Senate Bill S4364B

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4364
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 11, 2019
                                ___________
 
 Introduced  by  Sen.  THOMAS -- read twice and ordered printed, and when
   printed to be committed to the Committee on Transportation
 
 AN ACT to amend the vehicle and traffic law  and  the  general  business
   law, in relation to designating new automotive broker businesses
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of section 415 of the vehicle and traffic law
 is amended by adding a new paragraph n to read as follows:
   N. "NEW AUTOMOBILE BROKER BUSINESS" SHALL HAVE THE SAME MEANING AS SET
 FORTH IN SUBDIVISION FOUR OF SECTION SEVEN  HUNDRED  THIRTY-SIX  OF  THE
 GENERAL BUSINESS LAW.
   §  2.  Section  736 of the general business law is amended by adding a
 new subdivision 4 to read as follows:
   4. "NEW AUTOMOBILE BROKER BUSINESS" MEANS ANY PERSON WHO, FOR  A  FEE,
 COMMISSION  OR  OTHER VALUABLE CONSIDERATION, REGARDLESS OF WHETHER SUCH
 FEE, COMMISSION OR CONSIDERATION IS PAID DIRECTLY BY A CONSUMER,  OFFERS
 TO PROVIDE, PROVIDES OR REPRESENTS THAT HE OR SHE WILL PROVIDE A SERVICE
 OF  PURCHASING,  ARRANGING,  ASSISTING,  FACILITATING  OR  EFFECTING THE
 PURCHASE OR LEASE OF A  PREVIOUSLY  UNREGISTERED  AUTOMOBILE  AS  AGENT,
 BROKER, OR INTERMEDIARY FOR A CONSUMER. "NEW AUTOMOBILE BROKER BUSINESS"
 DOES  NOT  INCLUDE ANY PERSON REGISTERED AS A NEW VEHICLE DEALER FOR THE
 NEW AUTOMOBILE BRAND OR BRANDS FOR WHICH  SUCH  SERVICES  ARE  PROVIDED,
 PURSUANT  TO ARTICLE SIXTEEN OF THE VEHICLE AND TRAFFIC LAW NOR ANY BONA
 FIDE EMPLOYEE, AS OPPOSED TO AN INDEPENDENT CONTRACTOR, OF SUCH A REGIS-
 TERED DEALER WHILE ACTING FOR SUCH DEALER.  FOR THE PURPOSES HEREOF, ANY
 EMPLOYEE WHO, PURSUANT TO DEPARTMENT  OF  LABOR  GUIDELINES,  RULES  AND
 REGULATIONS,  WOULD BE AN INDEPENDENT CONTRACTOR FOR A REGISTERED DEALER
 SHALL NOT BE DEEMED A BONA FIDE EMPLOYEE.
   § 3. Subdivision 3-a and paragraph b-3 of subdivision 5 of section 415
 of the vehicle and traffic law, as added by chapter 477 of the  laws  of
 2017, are amended to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08916-04-9

 S. 4364                             2
 
   3-a.  Automobile  broker  business  [registration]  OR  NEW AUTOMOBILE
 BROKER BUSINESS.  No person shall engage in the automobile broker  busi-
 ness,  THE NEW AUTOMOBILE BROKER BUSINESS or represent or advertise that
 he or she is engaged or intends to engage in the automobile broker busi-
 ness OR NEW AUTOMOBILE BROKER BUSINESS in this state, unless there shall
 have been issued to him or her a certificate of registration as an auto-
 mobile  broker  business  OR NEW AUTOMOBILE BROKER BUSINESS, AS THE CASE
 MAY BE, by the commissioner under this section pursuant to  an  applica-
 tion  for  registration  submitted  pursuant to subdivision five of this
 section.
   b-3. In the case of an application for registration as  an  automobile
 broker  business OR NEW AUTOMOBILE BROKER BUSINESS, the name and address
 of the surety company which will issue the bond required by  subdivision
 one of section seven hundred forty-a of the general business law. If the
 bond  is  to  be  issued  by  an  authorized agent of the surety company
 licensed by the state, then the name and address of that  agent  may  be
 provided in lieu of the information concerning the surety company.
   §  4.  Subdivision  5 of section 415 of the vehicle and traffic law is
 amended by adding a new paragraph e to read as follows:
   E.  BEFORE  APPLICATION  FOR  A  NEW  AUTOMOBILE  BROKER  BUSINESS  IS
 APPROVED,  THE APPLICANT MUST HAVE SUBMITTED ALONG WITH THE APPLICATION,
 WRITTEN CONFIRMATION FROM THE NEW MOTOR VEHICLE MANUFACTURER AUTHORIZING
 SUCH APPLICANT TO SERVE AS A BROKER FOR THE SALE OR LEASE OF  THE  LINES
 OR  MAKES  OF  THE NEW MOTOR VEHICLES WHICH APPLICANT PROPOSES TO BROKER
 FROM THE LOCATIONS DESCRIBED IN THE APPLICATION.
   § 5. Subdivision 1 of section 736-a of the general  business  law,  as
 added by chapter 477 of the laws of 2017, is amended to read as follows:
   1. No person shall engage in business as an automobile broker business
 OR  AS  A  NEW  AUTOMOBILE BROKER BUSINESS, as SUCH TERMS ARE defined in
 section seven hundred thirty-six of this article, without  first  having
 been issued a certificate of registration for an automobile broker busi-
 ness OR NEW AUTOMOBILE BROKER BUSINESS pursuant to paragraph c of subdi-
 vision  seven of section four hundred fifteen of the vehicle and traffic
 law.
   § 6. Section 737 of the general business law, as added by chapter  616
 of the laws of 1988, is amended to read as follows:
   §  737.  Advance fees prohibited. No automobile broker business OR NEW
 AUTOMOBILE BROKER BUSINESS shall solicit,  receive  or  collect  from  a
 consumer  any fee, or commission, in advance of the performance of those
 services specified in the contract as required by section seven  hundred
 thirty-eight of this article.
   §  7.  The  opening  paragraph  of subdivision 1 of section 738 of the
 general business law, as amended by chapter 28 of the laws of  2018,  is
 amended to read as follows:
   Every  contract  between a consumer and an automobile broker business,
 WHICH FOR THE PURPOSES OF THIS  SECTION  SHALL  INCLUDE  NEW  AUTOMOBILE
 BROKER  BUSINESSES,  for the purchase of an automobile shall be in writ-
 ing, shall be dated, shall contain the street address of the  automobile
 broker business and the consumer and shall be signed by the consumer and
 by  the automobile broker business. Every contract shall comply with the
 requirements set forth in this section and contain the following:
   § 8. Section 740 of the general business law, as added by chapter  616
 of the laws of 1988, is amended to read as follows:
   §  740.  Escrow  required  for  advance payments. All monies paid by a
 consumer to an automobile broker business OR  A  NEW  AUTOMOBILE  BROKER
 BUSINESS  in connection with a transaction covered by this article shall

 S. 4364                             3
 
 be trust funds in the possession of such automobile broker  business  OR
 NEW  AUTOMOBILE BROKER BUSINESS and shall be deposited by it within five
 days after receipt thereof, in an  account  in  a  banking  organization
 within  the  state.  The  automobile  broker  business OR NEW AUTOMOBILE
 BROKER BUSINESS shall thereupon notify in writing the  consumer,  giving
 the name and address of the banking organization and the amount deposit-
 ed.  The  monies  shall  be  held  on deposit until fully applied to the
 contract price at the time the automobile is delivered to the  consumer,
 unless sooner repaid in accordance with the provisions of this article.
   §  9.  Section  740-a of the general business law, as added by chapter
 579 of the laws of 2011 and subdivision 1 as amended by chapter  477  of
 the laws of 2017, is amended to read as follows:
   § 740-a. Automobile broker business AND NEW AUTOMOBILE BROKER BUSINESS
 surety  bond.  1. Automobile broker businesses AND NEW AUTOMOBILE BROKER
 BUSINESSES shall obtain and continue in  effect  a  surety  bond  in  an
 amount  of  one  hundred  thousand  dollars executed by a surety company
 authorized to transact business in the state by the department of finan-
 cial services of the state or its successor. The bonds shall be approved
 as to form by the secretary of state and shall  be  conditioned  on  the
 automobile  broker  business' OR NEW AUTOMOBILE BROKER BUSINESS' payment
 of all valid bank drafts, including checks, drawn for  the  purchase  of
 motor  vehicles  and safekeeping of all customer deposits related to the
 sale of a motor vehicle between the time of  receipt  of  such  customer
 deposit and the transfer of good title to the vehicle to the customer.
   2.  Recovery  against  a  bond  may be made by a person, including the
 state, who obtains a judgment against the automobile broker business  OR
 NEW  AUTOMOBILE BROKER BUSINESS for an act or omission on which the bond
 is conditioned if the act or omission occurred during the  term  of  the
 bond.  The  total liability imposed on the surety under this section for
 all breaches of the bond condition is limited to the face amount of  the
 bond.  Such  liability may include, but is not limited to, the amount of
 the valid bank drafts, including checks, drawn by the automobile  broker
 business  OR  NEW  AUTOMOBILE  BROKER BUSINESS for the purchase of motor
 vehicles. In no event shall the surety on a bond  be  liable  for  total
 claims  in excess of the bond amount, regardless of the number or nature
 of claims made against the bond or the number of years the bond remained
 in force.
   3. Any surety issuing a bond pursuant to  this  subdivision  shall  be
 required  to  provide sixty days' notice to the secretary of state prior
 to the effective date of cancellation of the bond.
   § 10. Section 741 of the general business law, as added by chapter 616
 of the laws of 1988, is amended to read as follows:
   § 741. Deceptive acts prohibited. It is hereby declared to be a decep-
 tive trade practice and unlawful for an automobile  broker  business  OR
 NEW AUTOMOBILE BROKER BUSINESS to misrepresent directly or indirectly in
 its  advertising,  promotional  materials, sales presentation, or in any
 manner:
   1. The nature of the services to be performed;
   2. The time within which the services will be performed;
   3. The cost of the services to be performed; and
   4. The ability of the automobile broker  business  OR  NEW  AUTOMOBILE
 BROKER BUSINESS to perform the services.
   § 11. Section 741-a of the general business law, as amended by chapter
 477 of the laws of 2017, is amended to read as follows:
   §  741-a. Advertising. Automobile broker businesses AND NEW AUTOMOBILE
 BROKER BUSINESSES shall clearly and conspicuously disclose the following

