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SECTION 23
Automobile auctioneer
General Business (GBS) CHAPTER 20, ARTICLE 3
§ 23. Automobile auctioneer. 1. Definitions. The term "automobile
auctioneer" as used in this section means any person, not claiming title
in himself, who sells or offers for retail sale 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 retail sale in any one calendar month upon premises owned
or controlled by him.

2. Title. An automobile auctioneer shall not sell a motor vehicle
unless he has in his possession the currently valid certificate of title
to that motor vehicle, or, if a certificate of title is not required,
then he shall have in his possession the appropriate proof of ownership
for such motor vehicle. Title or proof of ownership shall be delivered
to the purchaser immediately upon acceptance of tender of payment.

2-a. Sale of vehicles. a. An automobile auctioneer shall not sell or
offer for sale a motor vehicle unless such auctioneer is a dealer
registered pursuant to article sixteen of the vehicle and traffic law.

b. Except as otherwise permitted by law, an automobile auctioneer
shall not sell or offer for sale a motor vehicle on a sale basis of "as
is" or "with all faults", or by using words of similar import at or
prior to the time of sale.

3. Disclosure. a. No motor vehicle shall be sold by an automobile
auctioneer unless he has disclosed the identity of the seller who is
actually transferring title or proof of ownership. Such disclosure of
the seller's identity shall be made by the auctioneer (i) in a written
disclosure made in not less than ten-point bold face type and appearing
on the front of the sales contract, receipt, invoice, or other document
used in connection with the sale of the vehicle that shall set forth the
seller's true legal name, complete street address and dealer facility
identification number and that shall be captioned "Identity of Vehicle's
Seller"; and (ii) by affixing a conspicuous sign to the windshield of
each vehicle offered for sale, sold or made available for inspection
prior to auction that shall disclose the seller's true legal name,
complete street address and dealer facility identification number.

b. No used motor vehicle subject to the provisions of section one
hundred ninety-eight-b of this chapter shall be sold or offered for sale
by an automobile auctioneer unless such auctioneer discloses the Used
Car Lemon Law Bill of Rights. Such disclosure shall be made in writing,
in not less than ten-point bold face type and appearing on the front of
the sales contract, receipt, invoice, or other document used in
connection with the sale of the vehicle, and shall be captioned "Used
Car Lemon Law Bill of Rights".

c. No motor vehicle subject to the provisions of section one hundred
ninety-eight-a of this chapter shall be sold or offered for sale by an
automobile auctioneer unless such auctioneer discloses the New Car Lemon
Law Bill of Rights. Such disclosure shall be made in writing, in not
less than ten-point bold face type and appearing on the front of the
sales contract, receipt, invoice, or other document used in connection
with the sale of the vehicle, and shall be captioned "New Car Lemon Law
Bill of Rights".

d. No used motor vehicle shall be sold or offered for sale by an
automobile auctioneer unless such auctioneer provides the following
notice, in writing, in not less than ten-point bold face type and
appearing on the front of the sales contract, receipt, invoice or other
document used in connection with the sale of the vehicle:

CERTIFICATION NOTICE FOR USED CAR BUYERS

1. NEW YORK STATE LAW REQUIRES A USED CAR DEALER TO

CERTIFY IN WRITING TO THE BUYER THAT THE VEHICLE, AT THE

TIME OF DELIVERY, IS IN CONDITION AND REPAIR TO RENDER,

UNDER NORMAL USE, SATISFACTORY AND ADEQUATE SERVICE

(VEHICLE AND TRAFFIC LAW SECTION 417-a).

2. IF THE DEALER REFUSES TO HONOR ITS LEGAL DUTY,

COMPLAIN TO THE N.Y.S. DEPARTMENT OF MOTOR VEHICLES,

DIVISION OF VEHICLE SAFETY SERVICES, EMPIRE STATE PLAZA,

ALBANY, N.Y. 12228.

e. No used motor vehicle shall be sold or offered for sale by an
automobile auctioneer, unless such auctioneer posts a conspicuous sign
at each entrance to the auction used by the public, and in a place so
situated as to be clearly visible to bidders at the auction. Such sign
shall read as follows:

CERTIFICATION NOTICE FOR USED CAR BUYERS

1. NEW YORK STATE LAW REQUIRES A USED CAR DEALER TO

CERTIFY IN WRITING TO THE BUYER THAT THE VEHICLE, AT THE

TIME OF DELIVERY, IS IN CONDITION AND REPAIR TO RENDER,

UNDER NORMAL USE, SATISFACTORY AND ADEQUATE SERVICE.

2. IF THE DEALER REFUSES TO HONOR ITS LEGAL DUTY,

COMPLAIN TO THE N.Y.S. DEPARTMENT OF MOTOR VEHICLES,

DIVISION OF VEHICLE SAFETY SERVICES, EMPIRE STATE PLAZA,

ALBANY, N.Y. 12228.

