three unaffiliated new motor vehicle dealers for a 38 new motor vehicle on your behalf, including from your local dealer." 39 e. A new automobile broker business shall not provide, offer to 40 provide, or represent that he or she will provide a service of purchas- 41 ing, arranging, assisting, facilitating or effecting the purchase or 42 lease of a previously unregistered automobile with a dealer located in 43 any other state unless such state affords lawful means for the same 44 business activity, such standards and requirements are equivalent to 45 those contained in this article and article thirty-five-B of the general 46 business law, the new automobile broker business is registered, permit- 47 ted or licensed to perform such business activity in such other state 48 and is otherwise in good standing with each governmental agency of such 49 other state responsible for regulating such business activity. The 50 commissioner of motor vehicles shall be empowered to determine the 51 substantial equivalence of such other state laws pertaining to the 52 registration, permitting or licensure of such businesses. 53 f. Nothing in this subdivision shall be construed to prohibit a fran- 54 chisor, manufacturer, or distributor from sponsoring activities intended 55 to generate leads toward the sale or lease of a new motor vehicle by a 56 franchisee.S. 4364--C 4 1 b-3. In the case of an application for registration as an automobile 2 broker business or new automobile broker business, the name and address 3 of the surety company which will issue the bond required by subdivision 4 one of section seven hundred forty-a of the general business law and a 5 statement indicating any interest in the applicant's business entity by 6 a person or entity described in paragraph (f) of subdivision one or 7 paragraph f of subdivision seven of this section. If the bond is to be 8 issued by an authorized agent of the surety company licensed by the 9 state, then the name and address of that agent may be provided in lieu 10 of the information concerning the surety company. 11 § 4. Subdivision 1 of section 736-a of the general business law, as 12 added by chapter 477 of the laws of 2017, is amended and a new subdivi- 13 sion 3 is added to read as follows: 14 1. (a) No person shall engage in business as an automobile broker 15 business or as a new automobile broker business, as such terms are 16 defined in section seven hundred thirty-six of this article, without 17 first having been issued a certificate of registration for an automobile 18 broker business or new automobile broker business pursuant to paragraph 19 c of subdivision seven of section four hundred fifteen of the vehicle 20 and traffic law. A certificate of registration for a new automobile 21 broker business is valid for a period of two years. 22 (b) No new automobile broker business shall represent or accept 23 payment from, either directly or indirectly, a franchisee, dealer, fran- 24 chisor, manufacturer and/or distributor, as such terms are defined in 25 sections four hundred fifteen and four hundred sixty-two of the vehicle 26 and traffic law. 27 (c) No new automobile broker business shall provide, offer to provide, 28 or represent that he or she will provide a service of purchasing, 29 arranging, assisting, facilitating or effecting the purchase or lease of 30 a previously unregistered automobile with a dealer located in any other 31 state unless such state affords lawful means for the same business 32 activity, such standards and requirements set forth in the laws of such 33 other state are equivalent to those contained in this article, the new 34 automobile broker business has been registered, permitted or licensed to 35 perform such business activity in such other state and is otherwise in 36 good standing with each agency of such other state responsible for regu- 37 lating such business activity. The commissioner of motor vehicles shall 38 be empowered to determine the substantial equivalence of such other 39 state laws pertaining to the regulation of such business activity, 40 including consumer protections in any such law. 41 3. The commissioner of motor vehicles shall make necessary rules and 42 regulations as may be appropriate for the proper enforcement of the 43 provisions of this section. 44 § 5. The general business law is amended by adding a new section 741-c 45 to read as follows: 46 § 741-c. Prohibitions related to private information. No person regis- 47 tered under this article shall request, receive, accept, handle, store 48 or transmit the private information, as such term is defined in para- 49 graph (b) of subdivision one of section eight hundred ninety-nine-aa of 50 this chapter, of any consumer. 