 S. 4364                             4
 
 in all advertisements in any medium, and in any print advertisement such
 disclosures shall not appear in any footnotes and shall be  situated  in
 the top half of any such advertisement in an easily readable typeface:
   (a) That the automobile broker business OR NEW AUTOMOBILE BROKER BUSI-
 NESS  is  not  a registered new motor vehicle dealer but is a registered
 automobile broker business OR NEW AUTOMOBILE BROKER BUSINESS as  defined
 in section four hundred fifteen of the vehicle and traffic law;
   (b)  The  registration number issued to the automobile broker business
 OR NEW AUTOMOBILE BROKER  BUSINESS  pursuant  to  section  four  hundred
 fifteen of the vehicle and traffic law;
   (c)  Whether any fees may be imposed by the automobile broker business
 OR NEW AUTOMOBILE BROKER BUSINESS for services rendered. Details of such
 compensation shall be provided by the automobile broker business OR  NEW
 AUTOMOBILE BROKER BUSINESS upon request by the consumer; and
   (d)  That  no warranty repair services will be provided by the automo-
 bile broker business OR NEW AUTOMOBILE BROKER BUSINESS.
   § 12. Section 415 of the vehicle and traffic law is amended by  adding
 a new subdivision 21 to read as follows:
   21. PENALTIES AND RIGHTS OF ACTION FOR FAILURE TO OBTAIN A CERTIFICATE
 OF  REGISTRATION  AS  A  NEW  AUTOMOBILE  BROKER PURSUANT TO SUBDIVISION
 THREE-A AND PARAGRAPH B-3 OF SUBDIVISION FIVE OF THIS  SECTION.  A.  THE
 COMMISSIONER,  OR  ANY  PERSON  DESIGNATED  BY  HIM  OR HER, MAY PROCEED
 AGAINST A PARTY WHO HAS OPERATED AS  A  NEW  AUTOMOBILE  BROKER  WITHOUT
 CERTIFICATE  OF  REGISTRATION  IN ACCORDANCE WITH THE PROVISIONS OF THIS
 ARTICLE, IN ANY ONE OR MORE PROCEEDINGS AND BY ORDER REQUIRE THE OFFEND-
 ING PARTY TO PAY THE PEOPLE OF THIS STATE A PENALTY  IN  A  SUM  NOT  TO
 EXCEED  TWO  THOUSAND  DOLLARS  FOR  EACH  VIOLATION  FOUND TO HAVE BEEN
 COMMITTED. CIVIL PENALTIES ASSESSED UNDER THIS SUBDIVISION SHALL BE PAID
 TO THE COMMISSIONER FOR DEPOSIT INTO  THE  STATE  TREASURY,  AND  UNPAID
 CIVIL  PENALTIES  MAY BE RECOVERED BY THE COMMISSIONER IN A CIVIL ACTION
 IN THE NAME OF THE COMMISSIONER. FOR THE PURPOSES OF THIS SUBDIVISION, A
 "VIOLATION" SHALL MEAN EACH VEHICLE SOLD OR LEASED  TO  A  CONSUMER  FOR
 WHICH  THE PARTY THAT FAILED TO OBTAIN CERTIFICATION AS A NEW AUTOMOBILE
 BROKER HAS SERVED AS A NEW AUTOMOBILE BROKER.
   B. IN ADDITION TO ANY CIVIL ACTION BROUGHT BY THE COMMISSIONER OR  ANY
 PERSON  APPOINTED  BY  HIM,  ANY  COMPLAINANT  OR  COMPLAINANTS  WHO ARE
 AGGRIEVED BY ANY VIOLATION OF SUBDIVISION THREE-A AND PARAGRAPH  B-3  OF
 SUBDIVISION  FIVE OF THIS SECTION, SHALL BE ENTITLED TO SUE FOR AND HAVE
 INJUNCTIVE RELIEF AND DAMAGES AGAINST, ANY PARTY IN VIOLATION OF  SUBDI-
 VISION  THREE-A AND PARAGRAPH B-3 OF SUBDIVISION FIVE OF THIS SECTION IN
 ANY COURT OF THE STATE HAVING JURISDICTION OVER THE  PARTIES.    IN  ANY
 SUCH  JUDICIAL  ACTION OR PROCEEDING, THE COURT MAY ALSO AWARD NECESSARY
 COSTS AND DISBURSEMENTS PLUS REASONABLE ATTORNEY'S FEES AND COSTS.
   § 13. This act shall take effect immediately; provided that all  auto-
 mobile  brokers  registered on the effective date of this act shall have
 ninety days to come into compliance with the provisions of this act.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4364--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 11, 2019
                                ___________
 
 Introduced  by Sens. THOMAS, BROOKS, COMRIE, GAUGHRAN, GOUNARDES, KAMIN-
   SKY, KAPLAN, LIU, MAY, MYRIE, PERSAUD,  SALAZAR,  SAVINO,  SKOUFIS  --
   read  twice  and  ordered printed, and when printed to be committed to
   the Committee on Transportation -- committee discharged, bill amended,
   ordered reprinted as amended and recommitted to said committee

 AN ACT to amend the vehicle and traffic law  and  the  general  business
   law, in relation to designating new automotive broker businesses
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Subdivision 1 of section 415 of the vehicle and traffic law
 is amended by adding a new paragraph n to read as follows:
   N. "NEW AUTOMOBILE BROKER BUSINESS" SHALL HAVE THE SAME MEANING AS SET
 FORTH IN SUBDIVISION FOUR OF SECTION SEVEN  HUNDRED  THIRTY-SIX  OF  THE
 GENERAL BUSINESS LAW.
   §  2.  Section  736 of the general business law is amended by adding a
 new subdivision 4 to read as follows:
   4. "NEW AUTOMOBILE BROKER BUSINESS" MEANS ANY PERSON WHO, FOR  A  FEE,
 COMMISSION  OR  OTHER VALUABLE CONSIDERATION, REGARDLESS OF WHETHER SUCH
 FEE, COMMISSION OR CONSIDERATION IS PAID DIRECTLY BY A CONSUMER,  OFFERS
 TO PROVIDE, PROVIDES OR REPRESENTS THAT HE OR SHE WILL PROVIDE A SERVICE
 OF  PURCHASING,  ARRANGING,  ASSISTING,  FACILITATING  OR  EFFECTING THE
 PURCHASE OR LEASE OF A PREVIOUSLY UNREGISTERED AUTOMOBILE; THROUGH A NEW
 MOTOR VEHICLE DEALER, AS AGENT, BROKER, OR INTERMEDIARY FOR A  CONSUMER.
 "NEW  AUTOMOBILE BROKER BUSINESS" DOES NOT INCLUDE ANY PERSON REGISTERED
 AS A NEW VEHICLE DEALER FOR THE NEW AUTOMOBILE BRAND OR BRANDS FOR WHICH
 SUCH SERVICES ARE PROVIDED, PURSUANT TO ARTICLE SIXTEEN OF  THE  VEHICLE
 AND  TRAFFIC  LAW NOR ANY BONA FIDE EMPLOYEE OF SUCH A REGISTERED DEALER
 WHILE ACTING FOR SUCH DEALER.
   § 3. Subdivision 3-a and paragraph b-3 of subdivision 5 of section 415
 of the vehicle and traffic law, as added by chapter 477 of the  laws  of
 2017, are amended to read as follows:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08916-05-9

 S. 4364--A                          2
 
   3-a.  Automobile  broker  business  [registration]  OR  NEW AUTOMOBILE
 BROKER BUSINESS.  No person shall engage in the automobile broker  busi-
 ness,  THE NEW AUTOMOBILE BROKER BUSINESS or represent or advertise that
 he or she is engaged or intends to engage in the automobile broker busi-
 ness OR NEW AUTOMOBILE BROKER BUSINESS in this state, unless there shall
 have been issued to him or her a certificate of registration as an auto-
 mobile  broker  business  OR NEW AUTOMOBILE BROKER BUSINESS, AS THE CASE
 MAY BE, by the commissioner under this section pursuant to  an  applica-
 tion  for  registration  submitted  pursuant to subdivision five of this
 section.  THE COMMISSIONER SHALL NOT ISSUE ANY CERTIFICATE OF  REGISTRA-
 TION  AUTHORIZED  BY  THIS  SECTION  TO  ANY  FRANCHISOR,  MANUFACTURER,
 DISTRIBUTOR, DISTRIBUTOR BRANCH OR FACTORY BRANCH,  AS  SUCH  TERMS  ARE
 DEFINED  IN  SECTION  FOUR  HUNDRED  SIXTY-TWO  OF THIS TITLE, OR TO ANY
 SUBSIDIARY, AFFILIATE OR CONTROLLED ENTITY THEREOF.
   b-3. In the case of an application for registration as  an  automobile
 broker  business OR NEW AUTOMOBILE BROKER BUSINESS, the name and address
 of the surety company which will issue the bond required by  subdivision
 one  of  section seven hundred forty-a of the general business law AND A
 STATEMENT INDICATING ANY INTEREST IN THE APPLICANT'S BUSINESS ENTITY  BY
 A PERSON OR ENTITY DESCRIBED IN PARAGRAPH F OF SUBDIVISION SEVEN OF THIS
 SECTION. If the bond is to be issued by an authorized agent of the sure-
 ty  company  licensed  by  the  state, then the name and address of that
 agent may be provided in lieu of the information concerning  the  surety
 company.
   §  4.  Subdivision  5 of section 415 of the vehicle and traffic law is
 amended by adding a new paragraph e to read as follows:
   E.  BEFORE  APPLICATION  FOR  A  NEW  AUTOMOBILE  BROKER  BUSINESS  IS
 APPROVED,  THE APPLICANT MUST HAVE SUBMITTED ALONG WITH THE APPLICATION,
 WRITTEN CONFIRMATION FROM THE  NEW  MOTOR  VEHICLE  MANUFACTURER  AND/OR
 DISTRIBUTOR  PERMITTING THE APPLICANT TO SERVE AS AN APPROVED REGISTERED
 BROKER FOR THE SALE OR LEASE, THROUGH A NEW MOTOR VEHICLE DEALER,  OF  A
 NEW  MOTOR  VEHICLE  OF  THE  LINE MAKES WHICH THE APPLICANT PROPOSES TO
 BROKER FROM THE GEOGRAPHIC LOCATION DESCRIBED IN  THE  APPLICATION.  THE
 GEOGRAPHIC  LOCATION INCLUDED IN THE APPLICATION SHALL BE SUBJECT TO THE
 PROVISIONS OF ARTICLE SEVENTEEN-A OF  THIS  TITLE  REGARDING  FRANCHISED
 AUTOMOBILE DEALERS.
   §  5.  Subdivision  1 of section 736-a of the general business law, as
 added by chapter 477 of the laws of 2017, is amended and a new  subdivi-
 sion 3 is added to read as follows:
   1.  (A)  No  person  shall  engage in business as an automobile broker
 business OR AS A NEW AUTOMOBILE  BROKER  BUSINESS,  as  SUCH  TERMS  ARE
 defined  in  section  seven  hundred thirty-six of this article, without
 first having been issued a certificate of registration for an automobile
 broker business OR NEW AUTOMOBILE BROKER BUSINESS pursuant to  paragraph
 c  of  subdivision  seven of section four hundred fifteen of the vehicle
 and traffic law. A CERTIFICATE OF  REGISTRATION  FOR  A  NEW  AUTOMOBILE
 BROKER BUSINESS IS VALID FOR A PERIOD OF TWO YEARS.
   (B)  NO  NEW  AUTOMOBILE  BROKER  BUSINESS  SHALL  REPRESENT OR ACCEPT
 PAYMENT FROM, EITHER DIRECTLY OR INDIRECTLY, A FRANCHISOR,  MANUFACTURER
 AND/OR  DISTRIBUTOR,  AS SUCH TERMS ARE DEFINED IN SECTIONS FOUR HUNDRED
 FIFTEEN AND FOUR HUNDRED SIXTY-TWO OF THE VEHICLE AND TRAFFIC LAW.
   3. THE COMMISSIONER OF MOTOR VEHICLES SHALL MAKE NECESSARY  RULES  AND
 REGULATIONS  AS  MAY  BE  APPROPRIATE  FOR THE PROPER ENFORCEMENT OF THE
 PROVISIONS OF THIS SECTION.
   § 6. The general business law is amended by adding a new section 741-c
 to read as follows:

