NY Gen Bus L § 23 (2021)
2021 New York Laws GBS - General Business Article 3 - Auctions and Auctioneers 23 - Automobile Auctioneer.

§  23.  Automobile  auctioneer.  1.  Definitions. The term "automobile auctioneer" as used in this section means any person, not claiming title in himself, who sells or offers for retail sale  more  than  five  motor vehicles,  motorcycles or trailers in any calendar year, or who displays or permits the display of three or more motor vehicles,  motorcycles  or trailers  for  retail sale in any one calendar month upon premises owned or controlled by him.   2. Title. An automobile auctioneer shall  not  sell  a  motor  vehicle unless he has in his possession the currently valid certificate of title to  that  motor  vehicle, or, if a certificate of title is not required, then he shall have in his possession the appropriate proof of  ownership for  such  motor vehicle. Title or proof of ownership shall be delivered to the purchaser immediately upon acceptance of tender of payment.   2-a. Sale of vehicles. a. An automobile auctioneer shall not  sell  or offer  for  sale  a  motor  vehicle  unless  such auctioneer is a dealer registered pursuant to article sixteen of the vehicle and traffic law.   b. Except as otherwise permitted  by  law,  an  automobile  auctioneer shall  not sell or offer for sale a motor vehicle on a sale basis of "as is" or "with all faults", or by using words  of  similar  import  at  or prior to the time of sale.   3.  Disclosure.  a.  No  motor  vehicle shall be sold by an automobile auctioneer unless he has disclosed the identity of  the  seller  who  is actually  transferring  title  or proof of ownership. Such disclosure of the seller's identity shall be made by the auctioneer (i) in  a  written disclosure  made in not less than ten-point bold face type and appearing on the front of the sales contract, receipt, invoice, or other  document used in connection with the sale of the vehicle that shall set forth the seller's  true  legal  name, complete street address and dealer facility identification number and that shall be captioned "Identity of Vehicle's Seller"; and (ii) by affixing a conspicuous sign to  the  windshield  of each  vehicle  offered  for  sale, sold or made available for inspection prior to auction that shall  disclose  the  seller's  true  legal  name, complete street address and dealer facility identification number.   b.  No  used  motor  vehicle  subject to the provisions of section one hundred ninety-eight-b of this chapter shall be sold or offered for sale by an automobile auctioneer unless such auctioneer  discloses  the  Used Car  Lemon Law Bill of Rights. Such disclosure shall be made in writing, in not less than ten-point bold face type and appearing on the front  of the  sales  contract,  receipt,  invoice,  or  other  document  used  in connection with the sale of the vehicle, and shall  be  captioned  "Used Car Lemon Law Bill of Rights".   c.  No  motor vehicle subject to the provisions of section one hundred ninety-eight-a of this chapter shall be sold or offered for sale  by  an automobile auctioneer unless such auctioneer discloses the New Car Lemon Law  Bill  of  Rights.  Such disclosure shall be made in writing, in not less than ten-point bold face type and appearing on  the  front  of  the sales  contract,  receipt, invoice, or other document used in connection with the sale of the vehicle, and shall be captioned "New Car Lemon  Law Bill of Rights".   d.  No  used  motor  vehicle  shall  be sold or offered for sale by an automobile auctioneer unless  such  auctioneer  provides  the  following notice,  in  writing,  in  not  less  than  ten-point bold face type and appearing on the front of the sales contract, receipt, invoice or  other document used in connection with the sale of the vehicle:                 CERTIFICATION NOTICE FOR USED CAR BUYERS         1.  NEW  YORK  STATE  LAW  REQUIRES A USED CAR DEALER TO         CERTIFY IN WRITING TO THE BUYER THAT THE VEHICLE, AT THE         TIME OF DELIVERY, IS IN CONDITION AND REPAIR TO  RENDER,          UNDER  NORMAL  USE,  SATISFACTORY  AND  ADEQUATE SERVICE      VEHICLE AND TRAFFIC LAW SECTION 417-a).         2.  IF  THE  DEALER  REFUSES  TO  HONOR  ITS LEGAL DUTY,         COMPLAIN TO THE N.Y.S.   DEPARTMENT OF  MOTOR  VEHICLES,         DIVISION OF VEHICLE SAFETY SERVICES, EMPIRE STATE PLAZA,         ALBANY, N.Y. 12228.   e.  No  used  motor  vehicle  shall  be sold or offered for sale by an automobile auctioneer, unless such auctioneer posts a  conspicuous  sign at  each  entrance  to the auction used by the public, and in a place so situated as to be clearly visible to bidders at the auction.  Such  sign shall read as follows:                 CERTIFICATION NOTICE FOR USED CAR BUYERS         1.  NEW  YORK  STATE  LAW  REQUIRES A USED CAR DEALER TO         CERTIFY IN WRITING TO THE BUYER THAT THE VEHICLE, AT THE         TIME OF DELIVERY, IS IN CONDITION AND REPAIR TO  RENDER,         UNDER NORMAL USE, SATISFACTORY AND ADEQUATE SERVICE.         2.  IF  THE  DEALER  REFUSES  TO  HONOR  ITS LEGAL DUTY,         COMPLAIN TO THE N.Y.S.   DEPARTMENT OF  MOTOR  VEHICLES,         DIVISION OF VEHICLE SAFETY SERVICES, EMPIRE STATE PLAZA,         ALBANY, N.Y. 12228.   4.  Warranties.  a.  Notwithstanding  any  provision  of  law  to  the contrary, in any contract of sale by  an  automobile  auctioneer,  there shall be a warranty that:  (1)  the  title  or proof of ownership conveyed shall be good, and its transfer rightful; and  (2) the goods shall be delivered free from any  security  interest  or other  lien or encumbrance of which the buyer at the time of contracting has no knowledge.   b. Any waiver of the warranty provided for  in  paragraph  a  of  this subdivision  by  a  buyer  shall be deemed contrary to public policy and shall be void and unenforceable. Any attempt by an automobile auctioneer to exclude or modify such warranties shall  constitute  a  violation  of this section.   5.  