51 § 6. Section 737 of the general business law, as added by chapter 616 52 of the laws of 1988, is amended to read as follows: 53 § 737. Advance fees prohibited. No automobile broker business or new 54 automobile broker business shall solicit, receive or collect from a 55 consumer any fee, or commission, in advance of the performance of thoseS. 4364--C 5 1 services specified in the contract as required by section seven hundred 2 thirty-eight of this article. 3 § 7. The opening paragraph of subdivision 1 of section 738 of the 4 general business law, as amended by chapter 28 of the laws of 2018, is 5 amended to read as follows: 6 Every contract between a consumer and an automobile broker business, 7 which for the purposes of this section shall include new automobile 8 broker businesses, for the purchase of an automobile shall be in writ- 9 ing, shall be dated, shall contain the street address of the automobile 10 broker business and the consumer and shall be signed by the consumer and 11 by the automobile broker business. Every contract shall comply with the 12 requirements set forth in this section and contain the following: 13 § 8. Section 740 of the general business law, as added by chapter 616 14 of the laws of 1988, is amended to read as follows: 15 § 740. Escrow required for advance payments. All monies paid by a 16 consumer to an automobile broker business or a new automobile broker 17 business in connection with a transaction covered by this article shall 18 be trust funds in the possession of such automobile broker business or 19 new automobile broker business and shall be deposited by it within five 20 days after receipt thereof, in an account in a banking organization 21 within the state. The automobile broker business or new automobile 22 broker business shall thereupon notify in writing the consumer, giving 23 the name and address of the banking organization and the amount deposit- 24 ed. The monies shall be held on deposit until fully applied to the 25 contract price at the time the automobile is delivered to the consumer, 26 unless sooner repaid in accordance with the provisions of this article. 27 § 9. Section 740-a of the general business law, as added by chapter 28 579 of the laws of 2011 and subdivision 1 as amended by chapter 477 of 29 the laws of 2017, is amended to read as follows: 30 § 740-a. Automobile broker business and new automobile broker business 31 surety bond. 1. Automobile broker businesses shall obtain and continue 32 in effect a surety bond in an amount of one hundred thousand dollars 33 executed by a surety company authorized to transact business in the 34 state by the department of financial services of the state or its 35 successor. New automobile broker businesses shall obtain and continue 36 in effect a surety bond in an amount of two hundred fifty thousand 37 dollars executed by a surety company authorized to transact business in 38 the state by the department of financial services of the state or its 39 successor. The bonds shall be approved as to form by the secretary of 40 state and shall be conditioned on the automobile broker business' or new 41 automobile broker business' payment of all valid bank drafts, including 42 checks, drawn for the purchase of motor vehicles and safekeeping of all 43 customer deposits related to the sale of a motor vehicle between the 44 time of receipt of such customer deposit and the transfer of good title 45 to the vehicle to the customer. 46 2. Recovery against a bond may be made by a person, including the 47 state, who obtains a judgment against the automobile broker business or 48 new automobile broker business for an act or omission on which the bond 49 is conditioned if the act or omission occurred during the term of the 50 bond. The total liability imposed on the surety under this section for 51 all breaches of the bond condition is limited to the face amount of the 52 bond. Such liability may include, but is not limited to, the amount of 53 the valid bank drafts, including checks, drawn by the automobile broker 54 business or new automobile broker business for the purchase of motor 55 vehicles. In no event shall the surety on a bond be liable for total 56 claims in excess of the bond amount, regardless of the number or natureS. 4364--C 6 1 of claims made against the bond or the number of years the bond remained 2 in force. 3 3. Any surety issuing a bond pursuant to this subdivision shall be 4 required to provide sixty days' notice to the secretary of state prior 5 to the effective date of cancellation of the bond. 6 § 10. Section 741 of the general business law, as added by chapter 616 7 of the laws of 1988, is amended to read as follows: 8 § 741. Deceptive acts and frauds prohibited. 