 S. 4364--A                          3
 
   § 741-C. PROHIBITIONS RELATED TO PRIVATE INFORMATION. NO PERSON REGIS-
 TERED UNDER THIS ARTICLE SHALL REQUEST, HANDLE, STORE  OR  TRANSMIT  THE
 PRIVATE  INFORMATION, AS SUCH TERM IS DEFINED IN PARAGRAPH (B) OF SUBDI-
 VISION ONE OF SECTION EIGHT HUNDRED NINETY-NINE-AA OF THIS  CHAPTER,  OF
 ANY CONSUMER.
   §  7. Section 737 of the general business law, as added by chapter 616
 of the laws of 1988, is amended to read as follows:
   § 737. Advance fees prohibited. No automobile broker business  OR  NEW
 AUTOMOBILE  BROKER  BUSINESS  shall  solicit,  receive or collect from a
 consumer any fee, or commission, in advance of the performance of  those
 services  specified in the contract as required by section seven hundred
 thirty-eight of this article.
   § 8. The opening paragraph of subdivision 1  of  section  738  of  the
 general  business  law, as amended by chapter 28 of the laws of 2018, is
 amended to read as follows:
   Every contract between a consumer and an automobile  broker  business,
 WHICH  FOR  THE  PURPOSES  OF  THIS SECTION SHALL INCLUDE NEW AUTOMOBILE
 BROKER BUSINESSES, for the purchase of an automobile shall be  in  writ-
 ing,  shall be dated, shall contain the street address of the automobile
 broker business and the consumer and shall be signed by the consumer and
 by the automobile broker business. Every contract shall comply with  the
 requirements set forth in this section and contain the following:
   §  9. Section 740 of the general business law, as added by chapter 616
 of the laws of 1988, is amended to read as follows:
   § 740. Escrow required for advance payments.  All  monies  paid  by  a
 consumer  to  an  automobile  broker business OR A NEW AUTOMOBILE BROKER
 BUSINESS in connection with a transaction covered by this article  shall
 be  trust  funds in the possession of such automobile broker business OR
 NEW AUTOMOBILE BROKER BUSINESS and shall be deposited by it within  five
 days  after  receipt  thereof,  in  an account in a banking organization
 within the state. The  automobile  broker  business  OR  NEW  AUTOMOBILE
 BROKER  BUSINESS  shall thereupon notify in writing the consumer, giving
 the name and address of the banking organization and the amount deposit-
 ed. The monies shall be held on  deposit  until  fully  applied  to  the
 contract  price at the time the automobile is delivered to the consumer,
 unless sooner repaid in accordance with the provisions of this article.
   § 10. Section 740-a of the general business law, as added  by  chapter
 579  of  the laws of 2011 and subdivision 1 as amended by chapter 477 of
 the laws of 2017, is amended to read as follows:
   § 740-a. Automobile broker business AND NEW AUTOMOBILE BROKER BUSINESS
 surety bond. 1. Automobile broker businesses AND NEW  AUTOMOBILE  BROKER
 BUSINESSES  shall  obtain  and  continue  in  effect a surety bond in an
 amount of one hundred thousand dollars  executed  by  a  surety  company
 authorized to transact business in the state by the department of finan-
 cial services of the state or its successor. The bonds shall be approved
 as  to  form  by  the secretary of state and shall be conditioned on the
 automobile broker business' OR NEW AUTOMOBILE BROKER  BUSINESS'  payment
 of  all  valid  bank drafts, including checks, drawn for the purchase of
 motor vehicles and safekeeping of all customer deposits related  to  the
 sale  of  a  motor  vehicle between the time of receipt of such customer
 deposit and the transfer of good title to the vehicle to the customer.
   2. Recovery against a bond may be made  by  a  person,  including  the
 state,  who obtains a judgment against the automobile broker business OR
 NEW AUTOMOBILE BROKER BUSINESS for an act or omission on which the  bond
 is  conditioned  if  the act or omission occurred during the term of the
 bond. The total liability imposed on the surety under this  section  for

 S. 4364--A                          4
 
 all  breaches of the bond condition is limited to the face amount of the
 bond. Such liability may include, but is not limited to, the  amount  of
 the  valid bank drafts, including checks, drawn by the automobile broker
 business  OR  NEW  AUTOMOBILE  BROKER BUSINESS for the purchase of motor
 vehicles. In no event shall the surety on a bond  be  liable  for  total
 claims  in excess of the bond amount, regardless of the number or nature
 of claims made against the bond or the number of years the bond remained
 in force.
   3. Any surety issuing a bond pursuant to  this  subdivision  shall  be
 required  to  provide sixty days' notice to the secretary of state prior
 to the effective date of cancellation of the bond.
   § 11. Section 741 of the general business law, as added by chapter 616
 of the laws of 1988, is amended to read as follows:
   § 741. Deceptive acts prohibited. It is hereby declared to be a decep-
 tive trade practice and unlawful for an automobile  broker  business  OR
 NEW AUTOMOBILE BROKER BUSINESS to misrepresent directly or indirectly in
 its  advertising,  promotional  materials, sales presentation, or in any
 manner:
   1. The nature of the services to be performed AND IN THE CASE OF A NEW
 AUTOMOBILE BROKER THAT A  THIRD  PARTY  WILL  BE  PAYING  FOR  ANY  SUCH
 SERVICES;
   2. The time within which the services will be performed;
   3. The cost of the services to be performed; [and]
   4.  The  ability  of  the automobile broker business OR NEW AUTOMOBILE
 BROKER BUSINESS to perform the services; AND
   5. THAT THE AUTOMOBILE BROKER BUSINESS OR NEW AUTOMOBILE BROKER  BUSI-
 NESS  IS AFFILIATED WITH ANY AUTOMOBILE MANUFACTURER AND/OR DISTRIBUTOR,
 PROVIDED, HOWEVER, THAT A NEW AUTOMOBILE BROKER BUSINESS MAY  STATE  THE
 LINE  MAKES  FOR  WHICH  IT  HOLDS  PERMISSION  PURSUANT TO SECTION FOUR
 HUNDRED FIFTEEN OF THE VEHICLE AND TRAFFIC LAW.
   § 12. Section 741-a of the general business law, as amended by chapter
 477 of the laws of 2017, is amended to read as follows:
   § 741-a. Advertising. Automobile broker businesses AND NEW  AUTOMOBILE
 BROKER BUSINESSES shall clearly and conspicuously disclose the following
 in all advertisements in any medium, and in any print advertisement such
 disclosures  shall  not appear in any footnotes and shall be situated in
 the top half of any such advertisement in an easily readable typeface:
   (a) That the automobile broker business OR NEW AUTOMOBILE BROKER BUSI-
 NESS is not a registered new motor vehicle dealer but  is  a  registered
 automobile  broker business OR NEW AUTOMOBILE BROKER BUSINESS as defined
 in section four hundred fifteen of the vehicle and traffic law;
   (b) The registration number issued to the automobile  broker  business
 OR  NEW  AUTOMOBILE  BROKER  BUSINESS  pursuant  to section four hundred
 fifteen of the vehicle and traffic law;
   (c) Whether any fees may be imposed by the automobile broker  business
 OR NEW AUTOMOBILE BROKER BUSINESS for services rendered. Details of such
 compensation  shall be provided by the automobile broker business OR NEW
 AUTOMOBILE BROKER BUSINESS upon request by the consumer; and
   (d) That no warranty repair services will be provided by  the  automo-
 bile broker business OR NEW AUTOMOBILE BROKER BUSINESS.
   §  13. Section 415 of the vehicle and traffic law is amended by adding
 a new subdivision 21 to read as follows:
   21. PENALTIES AND RIGHTS OF ACTION FOR FAILURE TO OBTAIN A CERTIFICATE
 OF REGISTRATION AS A  NEW  AUTOMOBILE  BROKER  PURSUANT  TO  SUBDIVISION
 THREE-A  AND  PARAGRAPH  B-3 OF SUBDIVISION FIVE OF THIS SECTION. A. THE
 COMMISSIONER, OR ANY PERSON  DESIGNATED  BY  HIM  OR  HER,  MAY  PROCEED

 S. 4364--A                          5
 
 AGAINST  A  PARTY  WHO  HAS  OPERATED AS A NEW AUTOMOBILE BROKER WITHOUT
 CERTIFICATE OF REGISTRATION IN ACCORDANCE WITH THE  PROVISIONS  OF  THIS
 ARTICLE, IN ANY ONE OR MORE PROCEEDINGS AND BY ORDER REQUIRE THE OFFEND-
 ING  PARTY  TO  PAY  THE  PEOPLE OF THIS STATE A PENALTY IN A SUM NOT TO
 EXCEED TWO THOUSAND DOLLARS  FOR  EACH  VIOLATION  FOUND  TO  HAVE  BEEN
 COMMITTED. CIVIL PENALTIES ASSESSED UNDER THIS SUBDIVISION SHALL BE PAID
 TO  THE  COMMISSIONER  FOR  DEPOSIT  INTO THE STATE TREASURY, AND UNPAID
 CIVIL PENALTIES MAY BE RECOVERED BY THE COMMISSIONER IN A  CIVIL  ACTION
 IN THE NAME OF THE COMMISSIONER. FOR THE PURPOSES OF THIS SUBDIVISION, A
 "VIOLATION"  SHALL  MEAN  EACH  VEHICLE SOLD OR LEASED TO A CONSUMER FOR
 WHICH THE PARTY THAT FAILED TO OBTAIN CERTIFICATION AS A NEW  AUTOMOBILE
 BROKER HAS SERVED AS A NEW AUTOMOBILE BROKER.
   B.  IN ADDITION TO ANY CIVIL ACTION BROUGHT BY THE COMMISSIONER OR ANY
 PERSON APPOINTED BY HIM, ANY PERSONS INJURED BY ANY VIOLATION OF  SUBDI-
 VISION  THREE-A  AND  PARAGRAPH B-3 OF SUBDIVISION FIVE OF THIS SECTION,
 SHALL BE ENTITLED TO SUE FOR AND  HAVE  INJUNCTIVE  RELIEF  AND  DAMAGES
 AGAINST, ANY PARTY IN VIOLATION OF SUBDIVISION THREE-A AND PARAGRAPH B-3
 OF  SUBDIVISION  FIVE  OF  THIS SECTION IN ANY COURT OF THE STATE HAVING
 JURISDICTION OVER THE PARTIES.  IN THE CASE OF A NEW MOTOR VEHICLE DEAL-
 ER, INJURY SHALL INCLUDE THE SALE OR LEASE OF A NEW MOTOR VEHICLE  TO  A
 PERSON RESIDING WITHIN THE RELEVANT MARKET AREA OF SUCH DEALER. THE TERM
 "RELEVANT  MARKET  AREA"  SHALL  HAVE THE SAME MEANING AS IN SUBDIVISION
 FIFTEEN OF SECTION FOUR HUNDRED SIXTY-TWO OF THIS TITLE.   IN  ANY  SUCH
 JUDICIAL ACTION OR PROCEEDING, THE COURT MAY AWARD REASONABLE ATTORNEY'S
 FEES AND COSTS.
   §  14.  Subdivision 2 of section 463 of the vehicle and traffic law is
 amended by adding three new paragraphs (ll), (mm) and (nn)  to  read  as
 follows:
   (LL) TO ISSUE WRITTEN CONFIRMATION TO A NEW AUTOMOBILE BROKER BUSINESS
 PERMITTING  SUCH  BUSINESS TO SERVE AS AN APPROVED REGISTERED BROKER FOR
 THE SALE OR LEASE, THROUGH A NEW MOTOR VEHICLE DEALER, OF SUCH  MANUFAC-
 TURER'S  NEW  MOTOR  VEHICLES,  UNLESS  THE MANUFACTURER PROVIDES NOTICE
 PURSUANT TO THE TERMS OF THIS PARAGRAPH. ALL DEALERS THAT HAVE  A  RELE-
 VANT MARKET AREA THAT ENCOMPASSES THE PROPOSED SITE SHALL BE ENTITLED TO
 WRITTEN  NOTICE,  VIA CERTIFIED MAIL RETURN RECEIPT REQUESTED, INFORMING
 THEM OF THE PROPOSED APPROVAL OF A NEW AUTOMOBILE BROKER  BUSINESS.  ANY
 NEW  MOTOR  VEHICLE  DEALER  MAY INSTITUTE AN ADJUDICATORY PROCEEDING OR
 ACTION AS PROVIDED IN SECTION FOUR HUNDRED SIXTY-NINE OF THIS ARTICLE TO
 PROTEST THE ISSUANCE OF SUCH WRITTEN CONFIRMATION TO  A  NEW  AUTOMOBILE
 BROKER  BUSINESS PERMITTING SUCH BUSINESS TO SERVE AS AN APPROVED REGIS-
 TERED BROKER FOLLOWING RECEIPT OF SUCH NOTICE, OR FOLLOWING THE  END  OF
 ANY  APPEAL  PROCEDURE PROVIDED BY THE MANUFACTURER. IN ANY ADJUDICATORY
 PROCEEDING OR ACTION BROUGHT BY THE DEALER, THE MANUFACTURER SHALL  HAVE
 THE  BURDEN  OF  PROVING THAT THERE EXISTS GOOD CAUSE TO PERMIT SUCH NEW
 AUTOMOBILE BROKER BUSINESS TO SERVE AS AN APPROVED REGISTERED BROKER AND
 THAT SUCH PERMISSION WILL NOT HARM THE DEALER WITHIN THE RELEVANT MARKET
 AREA. INSTITUTION OF AN ACTION PURSUANT TO THIS PARAGRAPH SHALL SERVE TO
 STAY, WITHOUT BOND, THE EFFECTIVENESS OF  THE  WRITTEN  CONFIRMATION  OF
 SUCH MANUFACTURER UNTIL A FINAL JUDGMENT HAS BEEN RENDERED IN A PROCEED-
 ING  OR  ACTION  AS  PROVIDED IN SECTION FOUR HUNDRED SIXTY-NINE OF THIS
 ARTICLE. A MANUFACTURER SHALL NOT ISSUE WRITTEN CONFIRMATION  PERMITTING
 A  NEW  AUTOMOBILE  BROKER  BUSINESS  TO SERVE AS AN APPROVED REGISTERED
 BROKER TO ANY PERSON OR ENTITY WHICH HAS BEEN CITED FOR ANY VIOLATION OF
 ARTICLE THIRTY-FIVE-B OF THE GENERAL BUSINESS LAW, OR WHICH HAS A  BUSI-
 NESS  RELATIONSHIP  WITH  ANY  NEW  FRANCHISED  MOTOR VEHICLE DEALER NOT
 LICENSED TO OPERATE AS A NEW MOTOR VEHICLE DEALER WITHIN THE  STATE,  OR