Documentation of transactions. In addition to the records required to be kept by  auctioneers  pursuant  to  section  twenty-five  of  this article,  every sale by an automobile auctioneer shall be accompanied by an itemized receipt which shall contain the following information:   a. legal  name,  and  trade  name  if  different,  of  the  automobile auctioneer;   b. address and telephone number of the automobile auctioneer;   c. name of the buyer;   d.  make, year of manufacture, and identification number of said motor vehicle;   e. the amount of money paid; and   f. the date of delivery.   6. Certificate of prior use. a. Upon  the  sale  or  transfer  of  any passenger motor vehicle to an automobile auctioneer any transferer shall execute  and  deliver  to  the auctioneer an instrument in writing which shall set forth in nature of the principal prior  use  of  such  vehicle when the automobile transferer knows or has reason to know that such use was  as  a  taxicab, rental vehicle, police vehicle, or driver education vehicle, or vehicle  which  has  been  repurchased  pursuant  to  either section one hundred ninety-eight-a or one hundred ninety-eight-b of this chapter,  a  similar  statute  of  another  state,  or an arbitration or alternative dispute procedure.   b. Upon the sale of  any  second-hand  passenger  motor  vehicle,  the automobile  auctioneer  shall  execute  and  deliver  to  the  buyer  an instrument in writing which shall set forth the nature of the  principal  prior  use  of  such vehicle when the automobile auctioneer knows or has reason to know that such use was as a taxicab,  rental  vehicle,  police vehicle,  or  driver  education  vehicle,  or  vehicle  which  has  been repurchased pursuant to either section one hundred ninety-eight-a or one hundred  ninety-eight-b  of  this  chapter, a similar statute of another state, or an arbitration or alternative dispute procedure.   7. Fraudulent representation. No automobile auctioneer,  sales  person employed  by such auctioneer, or agent or representative thereof selling or offering for sale any motor vehicle,  motorcycle,  or  trailer  shall make  or  use  any  untrue  or  misleading  representations  nor engage, directly or indirectly, in any act or practice  or  course  of  business which operates or would operate as a fraud or deception upon any person.   8.  Exceptions.  The  provisions of this section shall not apply to an auction or auctions at which only vehicles which are being sold pursuant to repossession, or foreclosure of a lien, or by  or  on  behalf  of  an executor  or  administrator  to settle an estate, or pursuant to a court order, or an auction conducted by the federal government, or the  state, its  agencies,  bureaus,  boards,  commissions  and  authorities, or any political subdivision of the state, or the agencies and  authorities  of any  such  subdivision,  or  an auction at which only vehicles which are being sold are owned by a regulated public  utility  or  other  business which  maintains  a  fleet  of  twenty-five or more vehicles used in the ordinary course of business and not purchased for the purpose of resale, or at an auction conducted upon a farm in which the only vehicles  being sold,  excluding  farm equipment, are vehicles formerly utilized for day to day farm business or personal use and such  vehicles  are  not  being sold  for  the  purpose  of  resale,  or at an auction at which bids are accepted only from registered motor vehicle dealers, registered  vehicle dismantlers  or  certified  scrap  processors.  Vehicles sold at such an auction shall not be included in determining the number of vehicles sold at auction for the  purpose  of  determining  whether  a  person  is  an auctioneer.   9.  Action  by  the  attorney  general.  a. Upon any violation of this section, an application may be made by the attorney general in the  name of  the  people  of  the  state of New York to a court or justice having jurisdiction to issue an injunction, and upon notice to the defendant of not less than five days, to enjoin and restrain the continuance  of  the violation.  If  it  shall  appear  to  the  satisfaction of the court or justice that the defendant has violated this section, an injunction  may be issued by the court or justice, enjoining and restraining any further violation,  without  requiring  proof that any person has, in fact, been injured or damaged thereby. In any such proceeding, the court  may  make allowances  to  the  attorney  general  as  provided in paragraph six of subdivision (a) of section  eighty-three  hundred  three  of  the  civil practice law and rules, and direct restitution.   b. Whenever the court shall determine that a violation of this section has  occurred,  it  may  impose  a  civil  penalty  of not more than one thousand dollars for each violation. In connection with  an  application made  under this subdivision, the attorney general is authorized to take proof and to make a determination of the relevant  facts  and  to  issue subpoenas in accordance with the civil practice law and rules.   10. Additional remedies. In addition to the right of action granted to the  attorney  general pursuant to subdivision nine of this section, any buyer injured by a violation of this section may bring an action in  his own  name  to  enjoin  such  unlawful practice, an action to recover his actual damages or five hundred dollars, whichever is  greater,  or  both such  actions.  The  court  in  its discretion may increase the award of damages to an amount not to exceed three times the actual  damages.  The  court  may  award  costs  and reasonable attorney's fees to a prevailing plaintiff.   11.  Burden  of  proof.  In any proceeding involving this section, the burden of proving an exception or inapplicability for the definition  of automobile auctioneer is upon the person claiming it.   12.  Severability  clause.  If any provision of this section or if any application thereof to any person or circumstance is held  invalid,  the remainder  of  the section and the application of the provision to other persons and circumstances shall not be affected thereby.