NY State Senate Bill 2011-S2957

Archive: Last Bill Status - In Senate Committee Codes Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
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Delivered to Governor
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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 03, 2011	referred to codes

2011-S2957 (ACTIVE) - Details

Current Committee:: Senate Codes
Law Section:: Civil Practice Law and Rules
Laws Affected:: Amd §8303, CPLR; amd §392-e, Gen Bus L
Versions Introduced in 2009-2010 Legislative Session:: S917

2011-S2957 (ACTIVE) - Summary

Increases the penalty for using false statements with respect to, or altering mileage registering devices on, an automobile.

2011-S2957 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S2957

TITLE OF BILL:
An act
to amend the civil practice law and rules and the general business
law, in relation to tampering with odometers of motor vehicles

SUMMARY:
Section 392-e of the General Business Law
would be amended to
provide that any person, firm, partnership or corporation who, with
intent to defraud, either gives a false statement to a transferee or
executes and delivers a false written statement required in such
transfer, shall be guilty of a class A misdemeanor for a first
offense involving only one automobile or shall be guilty of a class E
felony for any subsequent offense or for an offense involving more
than one vehicle. A new subdivision three is added to such law to
provide the same penalties for a person who, with intent to defraud,
actually disconnects or changes an odometer to indicate a lesser
mileage thereon. Old subdivisions 3 and 4 are renumbered 4 and 5
respectively. A new subdivision 6 is added to such law which would
give rise to a private right of action for actual damages or $500,
whichever is greater. In cases of intentional misrepresentation,
fraud or deceit, treble damages or $1,500 would be awarded to a
prevailing plaintiff. The court in its discretion, may award costs
and reasonable attorney's fees to a prevailing plaintiff.

Additionally, the attorney general would be authorized to pursue an
action or proceeding on behalf of the people of the State
of New York to seek restitution, damages, penalties and costs.

JUSTIFICATION:
The seriousness of odometer tampering is far too often
overlooked. A properly maintained odometer provides a consumer with
the best indicia of the remaining useful life of an automobile and
the impending or existing need to service or replace various
equipment and systems in the vehicle. Odometer tampering threatens
consumer's economic well-being as well as their physical well-being.
Based upon available data, it has been determined that for every
10,000 miles that a vehicle's odometer is altered, there is a $300 to
$500 increase in the retail value of the vehicle, depending on the
model. The average rollback is rarely less than 20,000 miles and
averages approximately 40,000 miles, which means that the average
profit as a result of a rollback is approximately $1,200 to $2,000
per vehicle. It is estimated that 102,000 to 142,000 vehicle
odometers are rolled back each year in New York State alone with an
economic loss to New York State consumers of $127.5 to $177.5 million
dollars per year. Although the attorney general is presently
authorized to proceed against any person engaged in repeated
fraudulent or illegal acts under Section 63(12) of the executive law,
this bill would explicitly specify such authority in odometer
tampering cases and close a legal loophole. Since present law in

New York addresses transferors only, individual officers or directors
of a corporation are not personally liable for violations. Thus, if a
corporation
that has violated the law becomes insolvent or bankrupt, the
individuals involved in the direction and operation of the company
are immune from liability. By making odometer tampering a criminal
offense, the directors or officers would be personally liable for
violations if they knew or had reason to know of such violations and
could not hide behind the corporate veil. Additionally, by providing
for a private right of action and damages or minimal awards, the
violator will be required to make the aggrieved party whole
regardless of whether it can be proved that the defendant actually
intended to defraud anyone. In other words, an individual,
partnership, firm or corporation would be civilly liable for odometer
tampering by proof of the tampering alone.
It is time that this crime was recognized for the serious theft and
fraud that it is.

FISCAL IMPLICATION:
None.

EFFECTIVE DATE:
This act shall take effect on the
first of January
next succeeding the date on which it shall have become a law.

