S T A T E O F N E W Y O R K
________________________________________________________________________
1380
2019-2020 Regular Sessions
I N A S S E M B L Y
January 15, 2019
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Introduced by M. of A. PHEFFER AMATO, QUART, DILAN, NORRIS, CRESPO,
NOLAN -- Multi-Sponsored by -- M. of A. EPSTEIN -- read once and
referred to the Committee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to safety recalls
on used motor vehicles
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The general business law is amended by adding a new section
198-d to read as follows:
§ 198-D. USED MOTOR VEHICLES; RECALLS. (A) FOR THE PURPOSE OF THIS
SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(1) "DEALER" SHALL HAVE THE SAME MEANING AS PARAGRAPH A OF SUBDIVISION
ONE OF SECTION FOUR HUNDRED FIFTEEN OF THE VEHICLE AND TRAFFIC LAW.
(2) "USED MOTOR VEHICLE" SHALL HAVE THE SAME MEANING AS PARAGRAPH I OF
SUBDIVISION ONE OF SECTION FOUR HUNDRED FIFTEEN OF THE VEHICLE AND TRAF-
FIC LAW.
(3) "STOP DRIVE ORDER" SHALL MEAN A NOTIFICATION ISSUED UNDER 49 USC
SECTION 30118 WHICH INCLUDES PRECAUTIONARY ADVICE TO STOP DRIVING A
MOTOR VEHICLE (INCLUDING THE VEHICLE IDENTIFICATION NUMBER FOR SUCH
VEHICLE).
(4) "SAFER CAR WEBSITE" SHALL MEAN ANY WEBSITE, APPLICATION, OR INTER-
NET ACCESSED PLATFORM OPERATED BY THE NATIONAL HIGHWAY TRAFFIC SAFETY
ADMINISTRATION, THE UNITED STATES DEPARTMENT OF TRANSPORTATION, OR THEIR
AGENT AND/OR SUBCONTRACTOR, WHEREIN A CONSUMER MAY DETERMINE THE STATUS
OF ALL RECALLS ON ANY NEW AND/OR USED MOTOR VEHICLE.
(B) IF THE INQUIRY REQUIRED TO BE PERFORMED BY SUBDIVISION (F) OF THIS
SECTION REVEALS THAT THE USED MOTOR VEHICLE SUBJECT TO THE CONTRACT IS
UNDER A STOP DRIVE ORDER, THE DEALER REQUIRED TO PERFORM SUCH INQUIRY
SHALL NOT SELL OR LEASE ANY SUCH VEHICLE UNTIL THE DEFECT OR NONCOMPLI-
ANCE IS REMEDIED.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03742-01-9
A. 1380 2
(C) A DEALER SHALL DISCLOSE IN ANY PRINT AND ONLINE ADVERTISEMENT THAT
ANY USED MOTOR VEHICLE BEING ADVERTISED MAY BE SUBJECT TO A RECALL, AND
THAT A CONSUMER MAY OBTAIN ALL RECALL INFORMATION FROM THE SAFER CAR
WEBSITE. TWO DAYS PRIOR TO THE SUBMISSION OF ANY ADVERTISEMENT FOR A
USED MOTOR VEHICLE, A DEALER SHALL MAKE AN INQUIRY ON THE SAFER CAR
WEBSITE FOR ANY OPEN RECALLS. IF ANY OPEN RECALLS ARE LISTED ON THIS
REPORT, THE DEALER SHALL EITHER CAUSE THE RECALL DEFECT TO BE REPAIRED
BEFORE THE USED VEHICLE IS DELIVERED TO THE CONSUMER, OR CLEARLY DISPLAY
NOTICE, IN SUCH ADVERTISEMENT, STATING THAT THE PARTICULAR VEHICLE IS
SUBJECT TO AN OPEN RECALL.
(D) A DEALER SHALL MAINTAIN A LINK ON ANY WEBSITE OR ONLINE PLATFORM
ADVERTISING USED CARS, WHICH IT CONTROLS DIRECTING THAT A CONSUMER MAY
OBTAIN ALL RECALL INFORMATION FROM THE SAFER CAR WEBSITE.