1. It is hereby declared 9 to be a deceptive trade practice and unlawful for an automobile broker 10 business or new automobile broker business to misrepresent directly or 11 indirectly in its advertising, promotional materials, sales presenta- 12 tion, or in any manner: 13 [1.] (a) The nature of the services to be performed and in the case of 14 a new automobile broker that a third party will be paying for any such 15 services; 16 [2.] (b) The time within which the services will be performed; 17 [3.] (c) The cost of the services to be performed; [and184.] (d) The ability of the automobile broker business or new automo- 19 bile broker business to perform the services; and 20 (e) That the automobile broker business or new automobile broker busi- 21 ness is affiliated with any automobile manufacturer and/or distributor, 22 including the use of any trademarks or copyrighted material without the 23 express, written consent of the owner of such material. 24 2. It shall be a fraudulent business practice for an automobile broker 25 business or new automobile broker business to refuse to disclose to a 26 motor vehicle dealer or new motor vehicle dealer the registration number 27 provided by the department of motor vehicles pursuant to section four 28 hundred fifteen of the vehicle and traffic law. Furthermore, it shall 29 also be a fraudulent business practice for an automobile broker business 30 or new automobile broker business to make any misrepresentation to a 31 motor vehicle dealer or new motor vehicle dealer regarding the eligibil- 32 ity of any consumer for any discounts, reductions or any benefit 33 programs regarding the sale or lease of a motor vehicle. 34 3. It shall be a fraudulent business practice for a new automobile 35 broker business to fail to make a bona fide attempt to obtain a quote or 36 offer from at least three unaffiliated dealers on behalf of a prospec- 37 tive buyer or lessee for a vehicle meeting the prospective buyer or 38 lessee's specifications, including the new motor vehicle dealer located 39 in closest proximity to the address of such prospective buyer or 40 lessee's home or, in the case of any entity, its place of doing busi- 41 ness. 42 4. It shall be a fraudulent business practice for a new automobile 43 broker business to fail to act for the benefit of the prospective buyer 44 or lessee, including by failing to make reasonable efforts to obtain the 45 lowest possible price, down payment, number of payments, amount of 46 payments, finance charges, annual percentage rate and/or fees for a new 47 motor vehicle that meets the specifications of such prospective buyer or 48 lessee. 49 § 11. Section 741-a of the general business law, as amended by chapter 50 477 of the laws of 2017, is amended to read as follows: 51 § 741-a. Advertising. Automobile broker businesses and new automobile 52 broker businesses shall clearly and conspicuously disclose the following 53 in all advertisements in any medium, and in any print advertisement such 54 disclosures shall not appear in any footnotes and shall be situated in 55 the top half of any such advertisement in an easily readable typeface:S. 4364--C 7 1 (a) That the automobile broker business or new automobile broker busi- 2 ness is not a registered new motor vehicle dealer but is a registered 3 automobile broker business or new automobile broker business as defined 4 in section four hundred fifteen of the vehicle and traffic law; 5 (b) The registration number issued to the automobile broker business 6 or new automobile broker business pursuant to section four hundred 7 fifteen of the vehicle and traffic law; 8 (c) Whether any fees may be imposed by the automobile broker business 9 or new automobile broker business for services rendered. Details of such 10 compensation shall be provided by the automobile broker business or new 11 automobile broker business upon request by the consumer; and 12 (d) That no warranty repair services will be provided by the automo- 13 bile broker business or new automobile broker business. 14 § 12. Section 741-b of the general business law, as added by chapter 15 28 of the laws of 2018, is amended to read as follows: 16 § 741-b. [Disclosure] Disclosures. 1. An automobile broker business 17 or new automobile broker business shall provide a disclosure at the time 18 such automobile broker business or new automobile broker business takes 19 an order to search for a leased or purchased vehicle meeting the 20 prospective buyer or lessee's specifications. Such disclosure shall 21 provide the amount of any fees, commissions or other valuable consider- 22 ation the automobile broker business or new automobile broker business 23 expects to receive for any assistance the automobile broker business 24 provides in effecting the lease or purchase transaction, including any 25 reasonably foreseeable fees or charges, including delivery fees. In the 26 case of an automobile broker business this shall include, if known, any 27 payments from a dealer, lessor or any other person or entity for any 28 assistance the automobile broker business provides in effecting