2011-S2957 (ACTIVE) - Bill Text download pdf

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

                                  2957

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 3, 2011
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Codes

AN ACT to amend the civil practice law and rules and the  general  busi-
  ness law, in relation to tampering with odometers of motor vehicles

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

  Section 1. Paragraph 6 of subdivision (a) of section 8303 of the civil
practice law and rules, as amended by chapter 530 of the laws  of  2002,
is amended to read as follows:
  6.  to the plaintiffs in an action or proceeding brought by the attor-
ney-general under [articles] ARTICLE twenty-two,  twenty-two-A,  twenty-
three-A  or  thirty-three  or  section three hundred ninety-one-b, THREE
HUNDRED NINETY-TWO-E or five hundred twenty-a of  the  general  business
law, or under subdivision twelve of section sixty-three of the executive
law, or under article twenty-three of the arts and cultural affairs law,
or  in  an  action  or  proceeding brought by the attorney-general under
applicable statutes to dissolve  a  corporation  or  for  usurpation  of
public  office, or unlawful exercise of franchise or of corporate right,
a sum not exceeding two thousand dollars against each defendant.
  S 2. Section 392-e of the general business law, as  added  by  chapter
958  of  the laws of 1969 and subdivision 2-a as added by chapter 404 of
the laws of 2001, is amended to read as follows:
  S 392-e.  Using  false  statements  or  altering  mileage  registering
devices. 1. Upon the transfer of ownership of a motor vehicle, the sell-
er  shall  enter  on  any instrument executed by him, including any form
prescribed by the commissioner of motor vehicles, and on any other  bill
of  sale, certificate, or evidence of title or condition given by him at
the time of transfer or sale, the mileage said motor vehicle purports to
have been operated as the same appears upon the odometer in  such  motor
vehicle.  In the event that such odometer mileage is known to the seller
to be less than such motor vehicle has actually  travelled,  the  seller