(E) A DEALER SHALL PLACE UPON ALL USED VEHICLES FOR SALE A STICKER
AND/OR DECAL THAT INCLUDES INFORMATION THAT WILL ALLOW A CONSUMER TO
CHECK THE STATUS OF ANY RECALLS ON SAID VEHICLE THROUGH THE SAFER CAR
WEBSITE, OR SHALL PROVIDE A MEANS OF CHECKING SAID VEHICLE'S RECALL
STATUS ON THE SAFER CAR WEBSITE BY SCANNING A BAR CODE, QR CODE, OR
VEHICLE IDENTIFICATION NUMBER, OR SHALL PROVIDE A REPORT, WHICH MAY BE A
PRINTOUT OF THE RESULTS OF A SEARCH OF THE SAFER CAR WEBSITE REFLECTING
THE VEHICLE'S RECALL STATUS, PROVIDED THAT ANY SUCH REPORT IS NO MORE
THAN TWO DAYS OLD OR IS OTHERWISE ACCURATE REGARDING SAID VEHICLE.
(F) A DEALER SHALL PERFORM, PRIOR TO, BUT NO EARLIER THAN TWO DAYS
BEFORE, THE EXECUTION OF THE SALE OR LEASE OF ANY USED VEHICLE, A SEARCH
USING THE VEHICLE IDENTIFICATION NUMBER OF THE VEHICLE INVOLVED IN THE
TRANSACTION ON THE SAFER CAR WEBSITE, AND SHALL PRODUCE AND PROVIDE THE
REPORT FROM SUCH WEBSITE TO THE PURCHASER OF ANY MOTOR VEHICLE SAFETY
RECALL OR RECALLS THAT THE MOTOR VEHICLE IS SUBJECT TO, THAT SUCH
RECALLS MAY BE REPAIRED BY A MOTOR VEHICLE DEALER APPROVED BY THE
MANUFACTURER OF THE VEHICLE, AND THAT FURTHER INFORMATION ON THE RECALLS
MAY BE OBTAINED FROM THE NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION
ON ITS SAFER CAR WEBSITE. PROVIDING A PRINTOUT OF THE RESULT OF THE
SEARCH PROVIDED FOR IN THIS SUBDIVISION SHALL BE DEEMED COMPLIANCE WITH
THIS REQUIREMENT, AND SUCH NOTICE SHALL BE SIGNED BY THE PURCHASER.
ADDITIONALLY, COMPLIANCE WITH THE NOTICE REQUIREMENTS FOUND IN THIS
SECTION SHALL BE A COMPLETE DEFENSE TO ANY ACTION UNDER SECTIONS THREE
HUNDRED FORTY-NINE OR THREE HUNDRED FIFTY OF THIS CHAPTER, SUBDIVISION
TWELVE OF SECTION SIXTY-THREE OF THE EXECUTIVE LAW, OR TO ANY OTHER
STATE OR LOCAL LAW, RULE OR REGULATION TO THE EXTENT THAT SUCH ACTION IS
PREMISED UPON ANY ALLEGED FAILURE TO PROVIDE SUFFICIENT OR TIMELY NOTICE
OF AN OPEN RECALL.
(G) WHERE A FRANCHISOR OR MANUFACTURER, AS DEFINED BY SECTION FOUR
HUNDRED SIXTY-TWO OF THE VEHICLE AND TRAFFIC LAW, DIRECTLY OR INDIRECTLY
SUBJECTS ANY DEALER TO ANY FINANCIAL OR OTHER PENALTIES OR OTHERWISE
PENALIZES OR PREVENTS A DEALER FROM SELLING OR LEASING ANY USED MOTOR
VEHICLE SUBJECT TO RECALL, INCLUDING WHERE ANY SUCH RESTRICTIONS ARE
IMPOSED BY THE MANUFACTURER, EITHER THROUGH THE ISSUANCE OF A "STOP
SELL" OR ANY OTHER COMMUNICATION THAT PREVENTS OR PENALIZES A DEALER
FROM OFFERING A VEHICLE FOR SALE, OR FEDERAL, STATE, OR LOCAL LAW OR
REGULATION:
(1) THE FRANCHISOR OR MANUFACTURER SHALL, WHERE PARTS OR A REMEDY ARE
NOT REASONABLY AVAILABLE AND A POLICY DESCRIBED IN THIS SUBDIVISION IS
IN EFFECT, FOLLOWING FIFTEEN DAYS NOTICE FROM A DEALER THAT THEY ARE IN