the 29 lease or purchase transaction. If the amount of any such fees, commis- 30 sions or other valuable consideration the automobile broker business 31 expects to receive is unknown at the time of the required disclosure, 32 the automobile broker business shall disclose: (a) whether it has a 33 contract with any dealer, lessor or any other person or entity for the 34 provision of assistance in effecting a lease transaction; and (b) wheth- 35 er the automobile broker business may be compensated by the dealer, 36 lessor or any other person or entity for any assistance in effecting 37 such lease transaction. Nothing in this subdivision shall be construed 38 to permit the payment of any fees, commissions or other valuable consid- 39 eration to a new automobile broker business by any dealer. 40 2. A new automobile broker business shall provide an additional 41 disclosure at the time such new automobile broker business takes an 42 order to search for a vehicle meeting the prospective buyer or lessee's 43 specifications. Such additional disclosure shall state that the broker 44 shall make a bona fide attempt to obtain a bid, quote or offer from at 45 least three unaffiliated dealers on behalf of the prospective buyer or 46 lessee for a vehicle meeting the prospective buyer or lessee's specifi- 47 cations, including from the new motor vehicle dealer of such line make 48 located closest to the home or place of business of such prospective 49 buyer and that the new automobile broker has a duty to act for the bene- 50 fit of the prospective buyer or lessee, including by making reasonable 51 efforts to obtain the lowest possible price, down payment, number of 52 payments, amount of payments, finance charges, annual percentage rate 53 and/or fees. 54 3. Each disclosure required by this section shall be acknowledged in 55 writing by each respective prospective buyer or lessee.S. 4364--C 8 1 § 13. Section 742 of the general business law, as added by chapter 616 2 of the laws of 1988, is amended to read as follows: 3 § 742. Action for recovery of damages by consumer. Any consumer 4 injured by a violation of this article or by the breach by an automobile 5 broker business or new automobile broker business of a contract which 6 has been entered into pursuant to section seven hundred thirty-nine of 7 this article may bring an action for recovery of damages. Judgment shall 8 be entered in favor of a consumer in an amount not to exceed three times 9 the actual damages, but in no case less than the amount paid by the 10 buyer to the automobile broker business or new automobile broker busi- 11 ness. The court may award reasonable attorney's fees to a prevailing 12 plaintiff. 13 § 14. Section 743 of the general business law, as amended by chapter 14 372 of the laws of 2016, is amended to read as follows: 15 § 743. Enforcement [by]. 1. By attorney general. In addition to the 16 other remedies provided, whenever there shall be a violation of this 17 article, application may be made by the attorney general in the name of 18 the people of the state of New York to a court or justice having juris- 19 diction by a special proceeding to issue an injunction, and upon notice 20 to the defendant of not less than five days, to enjoin and restrain the 21 continuance of such violations; and if it shall appear to the satisfac- 22 tion of the court or justice that the defendant has, in fact, violated 23 this article, an injunction may be issued by such court or justice, 24 enjoining and restraining any further violation, without requiring proof 25 that any person has, in fact, been injured or damaged thereby. In any 26 such proceeding, the court may make allowances to the attorney general 27 as provided in paragraph six of subdivision (a) of section eighty-three 28 hundred three of the civil practice law and rules, and direct restitu- 29 tion. Whenever the court shall determine that a violation of this arti- 30 cle has occurred, the court shall impose a civil penalty of not less 31 than one thousand dollars and not more than three thousand dollars for 32 each violation. In the case of an automobile broker, not less than one 33 thousand dollars and not more than three thousand dollars for each 34 violation; and in the case of a new automobile broker, not less than 35 four thousand dollars and not more than ten thousand dollars for each 36 violation. In connection with any such proposed application, the attor- 37 ney general is authorized to take proof and make a determination of the 38 relevant facts and to issue subpoenas in accordance with the civil prac- 39 tice law and rules. 40 In connection with any such proposed application, the attorney general 41 is authorized to take proof and make a determination of the relevant 42 facts and to issue subpoenas in accordance with the civil practice law 43 and rules. 