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD07136-01-1

S. 2957                             2

shall enter upon any said transfer instrument or statement "True mileage
unknown."  In  the event that it is known to the seller that the mileage
indicated on such odometer is beyond its designed mechanical limits,  he
shall  state  the  total  cumulative mileage on the aforesaid prescribed
transfer instruments. Any person, firm, partnership, or corporation who,
WITH INTENT TO DEFRAUD, gives a false statement to  a  transferee  under
the  provisions  of this section, shall be guilty of a CLASS A misdemea-
nor, FOR A FIRST OFFENSE INVOLVING ONLY ONE MOTOR VEHICLE  OR  SHALL  BE
GUILTY  OF  A CLASS E FELONY FOR ANY SUBSEQUENT OFFENSE COMMITTED WITHIN
TEN YEARS OF A PREVIOUS VIOLATION OF THIS  SECTION  OR  FOR  AN  OFFENSE
UNDER  THIS  SECTION  INVOLVING  MORE  THAN ONE MOTOR VEHICLE, provided,
however, that no person, firm,  partnership,  or  corporation  shall  be
convicted  under the section where a vehicle has been resold in reliance
on the required statement  of  the  prior  owner  and  pursuant  to  the
provisions  of  [subdivision  one,  two, three and four of section three
hundred ninety-two-e] THIS SECTION.
  2. A person, firm, partnership, or corporation  who,  WITH  INTENT  TO
DEFRAUD,  shall  misrepresent the mileage of a motor vehicle to a trans-
feree by the execution and delivery of the written statement required in
[the preceding paragraph hereof] SUBDIVISION ONE  OF  THIS  SECTION  and
which  in fact is false, or who, WITH INTENT TO DEFRAUD, shall misrepre-
sent such mileage to a transferee by disconnection, changing, or causing
to be disconnected or changed any mileage registering device on a  motor
vehicle so as to thereby indicate a lesser mileage than such motor vehi-
cle has actually travelled, shall be guilty of a CLASS A misdemeanor FOR
A FIRST OFFENSE INVOLVING ONLY ONE MOTOR VEHICLE OR SHALL BE GUILTY OF A
CLASS  E FELONY FOR ANY SUBSEQUENT OFFENSE COMMITTED WITHIN TEN YEARS OF
A PREVIOUS VIOLATION OF THIS  SECTION  OR  FOR  AN  OFFENSE  UNDER  THIS
SECTION INVOLVING MORE THAN ONE MOTOR VEHICLE.
  2-a.  (a) No person, firm, partnership, or corporation shall, prior to
the transfer of ownership of a motor vehicle, misrepresent by any state-
ment, express or implied and which in fact is false,  the  mileage  said
motor  vehicle purports to have been operated as the same appears on the
odometer in such motor vehicle. Nothing contained herein shall be deemed
to [supercede] SUPERSEDE the provisions of any other subdivision of this
section.
  (b) A violation of this subdivision shall be subject to a fine not  to
exceed  five hundred dollars for each violation; provided, however, that
a knowing or willful violation of this subdivision shall be subject to a
fine not to exceed one thousand  five  hundred  dollars  for  each  such
violation.  No person, firm, partnership, or corporation shall be deemed
to have violated this subdivision where the vehicle is sold, offered for
sale, or advertised for sale in reliance on the  required  statement  of
the prior owner and pursuant to the provisions of subdivisions one, two,
[three and] four AND FIVE of this section.
  (c)  Unless  the misrepresentation was made with an intent to defraud,
the provisions of paragraphs (a) and (b) of this subdivision  shall  not
apply to a statement made regarding a vehicle the most current ownership
document for which is a salvage certificate or like document issued by a
state  or  jurisdiction  or  regarding  a vehicle sold by a salvage pool
registered under section four hundred fifteen-a of the vehicle and traf-
fic law.
  3. ANY PERSON WHO, WITH INTENT TO DEFRAUD, DISCONNECTS OR CHANGES  THE
ODOMETER  ON  A MOTOR VEHICLE SO AS TO THEREBY INDICATE A LESSER MILEAGE
THAN SUCH MOTOR VEHICLE HAS ACTUALLY TRAVELLED, SHALL  BE  GUILTY  OF  A
CLASS A MISDEMEANOR FOR A FIRST OFFENSE INVOLVING ONLY ONE MOTOR VEHICLE