 S. 4364--A                          6

 DOES  NOT  HAVE  A RELEVANT MARKET AREA THAT INCLUDES ANY PORTION OF THE
 STATE. FOR THE PURPOSES OF THIS PARAGRAPH "BUSINESS RELATIONSHIP"  SHALL
 MEAN ACTIVITY THAT INCLUDES PAYING A NEW AUTOMOBILE BROKER BUSINESS BY A
 NEW  MOTOR VEHICLE DEALER NOT LICENSED TO OPERATE AS A NEW MOTOR VEHICLE
 DEALER WITHIN THE STATE, OR DOES NOT HAVE A RELEVANT  MARKET  AREA  THAT
 INCLUDES  ANY PORTION OF THE STATE IN CONNECTION WITH THE SALE OR LEADER
 OF A NEW MOTOR VEHICLE.
   (MM) TO ISSUE WRITTEN CONFIRMATION TO A NEW AUTOMOBILE BROKER BUSINESS
 THAT PERMITS SUCH BUSINESS TO SERVE AS AN APPROVED REGISTERED BROKER FOR
 A PERIOD EXCEEDING TWO YEARS.
   (NN) FOR INCENTIVE PAYMENTS, BONUSES, HOLDBACKS  OR  SIMILAR  PAYMENTS
 RELATED  TO  THE  SALE  OR  LEASE  OF  A NEW MOTOR VEHICLE THAT HAS BEEN
 ARRANGED, ASSISTED, FACILITATED OR EFFECTED  IN  A  PARTICULAR  RELEVANT
 MARKET  AREA,  TO DENY A FRANCHISED MOTOR VEHICLE DEALER LOCATED IN SUCH
 RELEVANT MARKET AREA A PAYMENT OF EQUAL VALUE AS  HAS  BEEN  AWARDED  TO
 ANOTHER FRANCHISED MOTOR VEHICLE DEALER. NOTHING IN THIS PARAGRAPH SHALL
 BE  CONSTRUED  TO  AUTHORIZE  ANY  INCENTIVE PAYMENT, BONUS, HOLDBACK OR
 SIMILAR PAYMENT TO ANY AUTOMOBILE  BROKER  BUSINESS  OR  NEW  AUTOMOBILE
 BROKER  BUSINESS,  AS  SUCH  TERMS  ARE DEFINED IN SECTION SEVEN HUNDRED
 THIRTY-SIX OF THE GENERAL BUSINESS LAW.
   § 15. Section 465 of the vehicle and traffic law is amended by  adding
 a new subdivision 8 to read as follows:
   8.  A  NEW VEHICLE MANUFACTURER SHALL REQUIRE ITS FRANCHISEES TO MAIN-
 TAIN A RECORD OF ALL SALES OR LEASES ARRANGED, ASSISTED, FACILITATED  OR
 EFFECTED BY EACH NEW AUTOMOBILE BROKER BUSINESS TO WHICH IT HAS PROVIDED
 WRITTEN  CONFIRMATION  PERMITTING IT TO SERVE AS A NEW AUTOMOBILE BROKER
 BUSINESS, AS SUCH TERM IS DEFINED IN SECTION SEVEN HUNDRED THIRTY-SIX OF
 THE GENERAL BUSINESS LAW. NEW VEHICLE MANUFACTURERS SHALL FURTHER  MAIN-
 TAIN  A  RECORD OF ALL INCENTIVES PAID TO ANY FRANCHISEE ATTRIBUTABLE TO
 ANY SALE OR LEASE THAT  HAS  BEEN  ARRANGED,  ASSISTED,  FACILITATED  OR
 EFFECTED  BY  A  NEW  AUTOMOBILE  BROKER  BUSINESS.  FOR SALES OR LEASES
 ARRANGED, ASSISTED, FACILITATED OR EFFECTED BY ANY NEW AUTOMOBILE BROKER
 BUSINESS OPERATING OR BASED IN A PARTICULAR RELEVANT MARKET AREA, A  NEW
 VEHICLE  MANUFACTURER  SHALL  FURNISH A RECORD OF INCENTIVES PAID TO ANY
 FRANCHISEE ATTRIBUTABLE TO ANY SUCH SALES OR LEASES  TO  THE  FRANCHISEE
 OPERATING OR BASED WITHIN ANY SUCH RELEVANT MARKET AREA.
   §  16. This act shall take effect immediately; provided that all auto-
 mobile brokers registered on the effective date of this act  shall  have
 ninety days to come into compliance with the provisions of this act.

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4364--C
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                              March 11, 2019
                                ___________
 
 Introduced  by  Sens. THOMAS, BROOKS, COMRIE, GAUGHRAN, GOUNARDES, JACK-
   SON, KAMINSKY, KAPLAN, LANZA, LIU, MAY, METZGER, MYRIE, PERSAUD, SALA-
   ZAR, SAVINO, SEPULVEDA, SKOUFIS, STAVISKY -- read  twice  and  ordered
   printed,  and  when printed to be committed to the Committee on Trans-
   portation -- committee discharged, bill amended, ordered reprinted  as
   amended  and  recommitted to said committee -- reported favorably from
   said committee and committed to the Committee on Finance --  committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to  said  committee  --  committee  discharged,  bill amended, ordered
   reprinted as amended and recommitted to said committee
 
 AN ACT to amend the vehicle and traffic law  and  the  general  business
   law, in relation to designating new automotive broker businesses
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph a of subdivision 1 of section 415 of the  vehicle
 and  traffic  law,  as  amended  by  chapter 554 of the laws of 2015, is
 amended and a new paragraph n is added to read as follows:
   a. "Dealer" means a person engaged in the business of buying,  selling
 or dealing in motor vehicles, motorcycles or trailers, other than mobile
 homes  or  manufactured  homes, at retail or wholesale; except, however,
 trailers with an unladen weight of less than one  thousand  pounds.  For
 the  purposes  of  this  section, a "mobile home" or "manufactured home"
 means a mobile home or manufactured  home  as  defined  in  section  one
 hundred  twenty-two-c  of  this chapter. Any person who sells, or offers
 for sale OR LEASE more than five motor vehicles, motorcycles or trailers
 in any calendar year or who displays or permits the display of three  or
 more motor vehicles, motorcycles or trailers for sale at any one time or
 within  any  one calendar month upon premises owned or controlled by him
 or her, if such vehicles were purchased, acquired or otherwise  obtained
 by  such person for the purpose of resale, will be regarded as a dealer.
 FOR THE PURPOSES OF THIS SECTION,  "OFFERS  FOR  SALE  OR  LEASE"  SHALL
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD08916-16-9