44 2. By local authorities. a. Municipalities may, pursuant to local law, 45 act upon the business activity that is the subject of this article, 46 provided that no local government may diminish the protections or 47 requirements of this article or prevent enforcement of its provisions by 48 appropriate state officials. 49 b. The provisions of this article may be enforced in the same manner 50 as set forth in subdivision one of this section by the director of a 51 municipal consumer affairs office or a business integrity commission, or 52 by the town attorney, city corporation counsel, or other lawfully desig- 53 nated enforcement officer of a municipality or local government, and all 54 monies collected thereunder shall be retained by such municipality or 55 local government, provided that no local government may prevent enforce- 56 ment of its provisions by appropriate state officials.S. 4364--C 9 1 3. By private party. Any persons injured by any violation of this 2 article may bring an action in his or her own name against an automobile 3 broker business or a new automobile broker business to enjoin such 4 unlawful act or practice, an action to recover his or her actual damages 5 and statutory damages of four thousand dollars, or both such actions. In 6 the case of a new motor vehicle dealer, injury shall include depriving a 7 new motor vehicle dealer located closest to a lessee or purchaser the 8 opportunity to bid on such lease or purchase as entitled by this arti- 9 cle. Damages shall include the value of incentive payments, bonuses, 10 holdbacks or similar payments that would have been realized had a lessee 11 or purchaser purchased or leased such vehicle from the new motor vehicle 12 dealer in closest proximity to such lessee or purchaser but for the 13 actions of a person who knowingly aided the violation of the provisions 14 of this article. Nothing in this section shall require a franchisor, 15 manufacturer, or distributor to grant a new motor vehicle dealer a bene- 16 fit under an incentive, bonus, holdback or similar payment that the new 17 motor vehicle dealer did not earn or for which the new motor dealer did 18 not complete or qualify. In any such judicial action or proceeding, the 19 court may award reasonable attorney's fees and costs. Such actions may 20 be brought regardless of whether or not the underlying violation is 21 consumer-oriented or has a public impact. The court may, in its 22 discretion, increase the award of damages if the court finds the defend- 23 ant willfully or knowingly violated this section. The court shall award 24 reasonable attorney's fees and costs to a prevailing plaintiff. 25 § 15. Section 415 of the vehicle and traffic law is amended by adding 26 two new subdivisions 21 and 22 to read as follows: 27 21. Penalties and rights of action for failure to obtain a certificate 28 of registration as a new automobile broker pursuant to subdivision 29 three-a and paragraph b-3 of subdivision five of this section. a. The 30 commissioner, or any person designated by him or her, may proceed 31 against a party who has operated as a new automobile broker without 32 certificate of registration in accordance with the provisions of this 33 article, in any one or more proceedings and by order require the offend- 34 ing party to pay the people of this state a penalty in a sum not to 35 exceed two thousand dollars for each violation found to have been 36 committed. Civil penalties assessed under this subdivision shall be paid 37 to the commissioner for deposit into the state treasury, and unpaid 38 civil penalties may be recovered by the commissioner in a civil action 39 in the name of the commissioner. For the purposes of this subdivision, a 40 "violation" shall mean each vehicle sold or leased to a consumer for 41 which the party that failed to obtain certification as a new automobile 42 broker has served as a new automobile broker. 43 b. In addition to any civil action brought by the commissioner or any 44 person appointed by him, any persons injured by any violation of subdi- 45 vision three-a and paragraph b-3 of subdivision five of this section, 46 shall be entitled to sue for and have injunctive relief and damages 47 against, any party in violation of subdivision three-a and paragraph b-3 48 of subdivision five of this section in any court of the state having 49 jurisdiction over the parties. In the case of a new motor vehicle deal- 50 er, injury shall include depriving the new motor vehicle dealer located 51 closest to a lessee or purchaser the opportunity to bid on such lease or 52 purchase as entitled by this article. Damages shall include the value of 53 incentive payments, bonuses, holdbacks or similar payments that would 54 have been realized had a lessee or purchaser purchased or leased such 55 vehicle from the new motor vehicle dealer in closest proximity to such 56 lessee or purchaser but for the actions of a person who knowingly aidedS. 