S. 2957                             3

OR  SHALL  BE  GUILTY  OF  A  CLASS  E FELONY FOR ANY SUBSEQUENT OFFENSE
COMMITTED WITHIN TEN YEARS OF A PREVIOUS VIOLATION OF  THIS  SECTION  OR
FOR AN OFFENSE UNDER THIS SECTION INVOLVING MORE THAN ONE MOTOR VEHICLE.
  4.  Nothing  herein  contained  shall  prevent  the service, repair or
replacement of a mileage registering device, provided the mileage  indi-
cated thereon remains the same as before the service, repair or replace-
ment; or provided the mileage registering device reads zero and a notice
in  writing  is  attached to the left front door frame of the vehicle by
the owner or his agent, indicating the mileage prior to replacement  and
the  date  on  which  it  was replaced. Any unauthorized removal of such
notice so affixed shall constitute a violation  of  subdivision  two  of
[section three hundred ninety-two-e] THIS SECTION.
  [4] 5. This section shall not apply to new motor vehicles. A new motor
vehicle  is  one  sold  or transferred by a manufacturer, distributor or
dealer and which has not been placed in consumer use  or  has  not  been
used as a demonstrator.
  6.  ANY PERSON WHO HAS BEEN INJURED BY REASON OF ANY VIOLATION OF THIS
SECTION MAY BRING AN ACTION IN HIS OR HER OWN  NAME  TO  RECOVER  ACTUAL
DAMAGES OR FIVE HUNDRED DOLLARS, WHICHEVER IS GREATER. THE COURT MAY, IN
ITS DISCRETION, INCREASE THE AWARD OF DAMAGES TO AN AMOUNT NOT TO EXCEED
THREE  TIMES  THE  ACTUAL  DAMAGES OR ONE THOUSAND FIVE HUNDRED DOLLARS,
WHICHEVER IS GREATER, IF THE COURT FINDS  THE  DEFENDANT  WILLFULLY  AND
KNOWINGLY  VIOLATED  THIS SECTION. THE COURT MAY AWARD COSTS AND REASON-
ABLE ATTORNEY'S FEES TO A PREVAILING PLAINTIFF.
  7. WHENEVER THE ATTORNEY GENERAL SHALL BELIEVE FROM EVIDENCE SATISFAC-
TORY TO HIM OR HER THAT ANY PERSON, FIRM,  PARTNERSHIP,  CORPORATION  OR
ASSOCIATION  OR AGENT OR EMPLOYEE THEREOF, HAS VIOLATED ANY PROVISION 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  BY  A  SPECIAL PROCEEDING TO ISSUE AN INJUNCTION, AND UPON
NOTICE TO THE DEFENDANT OF NOT  LESS  THAN  FIVE  DAYS,  TO  ENJOIN  AND
RESTRAIN  THE  CONTINUANCE  OF SUCH VIOLATION; AND IF IT SHALL APPEAR TO
THE SATISFACTION OF THE COURT OR JUSTICE  THAT  THE  DEFENDANT  HAS,  IN
FACT,  VIOLATED  THIS SECTION, AN INJUNCTION MAY BE ISSUED BY SUCH 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.  WHENEVER  THE  COURT  SHALL  DETERMINE THAT A
VIOLATION OF THIS SECTION HAS OCCURRED, THE COURT  MAY  IMPOSE  A  CIVIL
PENALTY  OF  NOT  MORE  THAN TWO THOUSAND DOLLARS FOR EACH VIOLATION. IN
CONNECTION WITH ANY SUCH PROPOSED APPLICATION, THE ATTORNEY  GENERAL  IS
AUTHORIZED  TO TAKE PROOF AND MAKE A DETERMINATION OF THE RELEVANT FACTS
AND TO ISSUE SUBPOENAS IN ACCORDANCE WITH THE  CIVIL  PRACTICE  LAW  AND
RULES.
  8.  THE  DEPARTMENT  OF LAW MAY PROSECUTE EVERY PERSON, FIRM, PARTNER-
SHIP, CORPORATION OR ASSOCIATION OR AGENT OR  EMPLOYEE  CHARGED  WITH  A
CRIMINAL  OFFENSE IN VIOLATION OF THIS SECTION. IN ALL SUCH PROCEEDINGS,
THE DEPARTMENT MAY APPEAR BEFORE ANY COURT OF RECORD OR ANY  GRAND  JURY
AND  PERFORM  ALL  THE  DUTIES IN RESPECT OF SUCH ACTIONS OR PROCEEDINGS
WHICH THE DISTRICT ATTORNEY WOULD OTHERWISE BE AUTHORIZED OR REQUIRED TO
EXERCISE OR PERFORM. THE DEPARTMENT MAY INCLUDE IN AN ACTION UNDER  THIS
SUBDIVISION AN APPLICATION TO DIRECT RESTITUTION, DAMAGES AND PENALTIES.
  S  3. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.

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Senate Bill S2957

Sponsored By

Archive: Last Bill Status - In Senate Committee Codes Committee

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2011-S2957 (ACTIVE) - Details

2011-S2957 (ACTIVE) - Summary

2011-S2957 (ACTIVE) - Sponsor Memo

2011-S2957 (ACTIVE) - Bill Text download pdf

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Sponsored By

Carl Kruger

Archive: Last Bill Status - In Senate Committee Codes Committee

Actions

2011-S2957 (ACTIVE) - Details

2011-S2957 (ACTIVE) - Summary

2011-S2957 (ACTIVE) - Sponsor Memo

2011-S2957 (ACTIVE) - Bill Text download pdf

Comments