 S. 4364--C                          2
 
 INCLUDE,  BUT  NOT BE LIMITED TO, THE ACT OF DRAWING THE PUBLIC'S ATTEN-
 TION TO, OR THE PRESENTATION OR DISPLAY OF ANY MOTOR VEHICLE,  INCLUDING
 THE  POSTING  OF  IMAGES  OF ANY SUCH VEHICLE, TOGETHER WITH AN OFFER TO
 PROVIDE,  THE  PROVISION  OF,  OR  A REPRESENTATION THAT SUCH PERSON MAY
 PROVIDE A SERVICE OF ARRANGING, ASSISTING, FACILITATING OR EFFECTING THE
 LEASE OF SUCH NEW MOTOR VEHICLE, EXCEPT THIS MEANING SHALL NOT APPLY  TO
 ANY  ACTIVITY  OF  A COOPERATIVE OR OTHER ADVERTISING PROGRAM OR FUND AS
 DESCRIBED IN ANY FRANCHISE, AS SUCH TERM IS DEFINED BY  SUBDIVISION  SIX
 OF  SECTION  FOUR  HUNDRED  SIXTY-TWO OF THIS TITLE. Except as otherwise
 provided in subdivisions three, five, six-b, and seven of this  section,
 the  term "dealer" shall include a "new motor vehicle dealer" as defined
 by paragraph f of this subdivision and a "qualified dealer"  as  defined
 in paragraph g of this subdivision.
   N. "NEW AUTOMOBILE BROKER BUSINESS" SHALL HAVE THE SAME MEANING AS SET
 FORTH  IN  SUBDIVISION  FOUR  OF SECTION SEVEN HUNDRED THIRTY-SIX OF THE
 GENERAL BUSINESS LAW.
   § 2. Section 736 of the general business law is amended by adding  two
 new subdivisions 4 and 5 to read as follows:
   4.  "NEW  AUTOMOBILE BROKER BUSINESS" MEANS ANY PERSON WHO, FOR A FEE,
 COMMISSION OR OTHER VALUABLE CONSIDERATION, REGARDLESS OF  WHETHER  SUCH
 FEE,  COMMISSION OR CONSIDERATION IS PAID DIRECTLY BY A CONSUMER, OFFERS
 TO PROVIDE, PROVIDES OR REPRESENTS THAT HE OR SHE WILL PROVIDE A SERVICE
 OF PURCHASING,  ARRANGING,  ASSISTING,  FACILITATING  OR  EFFECTING  THE
 PURCHASE OR LEASE OF A PREVIOUSLY UNREGISTERED AUTOMOBILE; THROUGH A NEW
 MOTOR  VEHICLE DEALER, AS AGENT, BROKER, OR INTERMEDIARY FOR A CONSUMER.
 "NEW AUTOMOBILE BROKER BUSINESS" DOES NOT INCLUDE ANY PERSON  REGISTERED
 AS A NEW VEHICLE DEALER FOR THE NEW AUTOMOBILE BRAND OR BRANDS FOR WHICH
 SUCH  SERVICES  ARE PROVIDED, PURSUANT TO ARTICLE SIXTEEN OF THE VEHICLE
 AND TRAFFIC LAW NOR ANY BONA FIDE EMPLOYEE OF SUCH A  REGISTERED  DEALER
 WHILE ACTING FOR SUCH DEALER, NOR ANY MOTOR VEHICLE FRANCHISOR, MANUFAC-
 TURER  OR  DISTRIBUTOR  FOR THE NEW AUTOMOBILE BRAND OR BRANDS FOR WHICH
 SUCH SERVICES ARE PROVIDED.
   5. NOTWITHSTANDING ANY OTHER SUBDIVISION OF THIS  SECTION,  THE  TERMS
 "AUTOMOBILE  BROKER BUSINESS" AND "NEW AUTOMOBILE BROKER BUSINESS" SHALL
 NOT INCLUDE ANY ENTITY THAT PROVIDES A SERVICE OF PURCHASING, ARRANGING,
 ASSISTING, FACILITATING, OR EFFECTING THE PURCHASE OR LEASE OF A  PREVI-
 OUSLY UNREGISTERED AUTOMOBILE AS AN AGENT, BROKER, OR INTERMEDIARY FOR A
 CONSUMER,  IF  THAT  ENTITY  FACILITATES  THE PURCHASE OR LEASE OF A NEW
 MOTOR VEHICLE IN THIS STATE FROM A NEW  MOTOR  VEHICLE  DEALER  ONLY  BY
 MEANS  OF AN ONLINE NEW AUTOMOBILE REFERRAL SERVICE. FOR THE PURPOSES OF
 THIS SUBDIVISION, "ONLINE NEW  AUTOMOBILE  REFERRAL  SERVICE"  MEANS  AN
 ORGANIZATION,  INCLUDING,  BUT  NOT  LIMITED  TO  A CORPORATION, LIMITED
 LIABILITY COMPANY, PARTNERSHIP, SOLE PROPRIETOR, OR  ANY  OTHER  ENTITY,
 THAT:
   (A) OPERATES AN INTERACTIVE WEBSITE AND/OR SMARTPHONE APPLICATION THAT
 FACILITATES THE PROVISION OF SERVICES OR CONSUMMATION OF TRANSACTIONS BY
 MARKETPLACE  ENTITIES  AND PERSONS SEEKING SUCH SERVICES OR TRANSACTIONS
 ON A DIGITAL PLATFORM SPECIFICALLY DESIGNED AND BUILT FOR  ONLINE  MOTOR
 VEHICLE LEASE TRANSACTIONS;
   (B)  LISTS MOTOR VEHICLES PROVIDED BY MULTIPLE NEW MOTOR VEHICLE DEAL-
 ERS IN THIS STATE;
   (C) PROVIDES SERVICES, OR THE TRANSACTIONS FACILITATED THEREBY,  ON  A
 MULTI-STATE  BASIS  PURSUANT TO WRITTEN CONTRACTS WITH NEW MOTOR VEHICLE
 DEALERS WHICH ESTABLISH A PREDETERMINED PRICE FOR  THE  SERVICES  TO  BE
 RENDERED; AND

 S. 4364--C                          3
 
   (D)  INVOLVES  NO IN-PERSON MEETING AS BETWEEN A PROSPECTIVE LESSEE OR
 PURCHASER AND THE OPERATOR OF SUCH INTERACTIVE WEBSITE AND/OR SMARTPHONE
 APPLICATION.
   § 3. Subdivision 3-a and paragraph b-3 of subdivision 5 of section 415
 of  the  vehicle and traffic law, as added by chapter 477 of the laws of
 2017, are amended to read as follows:
   3-a. Automobile  broker  business  [registration]  OR  NEW  AUTOMOBILE
 BROKER  BUSINESS.    A.  No person shall engage in the automobile broker
 business, THE NEW AUTOMOBILE BROKER BUSINESS or represent  or  advertise
 that  he or she is engaged or intends to engage in the automobile broker
 business OR NEW AUTOMOBILE BROKER BUSINESS in this state,  unless  there
 shall have been issued to him or her a certificate of registration as an
 automobile  broker  business  OR  NEW AUTOMOBILE BROKER BUSINESS, AS THE
 CASE MAY BE, by the commissioner  under  this  section  pursuant  to  an
 application  for  registration submitted pursuant to subdivision five of
 this section.
   B. THE COMMISSIONER SHALL NOT ISSUE ANY  CERTIFICATE  OF  REGISTRATION
 AUTHORIZED  BY  THIS  SUBDIVISION TO ANY DEALER, FRANCHISEE, FRANCHISOR,
 MANUFACTURER, DISTRIBUTOR, DISTRIBUTOR BRANCH OR FACTORY BRANCH, AS SUCH
 TERMS ARE DEFINED IN SECTION FOUR HUNDRED SIXTY-TWO OF THIS TITLE, OR TO
 ANY SUBSIDIARY, AFFILIATE OR CONTROLLED ENTITY THEREOF.
   C. AS A CONDITION OF ANY CERTIFICATE OF REGISTRATION  ISSUED  PURSUANT
 TO  THIS  SUBDIVISION,  A NEW AUTOMOBILE BROKER BUSINESS SHALL HAVE, AND
 CONTINUOUSLY MAINTAIN, A PLACE OF BUSINESS IN THIS STATE  FOR  WHICH  IT
 SHALL  KEEP AND MAINTAIN EVIDENCE THAT ALL NECESSARY APPROVALS, LICENSES
 AND/OR PERMITS HAVE BEEN OBTAINED FROM ALL  LOCAL  GOVERNING  BODIES  TO
 OPERATE SUCH PLACE OF BUSINESS WITH CUSTOMER OR CLIENT TRAFFIC.
   D.  EVERY  REGISTERED  NEW  AUTOMOBILE  BROKER  SHALL  PROMINENTLY AND
 CONSPICUOUSLY POST, IN SUCH A MANNER THAT IT IS LIKELY TO BE  NOTICEABLE
 TO  ANYONE  ENTERING  ITS PREMISES, ITS OFFICIAL BUSINESS CERTIFICATE OF
 REGISTRATION AND A SIGN, WHICH SIGN SHALL CLEARLY STATE:
   "(NAME OF REGISTERED NEW AUTOMOBILE BROKER) IS NOT  A  FRANCHISED  NEW
 MOTOR  VEHICLE  DEALERSHIP.  WE  ARE  NOT  AUTHORIZED  OR  APPROVED BY A
 MANUFACTURER OR DISTRIBUTOR TO SELL A MOTOR VEHICLE OR PERFORM RECALL OR
 ORIGINAL FACTORY WARRANTY WORK. IF YOU ORDER A SEARCH FOR  A  NEW  MOTOR
 VEHICLE  FROM  THIS  BROKER,  WE MUST MAKE A BONA FIDE EFFORT TO SOLICIT
 BIDS FROM AT LEAST THREE UNAFFILIATED NEW MOTOR VEHICLE  DEALERS  FOR  A
 NEW MOTOR VEHICLE ON YOUR BEHALF, INCLUDING FROM YOUR LOCAL DEALER."
   E.  A  NEW  AUTOMOBILE  BROKER  BUSINESS  SHALL  NOT PROVIDE, OFFER TO
 PROVIDE, OR REPRESENT THAT HE OR SHE WILL PROVIDE A SERVICE OF  PURCHAS-
 ING,  ARRANGING,  ASSISTING,  FACILITATING  OR EFFECTING THE PURCHASE OR
 LEASE OF A PREVIOUSLY UNREGISTERED AUTOMOBILE WITH A DEALER  LOCATED  IN
 ANY  OTHER  STATE  UNLESS  SUCH  STATE AFFORDS LAWFUL MEANS FOR THE SAME
 BUSINESS ACTIVITY, SUCH STANDARDS AND  REQUIREMENTS  ARE  EQUIVALENT  TO
 THOSE CONTAINED IN THIS ARTICLE AND ARTICLE THIRTY-FIVE-B OF THE GENERAL
 BUSINESS  LAW, THE NEW AUTOMOBILE BROKER BUSINESS IS REGISTERED, PERMIT-
 TED OR LICENSED TO PERFORM SUCH BUSINESS ACTIVITY IN  SUCH  OTHER  STATE
 AND  IS OTHERWISE IN GOOD STANDING WITH EACH GOVERNMENTAL AGENCY OF SUCH
 OTHER STATE RESPONSIBLE  FOR  REGULATING  SUCH  BUSINESS  ACTIVITY.  THE
 COMMISSIONER  OF  MOTOR  VEHICLES  SHALL  BE  EMPOWERED TO DETERMINE THE
 SUBSTANTIAL EQUIVALENCE OF SUCH  OTHER  STATE  LAWS  PERTAINING  TO  THE
 REGISTRATION, PERMITTING OR LICENSURE OF SUCH BUSINESSES.
   F.  NOTHING IN THIS SUBDIVISION SHALL BE CONSTRUED TO PROHIBIT A FRAN-
 CHISOR, MANUFACTURER, OR DISTRIBUTOR FROM SPONSORING ACTIVITIES INTENDED
 TO GENERATE LEADS TOWARD THE SALE OR LEASE OF A NEW MOTOR VEHICLE  BY  A
 FRANCHISEE.