4364--C 10 1 the violation of the provisions of this article. Nothing in this subdi- 2 vision shall require a franchisor, manufacturer, or distributor to grant 3 a new motor vehicle dealer a benefit under an incentive, bonus, holdback 4 or similar payment that the new motor vehicle dealer did not earn or for 5 which the new motor dealer did not complete or qualify. In any such 6 judicial action or proceeding, the court may award reasonable attorney's 7 fees and costs. Such actions may be brought regardless of whether or 8 not the underlying violation is consumer-oriented or has a public 9 impact. The court may, in its discretion, increase the award of damages 10 if the court finds the defendant willfully or knowingly violated this 11 section. The court shall award reasonable attorney's fees and costs to a 12 prevailing plaintiff. 13 22. New automobile broker record requirements. a. New automobile 14 brokers shall maintain a permanently bound book in which shall be 15 recorded the make, model, year color and vehicle identification number 16 of all previously unregistered automobiles for which such broker has 17 provided a service of purchasing, arranging, assisting, facilitating or 18 effecting the purchase or lease of such automobile within any preceding 19 six-year period. Such book shall also have recorded a record of the 20 name and address of the purchaser or lessor of such automobile, the date 21 of sale or commencement of lease of such automobile and the name and 22 address of the dealer from which the automobile was purchased or leased. 23 b. New automobile brokers shall maintain a permanently bound book in 24 which shall be recorded all completed orders to search for a previously 25 unregistered automobile. Such book shall also have recorded a record of 26 the date of such order, the name and address of the person or entity 27 ordering such search, the automobile specifications provided by such 28 prospective buyer or lessee and the name and address of the dealers 29 solicited for a quote or offer on behalf of such prospective buyer or 30 lessee. 31 c. Such books shall be open for inspection by the commissioner, or his 32 or her agent, during reasonable business hours. The commissioner may 33 establish by rule the form of any such book. 34 d. As an alternative to a bound book, a new automobile broker may use 35 a computer and software approved by the department to maintain the 36 records required to be kept by this section, provided all information 37 required by paragraphs a and b of this section are recorded and the 38 records conform to such additional requirements as determined by the 39 commissioner. 40 § 16. Section 465 of the vehicle and traffic law is amended by adding 41 a new subdivision 8 to read as follows: 42 8. A franchisor may require a franchisee to submit to a franchisor the 43 name and registration number of any new automobile broker business that 44 arranged, assisted, facilitated or effected the purchase or lease of any 45 vehicle from such dealer. A franchisor may charge back the franchisee 46 any sales, advertising or marketing incentive payment or any other 47 payment or benefit associated with the sale or lease of such vehicle for 48 failure to submit such information. 49 § 17. The general business law is amended by adding a new section 50 737-a to read as follows: 51 § 737-a. Bona fide bid soliciting required. 1. In providing a service 52 of purchasing, arranging, assisting, facilitating or effecting the 53 purchase or lease of a previously unregistered automobile, a new automo- 54 bile broker business shall solicit bids from at least three unaffiliated 55 new motor vehicle dealers on behalf of a prospective buyer or lessee for 56 a new motor vehicle meeting the specifications of such prospective buyerS. 4364--C 11 1 or lessee, including the new motor vehicle dealer located in closest 2 proximity to the home address of such prospective buyer or lessee or, in 3 the case of an entity, its place of doing business. 4 2. The commissioner of motor vehicles may adopt rules and regulations 5 necessary to effectuate the provisions of this section. 6 § 18. Severability. If any provision of this act, or any application 7 of any provision of this act, is held to be invalid, that shall not 8 affect the validity or effectiveness of any other provision of this act, 9 or of any other application of any provision of this act, which can be 10 given effect without that provision or application; and to that end, the 11 provisions and applications of this act are severable. 12 § 19. This act shall take effect immediately; provided that all auto- 13 mobile brokers registered on the effective date of this act shall have 14 ninety days to come into compliance with the provisions of this act.