4. Warranties. a. Notwithstanding any provision of law to the
contrary, in any contract of sale by an automobile auctioneer, there
shall be a warranty that:

(1) the title or proof of ownership conveyed shall be good, and its
transfer rightful; and

(2) the goods shall be delivered free from any security interest or
other lien or encumbrance of which the buyer at the time of contracting
has no knowledge.

b. Any waiver of the warranty provided for in paragraph a of this
subdivision by a buyer shall be deemed contrary to public policy and
shall be void and unenforceable. Any attempt by an automobile auctioneer
to exclude or modify such warranties shall constitute a violation of
this section.

5. Documentation of transactions. In addition to the records required
to be kept by auctioneers pursuant to section twenty-five of this
article, every sale by an automobile auctioneer shall be accompanied by
an itemized receipt which shall contain the following information:

a. legal name, and trade name if different, of the automobile
auctioneer;

b. address and telephone number of the automobile auctioneer;

c. name of the buyer;

d. make, year of manufacture, and identification number of said motor
vehicle;

e. the amount of money paid; and

f. the date of delivery.

6. Certificate of prior use. a. Upon the sale or transfer of any
passenger motor vehicle to an automobile auctioneer any transferer shall
execute and deliver to the auctioneer an instrument in writing which
shall set forth in nature of the principal prior use of such vehicle
when the automobile transferer knows or has reason to know that such use
was as a taxicab, rental vehicle, police vehicle, or driver education
vehicle, or vehicle which has been repurchased pursuant to either
section one hundred ninety-eight-a or one hundred ninety-eight-b of this
chapter, a similar statute of another state, or an arbitration or
alternative dispute procedure.

b. Upon the sale of any second-hand passenger motor vehicle, the
automobile auctioneer shall execute and deliver to the buyer an
instrument in writing which shall set forth the nature of the principal
prior use of such vehicle when the automobile auctioneer knows or has
reason to know that such use was as a taxicab, rental vehicle, police
vehicle, or driver education vehicle, or vehicle which has been
repurchased pursuant to either section one hundred ninety-eight-a or one
hundred ninety-eight-b of this chapter, a similar statute of another
state, or an arbitration or alternative dispute procedure.

7. Fraudulent representation. No automobile auctioneer, sales person
employed by such auctioneer, or agent or representative thereof selling
or offering for sale any motor vehicle, motorcycle, or trailer shall
make or use any untrue or misleading representations nor engage,
directly or indirectly, in any act or practice or course of business
which operates or would operate as a fraud or deception upon any person.

8. Exceptions. The provisions of this section shall not apply to an
auction or auctions at which only vehicles which are being sold pursuant
to repossession, or foreclosure of a lien, or by or on behalf of an
executor or administrator to settle an estate, or pursuant to a court
order, or an auction conducted by the federal government, or the state,
its agencies, bureaus, boards, commissions and authorities, or any
political subdivision of the state, or the agencies and authorities of
any such subdivision, or an auction at which only vehicles which are
being sold are owned by a regulated public utility or other business
which maintains a fleet of twenty-five or more vehicles used in the
ordinary course of business and not purchased for the purpose of resale,
or at an auction conducted upon a farm in which the only vehicles being
sold, excluding farm equipment, are vehicles formerly utilized for day
to day farm business or personal use and such vehicles are not being
sold for the purpose of resale, or at an auction at which bids are
accepted only from registered motor vehicle dealers, registered vehicle
dismantlers or certified scrap processors. Vehicles sold at such an
auction shall not be included in determining the number of vehicles sold
at auction for the purpose of determining whether a person is an
auctioneer.

9. Action by the attorney general. a. Upon any violation 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 to issue an injunction, and upon notice to the defendant of
not less than five days, to enjoin and restrain the continuance of the
violation. If it shall appear to the satisfaction of the court or
justice that the defendant has violated this section, an injunction may
be issued by the 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.

b. Whenever the court shall determine that a violation of this section
has occurred, it may impose a civil penalty of not more than one
thousand dollars for each violation. In connection with an application
made under this subdivision, the attorney general is authorized to take
proof and to make a determination of the relevant facts and to issue
subpoenas in accordance with the civil practice law and rules.

10. Additional remedies. In addition to the right of action granted to
the attorney general pursuant to subdivision nine of this section, any
buyer injured by a violation of this section may bring an action in his
own name to enjoin such unlawful practice, an action to recover his
actual damages or five hundred dollars, whichever is greater, or both
such actions. The court in its discretion may increase the award of
damages to an amount not to exceed three times the actual damages. The
court may award costs and reasonable attorney's fees to a prevailing
plaintiff.

11. Burden of proof. In any proceeding involving this section, the
burden of proving an exception or inapplicability for the definition of
automobile auctioneer is upon the person claiming it.

12. Severability clause. If any provision of this section or if any
application thereof to any person or circumstance is held invalid, the
remainder of the section and the application of the provision to other
persons and circumstances shall not be affected thereby.