POSSESSION OF A VEHICLE SUBJECT TO THE PROVISIONS OF THIS SECTION
PROVIDE TO SAID DEALER A PAYMENT OF ONE AND SEVENTY-FIVE HUNDREDTHS
PERCENT OF THE VALUE OF THE USED MOTOR VEHICLE AS DETERMINED BY THE
A. 1380 3
AVERAGE "TRADE-IN" VALUE FOR A SIMILAR USED VEHICLE AS INDICATED IN A
WIDELY DISSEMINATED, PUBLICLY AVAILABLE, INDEPENDENT USED MOTOR VEHICLE
GUIDE FOR THE YEAR, MAKE, MODEL, AND MILEAGE OF THE USED MOTOR VEHICLE
IN THE POSSESSION OF THE DEALER FOR EVERY THIRTY DAYS, OR PORTION OF
THIRTY DAYS, THE DEALER IS UNABLE TO SELL, OFFER TO SELL, OR REPAIR SUCH
VEHICLE DUE TO THE INABILITY TO SATISFY ANY RECALL ISSUED FOR SUCH VEHI-
CLE OR DUE TO A COMMUNICATION DESCRIBED IN THE OPENING PARAGRAPH OF THIS
SUBDIVISION RECEIVED FROM THE MANUFACTURER REGARDING THE SALE OF SUCH
VEHICLE; AND
(2) ALL REIMBURSEMENT CLAIMS MADE BY A DEALER PURSUANT TO THIS SUBDI-
VISION SHALL BE SUBJECT TO THE PROCEDURE ESTABLISHED UNDER SUBDIVISIONS
TWO THROUGH SEVEN OF SECTION FOUR HUNDRED SIXTY-FIVE OF THE VEHICLE AND
TRAFFIC LAW.
(H) THE MANUFACTURER OR FRANCHISOR MAY NOT RETALIATE AGAINST A DEALER
WHO HAS SUBMITTED A CLAIM FOR REIMBURSEMENT UNDER THIS SECTION OR WHO
WAS OTHERWISE COMPENSATED FOR A VEHICLE SUBJECT TO A RECALL. FOR THE
PURPOSES OF THIS SUBDIVISION, RETALIATION SHALL INCLUDE, BUT SHALL NOT
BE LIMITED TO, REDUCING THE AMOUNT OF COMPENSATION OTHERWISE OWED TO A
DEALER, WHETHER THROUGH A CHARGEBACK, REMOVAL FROM AN INCENTIVE PROGRAM,
REDUCING THE AMOUNT OWED UNDER AN INCENTIVE PROGRAM, OR ANY OTHER MEANS,
IMPOSING ADDITIONAL REQUIREMENTS, WITHHOLDING INVENTORY, REDUCING ALLO-
CATION, REQUIRING ANY FACILITY UPGRADE, OR OTHERWISE SURCHARGING OR
PENALIZING THE DEALER. A DEALER MAY NOT, HOWEVER, RECEIVE COMPENSATION
FOR THE SAME VEHICLE UNDER RECALL UNDER THIS SECTION, AS WELL AS UNDER
ANOTHER MANUFACTURER PROGRAM DESIGNED TO MITIGATE DEALER COSTS FOR THE
HOLDING OF VEHICLES UNDER RECALL, UNLESS OTHERWISE ENTITLED TO SUCH
COMPENSATION, AND SUCH COMPENSATION IS EQUAL TO OR GREATER THAN THAT
PROVIDED UNDER PARAGRAPH ONE OF SUBDIVISION (G) OF THIS SECTION.
(I) THE MANUFACTURER OR FRANCHISOR SHALL PAY FOR ANY REPAIRS PERFORMED
BY THE DEALER TO REMEDY ANY RECALL, PURSUANT TO THE PROVISIONS OF
SECTION FOUR HUNDRED SIXTY-FIVE OF THE VEHICLE AND TRAFFIC LAW. ANY
REPLACEMENT PART PROVIDED FOR A RECALL REPAIR SHALL BE PAID AT THE
EXISTING RETAIL REIMBURSEMENT RATE IN EXISTENCE AT THE TIME THE REPAIR
IS PERFORMED.
§ 2. This act shall take effect immediately, provided, however, that
subdivisions (b) through (f) of section one hundred ninety-eight-d of
the general business law, as added by section one of this act, shall
take effect on the sixtieth day after this act shall have become a law.