NY Veh & Traf L § 398-E (2021)
2021 New York Laws VAT - Vehicle and Traffic Title 3 - Safety Responsibility; Financial Security; Equipment; Inspection; Size and Weight; and Other Provisions Article 12-A - Motor Vehicle Repair Shop Registration Act 398-E - Suspension, Revocation or Refusal to Issue Registration; Civil Penalty; Restitution; Surrender of Certificate of Registration.

§ 398-e. Suspension,  revocation  or  refusal  to  issue registration; civil penalty; restitution; surrender of certificate of registration. 1. Suspension, revocation or refusal to issue registration or license.  The commissioner,  or  any person deputized by him, may deny the application of any person for a certificate of registration or  estimator's  license and  may  suspend or revoke the registration of any motor vehicle repair shop or any estimator's license  issued  pursuant  to  this  article  or refuse  to issue a renewal thereof if he determines that such applicant, registrant or licensee:  (a) has made a material false statement or concealed a  material  fact in connection with his application;  (b)  was  the  former  holder  of a certificate of registration issued hereunder which was revoked or suspended by the commissioner;  (c) was, or that any officer, director, partner or stockholder holding more than ten percent of the outstanding stock was an officer, director, partner or stockholder holding more than ten percent of the  outstanding stock in a corporation or partnership, as the case may be, which was the former  holder  of  a certificate of registration issued hereunder which was revoked or suspended by the commissioner;  (d) has failed to furnish satisfactory  evidence  of  good  character, reputation and fitness;  (e) does not have a place of business as required by this article;  (f)  is not the true owner of the repair shop, except in the case of a franchise;  (g) has been guilty of fraud or fraudulent or deceptive practices;  (h) has been grossly negligent on  two  or  more  occasions  within  a period  of  two  years  in  the  performance of any repair or adjustment covered by this article, or has  grossly  overcharged  on  two  or  more occasions within a period of two years for such repair or adjustment;  (i)  has  wilfully failed to comply with any of the provisions of this article or the rules and regulations  of  the  commissioner  promulgated hereunder;   * (j) has knowingly issued a false or misleading estimate; or   * NB Effective until April 1, 2022   * (j) has knowingly issued a false or misleading estimate;   * NB Effective April 1, 2022   * (k) has engaged in a course of conduct which unreasonably impedes or delays  a consumer's right to a fair recovery pursuant to the provisions of an automobile insurance policy,  the  insurance  law  or  regulations issued  by  the  superintendent  of  financial  services  governing  the evaluation and adjustments of claims.   * NB Effective until April 1, 2022   * (k) has engaged in a course of conduct which unreasonably impedes or delays a consumer's right to a fair recovery pursuant to the  provisions of  an  automobile  insurance  policy,  the insurance law or regulations issued  by  the  superintendent  of  financial  services  governing  the evaluation and adjustments of claims; or   * NB Effective April 1, 2022   * (l)  has  wilfully violated paragraph (b) of subdivision thirty-one, subdivision thirty-one-a or subdivision thirty-one-b  of  section  three hundred seventy-five of this chapter.   * NB Effective April 1, 2022   For  the  purposes  of  paragraphs  (g), (h), (i), (j) and (k) of this subdivision, it shall be presumed that the actions of any employee of  a motor vehicle repair shop shall be attributable to, and deemed to be the actions of, such motor vehicle repair shop.   2. Civil penalty; suspension for failure to pay. (a) The commissioner, or  any  person deputized by him, may, by order, require a registrant or  an unregistered repair shop to pay to the people of this state a penalty as hereinafter provided. Such penalty may be imposed in addition  to  or in  lieu  of revoking or suspending the certificate of registration of a registrant  in accordance with the provisions of this article, or such a penalty  may  be  imposed  upon  a  finding  that  a  registrant  or  an unregistered  repair  shop:  (i)  has  been  grossly  negligent  in  the performance of any repair or adjustment covered by this article; or (ii) has grossly overcharged for such repair or adjustment.  (b) Such penalty for a first violation shall be in a sum not exceeding seven hundred fifty dollars  for  each  violation  found  to  have  been committed,  and  for a second or subsequent violation not arising out of the same incident both of which were committed within a period of thirty months, be in a sum of not more  than  one  thousand  dollars  for  each violation  found  to have been committed; provided, however, the penalty for each and any violation of paragraph (g) of subdivision one  of  this section found to have been committed shall be no less than three hundred and  fifty dollars and no more than one thousand dollars, except that if a finding of financial loss has been made pursuant to subdivision  three of  this  section,  the  amount  of such penalty may be increased by the amount of financial loss so found.  (c) Upon the failure of a registrant or an unregistered repair shop to pay such penalty, or, where the order so permits, to make restitution as provided in subdivision three of this section, within thirty days  after the mailing of such order, postage prepaid, registered or certified, and addressed  to  the  last  known  place of business of such registrant or unregistered repair shop, unless such order is  stayed  as  provided  in subdivision  three  of  section  three  hundred  ninety-eight-f  of this chapter, the commissioner may revoke the certificate of registration  of such  registrant  or  may  suspend  the  same  for such period as he may determine or may seek to recover  unpaid  civil  penalties  in  a  civil action  in  the name of the commissioner. Civil penalties assessed under this subdivision shall be paid to the commissioner for deposit into  the state treasury.  (d)  In  addition, as an alternative to such civil action and provided that no proceeding for judicial review shall then  be  pending  and  the time   for  initiation  of  such  proceeding  shall  have  expired,  the commissioner may file with the county clerk of the county in  which  the registrant  is  located a final order of the commissioner containing the amount of the penalty assessed. The filing of  such  final  order  shall have the full force and effect of a judgment duly docketed in the office of  such  clerk and may be enforced in the same manner and with the same effect as that provided by law in respect to executions  issued  against property upon judgments of a court of record.   3. Restitution; assessment. (a) Upon a determination that a registrant or  an  unregistered  repair  shop  has done or failed to do any act for which suspension of the registrant's registration  or  a  civil  penalty against the registrant or unregistered repair shop could be imposed, the person making such determination may make a finding of financial loss to any  complainant  or  complainants  resulting  from  the  actions of the registrant or unregistered repair shop. The person making  such  finding may  provide  that  if  the registrant or unregistered repair shop makes restitution to the complainant or complainants for the amount or amounts so found, that payment of such restitution may be substituted in lieu of any suspension or civil penalty, or a specified portion thereof  imposed upon  the  registrant or unregistered repair shop. However, a finding of financial loss shall only be made  if  the  complainant  (i)  agrees  to accept the amount so found, if offered by the registrant or unregistered repair  shop, and (ii) is not a party to any litigation which is pending  or which has gone to judgment in relation to  the  same  matter  in  any civil court.  (b)  The  amount  of financial loss which may be found and proposed as restitution shall be limited  to  an  amount  necessary  to  repair  the vehicle  or  vehicles  in question and/or any amount of overcharge which may be found. Neither punitive nor incidental damages may be included in the finding of financial loss.  (c) If payment of restitution to the complainant is authorized in lieu of all or a portion of a suspension or civil penalty, in order  for  the registrant  or  unregistered  repair shop to exercise the option to make such payment, such payment must be made by means of a certified check or money order payable to the complainant or complainants delivered  to  an office  of  the  department as directed by the commissioner or his agent within thirty days of the date of  notice  of  suspension  and/or  civil penalty.  Upon  receipt  of  such  certified  check  or money order, the department shall forward the same to the complainant or complainants. In the event that the registrant or unregistered repair shop should fail to make payment for restitution within such thirty days, but,  at  a  later time,  pays  such  civil  penalty, the department shall deduct from such civil penalty payment the amount assessed  for  restitution,  and  shall mail a check for such amount to the complainant or complainants.  (d)  If  payment  of restitution may be substituted in lieu of a civil penalty  or  portion  of  a  civil  penalty,  and  the   registrant   or unregistered  repair  shop  does  not  exercise  the option to make such payment, the civil penalty becomes due as provided in subdivision two of this  section  and  the  provisions  of  that  subdivision  relating  to suspension of registration and recovery of civil penalties shall apply.  (e)  Any  payment  made in compliance with such a finding of financial loss shall not preclude any civil action which may  be  brought  by  the complainant,  registrant  or  unregistered  repair  shop,  and  any such finding may be considered but shall not be binding upon any court before which any such action is brought.   4. Surrender of certificate of registration. Upon  the  suspension  or revocation  of a certificate of registration by the commissioner and the issuance of notice thereof, the registrant shall immediately deliver the certificate of registration to the commissioner or to any peace officer, acting pursuant to his special duties, or police officer directed by the commissioner to secure possession thereof, or agent of the commissioner, displaying authorization to act in such capacity along with a  certified copy  of  the  order  revoking  or suspending such registration, and the failure  to  so  deliver  the  certificate  within  thirty  days   shall constitute  a  traffic  infraction and shall be punishable in the manner provided in section eighteen hundred of this chapter.