 S. 4364--C                          4
 
   b-3.  In  the case of an application for registration as an automobile
 broker business OR NEW AUTOMOBILE BROKER BUSINESS, the name and  address
 of  the surety company which will issue the bond required by subdivision
 one of section seven hundred forty-a of the general business law  AND  A
 STATEMENT  INDICATING ANY INTEREST IN THE APPLICANT'S BUSINESS ENTITY BY
 A PERSON OR ENTITY DESCRIBED IN PARAGRAPH  (F)  OF  SUBDIVISION  ONE  OR
 PARAGRAPH  F  OF SUBDIVISION SEVEN OF THIS SECTION. If the bond is to be
 issued by an authorized agent of the  surety  company  licensed  by  the
 state,  then  the name and address of that agent may be provided in lieu
 of the information concerning the surety company.
   § 4. Subdivision 1 of section 736-a of the general  business  law,  as
 added  by chapter 477 of the laws of 2017, is amended and a new subdivi-
 sion 3 is added to read as follows:
   1. (A) No person shall engage in  business  as  an  automobile  broker
 business  OR  AS  A  NEW  AUTOMOBILE  BROKER BUSINESS, as SUCH TERMS ARE
 defined in section seven hundred thirty-six  of  this  article,  without
 first having been issued a certificate of registration for an automobile
 broker  business OR NEW AUTOMOBILE BROKER BUSINESS pursuant to paragraph
 c of subdivision seven of section four hundred fifteen  of  the  vehicle
 and  traffic  law.  A  CERTIFICATE  OF REGISTRATION FOR A NEW AUTOMOBILE
 BROKER BUSINESS IS VALID FOR A PERIOD OF TWO YEARS.
   (B) NO NEW  AUTOMOBILE  BROKER  BUSINESS  SHALL  REPRESENT  OR  ACCEPT
 PAYMENT FROM, EITHER DIRECTLY OR INDIRECTLY, A FRANCHISEE, DEALER, FRAN-
 CHISOR,  MANUFACTURER  AND/OR  DISTRIBUTOR, AS SUCH TERMS ARE DEFINED IN
 SECTIONS FOUR HUNDRED FIFTEEN AND FOUR HUNDRED SIXTY-TWO OF THE  VEHICLE
 AND TRAFFIC LAW.
   (C) NO NEW AUTOMOBILE BROKER BUSINESS SHALL PROVIDE, OFFER TO PROVIDE,
 OR  REPRESENT  THAT  HE  OR  SHE  WILL  PROVIDE A SERVICE OF PURCHASING,
 ARRANGING, ASSISTING, FACILITATING OR EFFECTING THE PURCHASE OR LEASE OF
 A PREVIOUSLY UNREGISTERED AUTOMOBILE WITH A DEALER LOCATED IN ANY  OTHER
 STATE  UNLESS  SUCH  STATE  AFFORDS  LAWFUL  MEANS FOR THE SAME BUSINESS
 ACTIVITY, SUCH STANDARDS AND REQUIREMENTS SET FORTH IN THE LAWS OF  SUCH
 OTHER  STATE  ARE EQUIVALENT TO THOSE CONTAINED IN THIS ARTICLE, THE NEW
 AUTOMOBILE BROKER BUSINESS HAS BEEN REGISTERED, PERMITTED OR LICENSED TO
 PERFORM SUCH BUSINESS ACTIVITY IN SUCH OTHER STATE AND IS  OTHERWISE  IN
 GOOD STANDING WITH EACH AGENCY OF SUCH OTHER STATE RESPONSIBLE FOR REGU-
 LATING  SUCH BUSINESS ACTIVITY. THE COMMISSIONER OF MOTOR VEHICLES SHALL
 BE EMPOWERED TO DETERMINE THE  SUBSTANTIAL  EQUIVALENCE  OF  SUCH  OTHER
 STATE  LAWS  PERTAINING  TO  THE  REGULATION  OF SUCH BUSINESS ACTIVITY,
 INCLUDING CONSUMER PROTECTIONS IN ANY SUCH LAW.
   3. THE COMMISSIONER OF MOTOR VEHICLES SHALL MAKE NECESSARY  RULES  AND
 REGULATIONS  AS  MAY  BE  APPROPRIATE  FOR THE PROPER ENFORCEMENT OF THE
 PROVISIONS OF THIS SECTION.
   § 5. The general business law is amended by adding a new section 741-c
 to read as follows:
   § 741-C. PROHIBITIONS RELATED TO PRIVATE INFORMATION. NO PERSON REGIS-
 TERED UNDER THIS ARTICLE SHALL REQUEST, RECEIVE, ACCEPT,  HANDLE,  STORE
 OR  TRANSMIT  THE  PRIVATE INFORMATION, AS SUCH TERM IS DEFINED IN PARA-
 GRAPH (B) OF SUBDIVISION ONE OF SECTION EIGHT HUNDRED NINETY-NINE-AA  OF
 THIS CHAPTER, OF ANY CONSUMER.
   §  6. Section 737 of the general business law, as added by chapter 616
 of the laws of 1988, is amended to read as follows:
   § 737. Advance fees prohibited. No automobile broker business  OR  NEW
 AUTOMOBILE  BROKER  BUSINESS  shall  solicit,  receive or collect from a
 consumer any fee, or commission, in advance of the performance of  those

 S. 4364--C                          5
 
 services  specified in the contract as required by section seven hundred
 thirty-eight of this article.
   §  7.  The  opening  paragraph  of subdivision 1 of section 738 of the
 general business law, as amended by chapter 28 of the laws of  2018,  is
 amended to read as follows:
   Every  contract  between a consumer and an automobile broker business,
 WHICH FOR THE PURPOSES OF THIS  SECTION  SHALL  INCLUDE  NEW  AUTOMOBILE
 BROKER  BUSINESSES,  for the purchase of an automobile shall be in writ-
 ing, shall be dated, shall contain the street address of the  automobile
 broker business and the consumer and shall be signed by the consumer and
 by  the automobile broker business. Every contract shall comply with the
 requirements set forth in this section and contain the following:
   § 8. Section 740 of the general business law, as added by chapter  616
 of the laws of 1988, is amended to read as follows:
   §  740.  Escrow  required  for  advance payments. All monies paid by a
 consumer to an automobile broker business OR  A  NEW  AUTOMOBILE  BROKER
 BUSINESS  in connection with a transaction covered by this article shall
 be trust funds in the possession of such automobile broker  business  OR
 NEW  AUTOMOBILE BROKER BUSINESS and shall be deposited by it within five
 days after receipt thereof, in an  account  in  a  banking  organization
 within  the  state.  The  automobile  broker  business OR NEW AUTOMOBILE
 BROKER BUSINESS shall thereupon notify in writing the  consumer,  giving
 the name and address of the banking organization and the amount deposit-
 ed.  The  monies  shall  be  held  on deposit until fully applied to the
 contract price at the time the automobile is delivered to the  consumer,
 unless sooner repaid in accordance with the provisions of this article.
   §  9.  Section  740-a of the general business law, as added by chapter
 579 of the laws of 2011 and subdivision 1 as amended by chapter  477  of
 the laws of 2017, is amended to read as follows:
   § 740-a. Automobile broker business AND NEW AUTOMOBILE BROKER BUSINESS
 surety  bond.  1. Automobile broker businesses shall obtain and continue
 in effect a surety bond in an amount of  one  hundred  thousand  dollars
 executed  by  a  surety  company  authorized to transact business in the
 state by the department of  financial  services  of  the  state  or  its
 successor.    NEW AUTOMOBILE BROKER BUSINESSES SHALL OBTAIN AND CONTINUE
 IN EFFECT A SURETY BOND IN AN  AMOUNT  OF  TWO  HUNDRED  FIFTY  THOUSAND
 DOLLARS  EXECUTED BY A SURETY COMPANY AUTHORIZED TO TRANSACT BUSINESS IN
 THE STATE BY THE DEPARTMENT OF FINANCIAL SERVICES OF THE  STATE  OR  ITS
 SUCCESSOR.  The  bonds  shall be approved as to form by the secretary of
 state and shall be conditioned on the automobile broker business' OR NEW
 AUTOMOBILE BROKER BUSINESS' payment of all valid bank drafts,  including
 checks,  drawn for the purchase of motor vehicles and safekeeping of all
 customer deposits related to the sale of a  motor  vehicle  between  the
 time  of receipt of such customer deposit and the transfer of good title
 to the vehicle to the customer.
   2. Recovery against a bond may be made  by  a  person,  including  the
 state,  who obtains a judgment against the automobile broker business OR
 NEW AUTOMOBILE BROKER BUSINESS for an act or omission on which the  bond
 is  conditioned  if  the act or omission occurred during the term of the
 bond. The total liability imposed on the surety under this  section  for
 all  breaches of the bond condition is limited to the face amount of the
 bond. Such liability may include, but is not limited to, the  amount  of
 the  valid bank drafts, including checks, drawn by the automobile broker
 business OR NEW AUTOMOBILE BROKER BUSINESS for  the  purchase  of  motor
 vehicles.  In  no  event  shall the surety on a bond be liable for total
 claims in excess of the bond amount, regardless of the number or  nature

 S. 4364--C                          6
 
 of claims made against the bond or the number of years the bond remained
 in force.
   3.  Any  surety  issuing  a bond pursuant to this subdivision shall be
 required to provide sixty days' notice to the secretary of  state  prior
 to the effective date of cancellation of the bond.
   § 10. Section 741 of the general business law, as added by chapter 616
 of the laws of 1988, is amended to read as follows:
   §  741. Deceptive acts AND FRAUDS prohibited. 1. It is hereby declared
 to be a deceptive trade practice and unlawful for an  automobile  broker
 business  OR  NEW AUTOMOBILE BROKER BUSINESS to misrepresent directly or
 indirectly in its advertising, promotional  materials,  sales  presenta-
 tion, or in any manner:
   [1.] (A) The nature of the services to be performed AND IN THE CASE OF
 A  NEW  AUTOMOBILE BROKER THAT A THIRD PARTY WILL BE PAYING FOR ANY SUCH
 SERVICES;
   [2.] (B) The time within which the services will be performed;
   [3.] (C) The cost of the services to be performed; [and
   4.] (D) The ability of the automobile broker business OR  NEW  AUTOMO-
 BILE BROKER BUSINESS to perform the services; AND
   (E) THAT THE AUTOMOBILE BROKER BUSINESS OR NEW AUTOMOBILE BROKER BUSI-
 NESS  IS AFFILIATED WITH ANY AUTOMOBILE MANUFACTURER AND/OR DISTRIBUTOR,
 INCLUDING THE USE OF ANY TRADEMARKS OR COPYRIGHTED MATERIAL WITHOUT  THE
 EXPRESS, WRITTEN CONSENT OF THE OWNER OF SUCH MATERIAL.
   2. IT SHALL BE A FRAUDULENT BUSINESS PRACTICE FOR AN AUTOMOBILE BROKER
 BUSINESS  OR  NEW  AUTOMOBILE BROKER BUSINESS TO REFUSE TO DISCLOSE TO A
 MOTOR VEHICLE DEALER OR NEW MOTOR VEHICLE DEALER THE REGISTRATION NUMBER
 PROVIDED BY THE DEPARTMENT OF MOTOR VEHICLES PURSUANT  TO  SECTION  FOUR
 HUNDRED  FIFTEEN  OF  THE VEHICLE AND TRAFFIC LAW. FURTHERMORE, IT SHALL
 ALSO BE A FRAUDULENT BUSINESS PRACTICE FOR AN AUTOMOBILE BROKER BUSINESS
 OR NEW AUTOMOBILE BROKER BUSINESS TO MAKE  ANY  MISREPRESENTATION  TO  A
 MOTOR VEHICLE DEALER OR NEW MOTOR VEHICLE DEALER REGARDING THE ELIGIBIL-
 ITY  OF  ANY  CONSUMER  FOR  ANY  DISCOUNTS,  REDUCTIONS  OR ANY BENEFIT
 PROGRAMS REGARDING THE SALE OR LEASE OF A MOTOR VEHICLE.
   3. IT SHALL BE A FRAUDULENT BUSINESS PRACTICE  FOR  A  NEW  AUTOMOBILE
 BROKER BUSINESS TO FAIL TO MAKE A BONA FIDE ATTEMPT TO OBTAIN A QUOTE OR
 OFFER  FROM  AT LEAST THREE UNAFFILIATED DEALERS ON BEHALF OF A PROSPEC-
 TIVE BUYER OR LESSEE FOR A VEHICLE  MEETING  THE  PROSPECTIVE  BUYER  OR
 LESSEE'S  SPECIFICATIONS, INCLUDING THE NEW MOTOR VEHICLE DEALER LOCATED
 IN CLOSEST PROXIMITY  TO  THE  ADDRESS  OF  SUCH  PROSPECTIVE  BUYER  OR
 LESSEE'S  HOME  OR,  IN THE CASE OF ANY ENTITY, ITS PLACE OF DOING BUSI-
 NESS.
   4. IT SHALL BE A FRAUDULENT BUSINESS PRACTICE  FOR  A  NEW  AUTOMOBILE
 BROKER  BUSINESS TO FAIL TO ACT FOR THE BENEFIT OF THE PROSPECTIVE BUYER
 OR LESSEE, INCLUDING BY FAILING TO MAKE REASONABLE EFFORTS TO OBTAIN THE
 LOWEST POSSIBLE PRICE, DOWN  PAYMENT,  NUMBER  OF  PAYMENTS,  AMOUNT  OF
 PAYMENTS,  FINANCE CHARGES, ANNUAL PERCENTAGE RATE AND/OR FEES FOR A NEW
 MOTOR VEHICLE THAT MEETS THE SPECIFICATIONS OF SUCH PROSPECTIVE BUYER OR
 LESSEE.
   § 11. Section 741-a of the general business law, as amended by chapter
 477 of the laws of 2017, is amended to read as follows:
   § 741-a. Advertising. Automobile broker businesses AND NEW  AUTOMOBILE
 BROKER BUSINESSES shall clearly and conspicuously disclose the following
 in all advertisements in any medium, and in any print advertisement such
 disclosures  shall  not appear in any footnotes and shall be situated in
 the top half of any such advertisement in an easily readable typeface:

