Assembly Bill A4955

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4955

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            February 10, 2009
                               ___________

Introduced by M. of A. V. LOPEZ -- read once and referred to the Commit-
  tee on Judiciary

AN ACT to amend the general business law, in relation to a private right
  of  action  for  any  violation of section 352-e of such law involving
  real estate securities

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  352-e  of the general business law is amended by
adding a new subdivision 10 to read as follows:
  10. (A) ANY PURCHASER OR SELLER OF ANY REAL ESTATE SECURITY AS DEFINED
IN THIS SECTION MAY BRING AN ACTION OR PROCEEDING FOR DAMAGES OR  RESTI-
TUTION,  OR  BOTH, AND SUCH OTHER RELIEF AS THE COURT MAY DEEM APPROPRI-
ATE, FOR ANY VIOLATION OF THIS ARTICLE, SUBJECT TO THE REQUIREMENTS  SET
FORTH IN THIS SUBDIVISION.
  (B)  PRIOR TO THE COMMENCEMENT OF SUCH ACTION, THE PURCHASER OR SELLER
OF THE SECURITY OR THE  ATTORNEY  FOR  SUCH  PURCHASER  OR  SELLER  MUST
FORWARD  A  COPY  OF  THE  PROPOSED  COMPLAINT  TO THE ATTORNEY GENERAL,
TOGETHER WITH A REQUEST FOR THE CERTIFICATION OF SUCH  COMPLAINT.    THE
ATTORNEY  GENERAL  MAY REQUIRE THE PLAINTIFF OR THE PLAINTIFF'S ATTORNEY
TO PROVIDE SUCH FACTUAL INFORMATION AS THE ATTORNEY GENERAL MAY REQUIRE.
  (C) THE ATTORNEY GENERAL SHALL REVIEW THE COMPLAINT, AND MAY ISSUE  AN
ORDER PROHIBITING THE COMMENCEMENT OF THE ACTION IF THE ATTORNEY GENERAL
DETERMINES  THAT  THE  COMPLAINT  LACKS  A  SUBSTANTIAL FACTUAL OR LEGAL
BASIS.  IF IT IS DETERMINED THAT SUCH A SUBSTANTIAL  BASIS  EXISTS,  THE
ATTORNEY  GENERAL  SHALL ISSUE A CERTIFICATION AUTHORIZING THE COMMENCE-
MENT OF THE ACTION.
  (D) UNDER NO CIRCUMSTANCES MAY  AN  ACTION  BE  COMMENCED  UNDER  THIS
SUBDIVISION  UNLESS THE ATTORNEY GENERAL HAS ISSUED THE REQUIRED CERTIF-
ICATION OR THE ATTORNEY GENERAL HAS NOT ACTED WITHIN THE LATER OF:   (I)
SIXTY DAYS FOLLOWING THE SUBMISSION OF THE COMPLAINT OR (II) THIRTY DAYS

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08407-01-9

              

A. 4955                             2

FOLLOWING  THE  RECEIPT  OF THE PLAINTIFF'S RESPONSE TO A REQUEST BY THE
ATTORNEY GENERAL FOR ADDITIONAL FACTUAL INFORMATION.
  (E)  AN ACTION BROUGHT BY A PURCHASER OR SELLER OF A REAL ESTATE SECU-
RITY PURSUANT TO THIS SUBDIVISION SHALL BE COMMENCED WITHIN SIX YEARS OF
THE DATE THE ACTS OR OMISSIONS COMPLAINED OF WERE COMMITTED,  OR  WITHIN
TWO YEARS OF THE DISCOVERY OF THE FRAUD, WHICHEVER OCCURS LATER.
  (F)  THE FILING OF A REQUEST FOR CERTIFICATION SHALL BE DEEMED TO TOLL
AN OTHERWISE UNEXPIRED STATUTE OF LIMITATIONS FOR THE COMMENCEMENT OF AN
ACTION BROUGHT UNDER THIS ARTICLE FOR A PERIOD  OF  ONE  HUNDRED  TWENTY
DAYS FROM THE DATE THAT SUCH REQUEST FOR CERTIFICATION IS FILED WITH THE
ATTORNEY GENERAL.
  (G)  IF  THE  ATTORNEY  GENERAL SO REQUESTS, THE PARTIES TO ANY ACTION
COMMENCED PURSUANT TO THIS SUBDIVISION SHALL SERVE THE ATTORNEY  GENERAL
WITH  COPIES  OF  ALL  PAPERS FILED IN THE ACTION AND WITH COPIES OF ALL
DEPOSITION TRANSCRIPTS AND  DOCUMENTS  PRODUCED  IN  DISCOVERY,  AT  THE
EXPENSE OF THE STATE.
  (H) IN ANY SUCH ACTION OR PROCEEDING BROUGHT PURSUANT TO THIS SUBDIVI-
SION,  THE  COURT  MAY AWARD A PREVAILING PLAINTIFF REASONABLE COSTS AND
ATTORNEY'S FEES FOR ANY CLAIM ARISING UNDER THIS ARTICLE.
  (I) NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE CONSTRUED TO AFFECT
OR LIMIT THE ABILITY  OF  THE  ATTORNEY  GENERAL  TO  INTERVENE  IN  ANY
PROCEEDING  COMMENCED  PURSUANT  TO  THIS  SUBDIVISION, OR TO COMMENCE A
SEPARATE ACTION  BASED  UPON  THE  SAME  FACTS  AND  CIRCUMSTANCES  THAT
RESULTED  IN  THE  ACTION  COMMENCED PURSUANT TO THIS SUBDIVISION, OR TO
PURSUE ANY OTHER REMEDY AVAILABLE TO THE STATE.
  (J) NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE CONSTRUED TO AFFECT
THE VALIDITY OF ANY PROVISION OF A WRITTEN AGREEMENT, OTHERWISE ENFORCE-
ABLE, TO ARBITRATE ANY DISPUTE OR CLAIM, INCLUDING ANY  CLAIM  THAT  MAY
ARISE  UNDER  THIS  ARTICLE,  OR TO ABRIDGE ANY OTHER REMEDY THAT MAY BE
AVAILABLE PURSUANT TO LAW.
  S 2. This act shall take effect immediately.