2023 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hereunder which was revoked or suspended by the commissioner;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was revoked or suspended by the commissioner;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;
(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
(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.
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.