 S. 4364--C                          7
 
   (a) That the automobile broker business OR NEW AUTOMOBILE BROKER BUSI-
 NESS is not a registered new motor vehicle dealer but  is  a  registered
 automobile  broker business OR NEW AUTOMOBILE BROKER BUSINESS as defined
 in section four hundred fifteen of the vehicle and traffic law;
   (b)  The  registration number issued to the automobile broker business
 OR NEW AUTOMOBILE BROKER  BUSINESS  pursuant  to  section  four  hundred
 fifteen of the vehicle and traffic law;
   (c)  Whether any fees may be imposed by the automobile broker business
 OR NEW AUTOMOBILE BROKER BUSINESS for services rendered. Details of such
 compensation shall be provided by the automobile broker business OR  NEW
 AUTOMOBILE BROKER BUSINESS upon request by the consumer; and
   (d)  That  no warranty repair services will be provided by the automo-
 bile broker business OR NEW AUTOMOBILE BROKER BUSINESS.
   § 12. Section 741-b of the general business law, as added  by  chapter
 28 of the laws of 2018, is amended to read as follows:
   §  741-b.  [Disclosure] DISCLOSURES. 1.  An automobile broker business
 OR NEW AUTOMOBILE BROKER BUSINESS shall provide a disclosure at the time
 such automobile broker business OR NEW AUTOMOBILE BROKER BUSINESS  takes
 an  order  to  search  for  a  leased  OR  PURCHASED vehicle meeting the
 prospective BUYER OR  lessee's  specifications.  Such  disclosure  shall
 provide  the amount of any fees, commissions or other valuable consider-
 ation the automobile broker business OR NEW AUTOMOBILE  BROKER  BUSINESS
 expects  to  receive  FOR  ANY ASSISTANCE THE AUTOMOBILE BROKER BUSINESS
 PROVIDES IN EFFECTING THE LEASE OR PURCHASE TRANSACTION,  INCLUDING  ANY
 REASONABLY  FORESEEABLE FEES OR CHARGES, INCLUDING DELIVERY FEES. IN THE
 CASE OF AN AUTOMOBILE BROKER BUSINESS THIS SHALL INCLUDE, if known,  ANY
 PAYMENTS  from  a  dealer,  lessor or any other person or entity for any
 assistance the automobile broker  business  provides  in  effecting  the
 lease  OR  PURCHASE transaction. If the amount of any such fees, commis-
 sions or other valuable consideration  the  automobile  broker  business
 expects  to  receive  is unknown at the time of the required disclosure,
 the automobile broker business shall disclose:  (a)  whether  it  has  a
 contract  with  any dealer, lessor or any other person or entity for the
 provision of assistance in effecting a lease transaction; and (b) wheth-
 er the automobile broker business may  be  compensated  by  the  dealer,
 lessor  or  any  other  person or entity for any assistance in effecting
 such lease transaction.  NOTHING IN THIS SUBDIVISION SHALL BE  CONSTRUED
 TO PERMIT THE PAYMENT OF ANY FEES, COMMISSIONS OR OTHER VALUABLE CONSID-
 ERATION TO A NEW AUTOMOBILE BROKER BUSINESS BY ANY DEALER.
   2.  A  NEW  AUTOMOBILE  BROKER  BUSINESS  SHALL  PROVIDE AN ADDITIONAL
 DISCLOSURE AT THE TIME SUCH NEW  AUTOMOBILE  BROKER  BUSINESS  TAKES  AN
 ORDER  TO SEARCH FOR A VEHICLE MEETING THE PROSPECTIVE BUYER OR LESSEE'S
 SPECIFICATIONS. SUCH ADDITIONAL DISCLOSURE SHALL STATE THAT  THE  BROKER
 SHALL  MAKE  A BONA FIDE ATTEMPT TO OBTAIN A BID, QUOTE OR OFFER FROM AT
 LEAST THREE UNAFFILIATED DEALERS ON BEHALF OF THE PROSPECTIVE  BUYER  OR
 LESSEE  FOR A VEHICLE MEETING THE PROSPECTIVE BUYER OR LESSEE'S SPECIFI-
 CATIONS, INCLUDING FROM THE NEW MOTOR VEHICLE DEALER OF SUCH  LINE  MAKE
 LOCATED  CLOSEST  TO  THE  HOME OR PLACE OF BUSINESS OF SUCH PROSPECTIVE
 BUYER AND THAT THE NEW AUTOMOBILE BROKER HAS A DUTY TO ACT FOR THE BENE-
 FIT OF THE PROSPECTIVE BUYER OR LESSEE, INCLUDING BY  MAKING  REASONABLE
 EFFORTS  TO  OBTAIN  THE  LOWEST POSSIBLE PRICE, DOWN PAYMENT, NUMBER OF
 PAYMENTS, AMOUNT OF PAYMENTS, FINANCE CHARGES,  ANNUAL  PERCENTAGE  RATE
 AND/OR FEES.
   3.  EACH  DISCLOSURE REQUIRED BY THIS SECTION SHALL BE ACKNOWLEDGED IN
 WRITING BY EACH RESPECTIVE PROSPECTIVE BUYER OR LESSEE.

 S. 4364--C                          8

   § 13. Section 742 of the general business law, as added by chapter 616
 of the laws of 1988, is amended to read as follows:
   §  742.  Action  for  recovery  of  damages  by consumer. Any consumer
 injured by a violation of this article or by the breach by an automobile
 broker business OR NEW AUTOMOBILE BROKER BUSINESS of  a  contract  which
 has  been  entered into pursuant to section seven hundred thirty-nine of
 this article may bring an action for recovery of damages. Judgment shall
 be entered in favor of a consumer in an amount not to exceed three times
 the actual damages, but in no case less than  the  amount  paid  by  the
 buyer  to  the automobile broker business OR NEW AUTOMOBILE BROKER BUSI-
 NESS.  The court may award reasonable attorney's fees  to  a  prevailing
 plaintiff.
   §  14.  Section 743 of the general business law, as amended by chapter
 372 of the laws of 2016, is amended to read as follows:
   § 743. Enforcement [by]. 1. BY attorney general. In  addition  to  the
 other  remedies  provided,  whenever  there shall be a violation of this
 article, 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 juris-
 diction 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 violations; and if it shall appear to the  satisfac-
 tion  of  the court or justice that the defendant has, in fact, violated
 this article, 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  restitu-
 tion.  Whenever the court shall determine that a violation of this arti-
 cle has occurred, the court shall impose a civil  penalty  of  not  less
 than  one  thousand dollars and not more than three thousand dollars for
 each violation. IN THE CASE OF AN AUTOMOBILE BROKER, NOT LESS  THAN  ONE
 THOUSAND  DOLLARS  AND  NOT  MORE  THAN  THREE THOUSAND DOLLARS FOR EACH
 VIOLATION; AND IN THE CASE OF A NEW AUTOMOBILE  BROKER,  NOT  LESS  THAN
 FOUR  THOUSAND  DOLLARS  AND NOT MORE THAN TEN THOUSAND DOLLARS FOR EACH
 VIOLATION.  In connection with any such proposed application, the attor-
 ney general is authorized to take proof and make a determination of  the
 relevant facts and to issue subpoenas in accordance with the civil prac-
 tice law and rules.
   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.
   2. BY LOCAL AUTHORITIES. A. MUNICIPALITIES MAY, PURSUANT TO LOCAL LAW,
 ACT  UPON  THE  BUSINESS  ACTIVITY  THAT IS THE SUBJECT OF THIS ARTICLE,
 PROVIDED THAT NO  LOCAL  GOVERNMENT  MAY  DIMINISH  THE  PROTECTIONS  OR
 REQUIREMENTS OF THIS ARTICLE OR PREVENT ENFORCEMENT OF ITS PROVISIONS BY
 APPROPRIATE STATE OFFICIALS.
   B.  THE  PROVISIONS OF THIS ARTICLE MAY BE ENFORCED IN THE SAME MANNER
 AS SET FORTH IN SUBDIVISION ONE OF THIS SECTION BY  THE  DIRECTOR  OF  A
 MUNICIPAL CONSUMER AFFAIRS OFFICE OR A BUSINESS INTEGRITY COMMISSION, OR
 BY THE TOWN ATTORNEY, CITY CORPORATION COUNSEL, OR OTHER LAWFULLY DESIG-
 NATED ENFORCEMENT OFFICER OF A MUNICIPALITY OR LOCAL GOVERNMENT, AND ALL
 MONIES  COLLECTED  THEREUNDER  SHALL BE RETAINED BY SUCH MUNICIPALITY OR
 LOCAL GOVERNMENT, PROVIDED THAT NO LOCAL GOVERNMENT MAY PREVENT ENFORCE-
 MENT OF ITS PROVISIONS BY APPROPRIATE STATE OFFICIALS.

 S. 4364--C                          9
 
   3. BY PRIVATE PARTY. ANY PERSONS INJURED  BY  ANY  VIOLATION  OF  THIS
 ARTICLE MAY BRING AN ACTION IN HIS OR HER OWN NAME AGAINST AN AUTOMOBILE
 BROKER  BUSINESS  OR  A  NEW  AUTOMOBILE  BROKER BUSINESS TO ENJOIN SUCH
 UNLAWFUL ACT OR PRACTICE, AN ACTION TO RECOVER HIS OR HER ACTUAL DAMAGES
 AND STATUTORY DAMAGES OF FOUR THOUSAND DOLLARS, OR BOTH SUCH ACTIONS. IN
 THE CASE OF A NEW MOTOR VEHICLE DEALER, INJURY SHALL INCLUDE DEPRIVING A
 NEW  MOTOR  VEHICLE  DEALER LOCATED CLOSEST TO A LESSEE OR PURCHASER THE
 OPPORTUNITY TO BID ON SUCH LEASE OR PURCHASE AS ENTITLED BY  THIS  ARTI-
 CLE.  DAMAGES  SHALL  INCLUDE  THE VALUE OF INCENTIVE PAYMENTS, BONUSES,
 HOLDBACKS OR SIMILAR PAYMENTS THAT WOULD HAVE BEEN REALIZED HAD A LESSEE
 OR PURCHASER PURCHASED OR LEASED SUCH VEHICLE FROM THE NEW MOTOR VEHICLE
 DEALER IN CLOSEST PROXIMITY TO SUCH LESSEE  OR  PURCHASER  BUT  FOR  THE
 ACTIONS  OF A PERSON WHO KNOWINGLY AIDED THE VIOLATION OF THE PROVISIONS
 OF THIS ARTICLE. NOTHING IN THIS SECTION  SHALL  REQUIRE  A  FRANCHISOR,
 MANUFACTURER, OR DISTRIBUTOR TO GRANT A NEW MOTOR VEHICLE DEALER A BENE-
 FIT  UNDER AN INCENTIVE, BONUS, HOLDBACK OR SIMILAR PAYMENT THAT THE NEW
 MOTOR VEHICLE DEALER DID NOT EARN OR FOR WHICH THE NEW MOTOR DEALER  DID
 NOT  COMPLETE OR QUALIFY. IN ANY SUCH JUDICIAL ACTION OR PROCEEDING, THE
 COURT MAY AWARD REASONABLE ATTORNEY'S FEES AND COSTS.  SUCH ACTIONS  MAY
 BE  BROUGHT  REGARDLESS  OF  WHETHER  OR NOT THE UNDERLYING VIOLATION IS
 CONSUMER-ORIENTED OR  HAS  A  PUBLIC  IMPACT.  THE  COURT  MAY,  IN  ITS
 DISCRETION, INCREASE THE AWARD OF DAMAGES IF THE COURT FINDS THE DEFEND-
 ANT  WILLFULLY OR KNOWINGLY VIOLATED THIS SECTION. THE COURT SHALL AWARD
 REASONABLE ATTORNEY'S FEES AND COSTS TO A PREVAILING PLAINTIFF.
   § 15. Section 415 of the vehicle and traffic law is amended by  adding
 two new subdivisions 21 and 22 to read as follows:
   21. PENALTIES AND RIGHTS OF ACTION FOR FAILURE TO OBTAIN A CERTIFICATE
 OF  REGISTRATION  AS  A  NEW  AUTOMOBILE  BROKER PURSUANT TO SUBDIVISION
 THREE-A AND PARAGRAPH B-3 OF SUBDIVISION FIVE OF THIS  SECTION.  A.  THE
 COMMISSIONER,  OR  ANY  PERSON  DESIGNATED  BY  HIM  OR HER, MAY PROCEED
 AGAINST A PARTY WHO HAS OPERATED AS  A  NEW  AUTOMOBILE  BROKER  WITHOUT
 CERTIFICATE  OF  REGISTRATION  IN ACCORDANCE WITH THE PROVISIONS OF THIS
 ARTICLE, IN ANY ONE OR MORE PROCEEDINGS AND BY ORDER REQUIRE THE OFFEND-
 ING PARTY TO PAY THE PEOPLE OF THIS STATE A PENALTY  IN  A  SUM  NOT  TO
 EXCEED  TWO  THOUSAND  DOLLARS  FOR  EACH  VIOLATION  FOUND TO HAVE BEEN
 COMMITTED. CIVIL PENALTIES ASSESSED UNDER THIS SUBDIVISION SHALL BE PAID
 TO THE COMMISSIONER FOR DEPOSIT INTO  THE  STATE  TREASURY,  AND  UNPAID
 CIVIL  PENALTIES  MAY BE RECOVERED BY THE COMMISSIONER IN A CIVIL ACTION
 IN THE NAME OF THE COMMISSIONER. FOR THE PURPOSES OF THIS SUBDIVISION, A
 "VIOLATION" SHALL MEAN EACH VEHICLE SOLD OR LEASED  TO  A  CONSUMER  FOR
 WHICH  THE PARTY THAT FAILED TO OBTAIN CERTIFICATION AS A NEW AUTOMOBILE
 BROKER HAS SERVED AS A NEW AUTOMOBILE BROKER.
   B. IN ADDITION TO ANY CIVIL ACTION BROUGHT BY THE COMMISSIONER OR  ANY
 PERSON  APPOINTED BY HIM, ANY PERSONS INJURED BY ANY VIOLATION OF SUBDI-
 VISION THREE-A AND PARAGRAPH B-3 OF SUBDIVISION FIVE  OF  THIS  SECTION,
 SHALL  BE  ENTITLED  TO  SUE  FOR AND HAVE INJUNCTIVE RELIEF AND DAMAGES
 AGAINST, ANY PARTY IN VIOLATION OF SUBDIVISION THREE-A AND PARAGRAPH B-3
 OF SUBDIVISION FIVE OF THIS SECTION IN ANY COURT  OF  THE  STATE  HAVING
 JURISDICTION OVER THE PARTIES.  IN THE CASE OF A NEW MOTOR VEHICLE DEAL-
 ER,  INJURY SHALL INCLUDE DEPRIVING THE NEW MOTOR VEHICLE DEALER LOCATED
 CLOSEST TO A LESSEE OR PURCHASER THE OPPORTUNITY TO BID ON SUCH LEASE OR
 PURCHASE AS ENTITLED BY THIS ARTICLE. DAMAGES SHALL INCLUDE THE VALUE OF
 INCENTIVE PAYMENTS, BONUSES, HOLDBACKS OR SIMILAR  PAYMENTS  THAT  WOULD
 HAVE  BEEN  REALIZED  HAD A LESSEE OR PURCHASER PURCHASED OR LEASED SUCH
 VEHICLE FROM THE NEW MOTOR VEHICLE DEALER IN CLOSEST PROXIMITY  TO  SUCH
 LESSEE  OR PURCHASER BUT FOR THE ACTIONS OF A PERSON WHO KNOWINGLY AIDED

 S. 4364--C                         10
 
 THE VIOLATION OF THE PROVISIONS OF THIS ARTICLE. NOTHING IN THIS  SUBDI-
 VISION SHALL REQUIRE A FRANCHISOR, MANUFACTURER, OR DISTRIBUTOR TO GRANT
 A NEW MOTOR VEHICLE DEALER A BENEFIT UNDER AN INCENTIVE, BONUS, HOLDBACK
 OR SIMILAR PAYMENT THAT THE NEW MOTOR VEHICLE DEALER DID NOT EARN OR FOR
 WHICH  THE  NEW  MOTOR  DEALER  DID NOT COMPLETE OR QUALIFY. IN ANY SUCH
 JUDICIAL ACTION OR PROCEEDING, THE COURT MAY AWARD REASONABLE ATTORNEY'S
 FEES AND COSTS.  SUCH ACTIONS MAY BE BROUGHT REGARDLESS  OF  WHETHER  OR
 NOT  THE  UNDERLYING  VIOLATION  IS  CONSUMER-ORIENTED  OR  HAS A PUBLIC
 IMPACT. THE COURT MAY, IN ITS DISCRETION, INCREASE THE AWARD OF  DAMAGES
 IF  THE  COURT  FINDS THE DEFENDANT WILLFULLY OR KNOWINGLY VIOLATED THIS
 SECTION. THE COURT SHALL AWARD REASONABLE ATTORNEY'S FEES AND COSTS TO A
 PREVAILING PLAINTIFF.
   22. NEW AUTOMOBILE  BROKER  RECORD  REQUIREMENTS.  A.  NEW  AUTOMOBILE
 BROKERS  SHALL  MAINTAIN  A  PERMANENTLY  BOUND  BOOK  IN WHICH SHALL BE
 RECORDED THE MAKE, MODEL, YEAR COLOR AND VEHICLE  IDENTIFICATION  NUMBER
 OF  ALL  PREVIOUSLY  UNREGISTERED  AUTOMOBILES FOR WHICH SUCH BROKER HAS
 PROVIDED A SERVICE OF PURCHASING, ARRANGING, ASSISTING, FACILITATING  OR
 EFFECTING  THE PURCHASE OR LEASE OF SUCH AUTOMOBILE WITHIN ANY PRECEDING
 SIX-YEAR PERIOD.  SUCH BOOK SHALL ALSO HAVE RECORDED  A  RECORD  OF  THE
 NAME AND ADDRESS OF THE PURCHASER OR LESSOR OF SUCH AUTOMOBILE, THE DATE
 OF  SALE  OR  COMMENCEMENT  OF LEASE OF SUCH AUTOMOBILE AND THE NAME AND
 ADDRESS OF THE DEALER FROM WHICH THE AUTOMOBILE WAS PURCHASED OR LEASED.
   B. NEW AUTOMOBILE BROKERS SHALL MAINTAIN A PERMANENTLY BOUND  BOOK  IN
 WHICH  SHALL BE RECORDED ALL COMPLETED ORDERS TO SEARCH FOR A PREVIOUSLY
 UNREGISTERED AUTOMOBILE. SUCH BOOK SHALL ALSO HAVE RECORDED A RECORD  OF
 THE  DATE  OF  SUCH  ORDER, THE NAME AND ADDRESS OF THE PERSON OR ENTITY
 ORDERING SUCH SEARCH, THE AUTOMOBILE  SPECIFICATIONS  PROVIDED  BY  SUCH
 PROSPECTIVE  BUYER  OR  LESSEE  AND  THE NAME AND ADDRESS OF THE DEALERS
 SOLICITED FOR A QUOTE OR OFFER ON BEHALF OF SUCH  PROSPECTIVE  BUYER  OR
 LESSEE.
   C. SUCH BOOKS SHALL BE OPEN FOR INSPECTION BY THE COMMISSIONER, OR HIS
 OR  HER  AGENT,  DURING  REASONABLE BUSINESS HOURS. THE COMMISSIONER MAY
 ESTABLISH BY RULE THE FORM OF ANY SUCH BOOK.
   D. AS AN ALTERNATIVE TO A BOUND BOOK, A NEW AUTOMOBILE BROKER MAY  USE
 A  COMPUTER  AND  SOFTWARE  APPROVED  BY  THE DEPARTMENT TO MAINTAIN THE
 RECORDS REQUIRED TO BE KEPT BY THIS SECTION,  PROVIDED  ALL  INFORMATION
 REQUIRED  BY  PARAGRAPHS  A  AND  B OF THIS SECTION ARE RECORDED AND THE
 RECORDS CONFORM TO SUCH ADDITIONAL REQUIREMENTS  AS  DETERMINED  BY  THE
 COMMISSIONER.
   §  16. Section 465 of the vehicle and traffic law is amended by adding
 a new subdivision 8 to read as follows:
   8. A FRANCHISOR MAY REQUIRE A FRANCHISEE TO SUBMIT TO A FRANCHISOR THE
 NAME AND REGISTRATION NUMBER OF ANY NEW AUTOMOBILE BROKER BUSINESS  THAT
 ARRANGED, ASSISTED, FACILITATED OR EFFECTED THE PURCHASE OR LEASE OF ANY
 VEHICLE  FROM  SUCH  DEALER. A FRANCHISOR MAY CHARGE BACK THE FRANCHISEE
 ANY SALES, ADVERTISING OR  MARKETING  INCENTIVE  PAYMENT  OR  ANY  OTHER
 PAYMENT OR BENEFIT ASSOCIATED WITH THE SALE OR LEASE OF SUCH VEHICLE FOR
 FAILURE TO SUBMIT SUCH INFORMATION.
   §  17.  The  general  business  law is amended by adding a new section
 737-a to read as follows:
   § 737-A. BONA FIDE BID SOLICITING REQUIRED. 1. IN PROVIDING A  SERVICE
 OF  PURCHASING,  ARRANGING,  ASSISTING,  FACILITATING  OR  EFFECTING THE
 PURCHASE OR LEASE OF A PREVIOUSLY UNREGISTERED AUTOMOBILE, A NEW AUTOMO-
 BILE BROKER BUSINESS SHALL SOLICIT BIDS FROM AT LEAST THREE UNAFFILIATED
 NEW MOTOR VEHICLE DEALERS ON BEHALF OF A PROSPECTIVE BUYER OR LESSEE FOR
 A NEW MOTOR VEHICLE MEETING THE SPECIFICATIONS OF SUCH PROSPECTIVE BUYER

 S. 4364--C                         11
 
 OR LESSEE, INCLUDING THE NEW MOTOR VEHICLE  DEALER  LOCATED  IN  CLOSEST
 PROXIMITY TO THE HOME ADDRESS OF SUCH PROSPECTIVE BUYER OR LESSEE OR, IN
 THE CASE OF AN ENTITY, ITS PLACE OF DOING BUSINESS.
   2.  THE COMMISSIONER OF MOTOR VEHICLES MAY ADOPT RULES AND REGULATIONS
 NECESSARY TO EFFECTUATE THE PROVISIONS OF THIS SECTION.
   § 18. Severability. If any provision of this act, or  any  application
 of  any  provision  of  this  act, is held to be invalid, that shall not
 affect the validity or effectiveness of any other provision of this act,
 or of any other application of any provision of this act, which  can  be
 given effect without that provision or application; and to that end, the
 provisions and applications of this act are severable.
   §  19. This act shall take effect immediately; provided that all auto-
 mobile brokers registered on the effective date of this act  shall  have
 ninety days to come into compliance with the provisions of this act.