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This entry was published on 2014-09-22
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SECTION 346
Penalties
Personal Property (PEP) CHAPTER 41, ARTICLE 9-A
§ 346. Penalties. 1. A lessee who has suffered a loss due to a
violation of any provision of this article by a lessor or holder is
entitled to recover his or her actual damages from the lessor or holder.

2. Any lessor who fails to refund any payment made pending the
execution of a retail lease agreement within the time required by
subdivision one of section three hundred thirty-four of this article
shall be liable to the lessee for twice the amount of the payment not
refunded within the time required.

3. Any lessor who fails to return a vehicle which the lessee left with
the lessor pending the execution of a retail lease agreement, or who
sells or transfers such a vehicle contrary to the provisions of
subdivision three of section three hundred thirty-four of this article,
shall be liable to the lessee for the value of the vehicle traded-in and
all costs and expenses incurred by the lessee because of the loss of the
vehicle.

4. In an action in which it is determined that a lessor or holder has
violated this article, the court shall award to the lessee a civil
penalty of one hundred dollars.

5. (a) In an action in which it is determined that a lessor or holder
has violated this article, the court also shall award to the lessee the
costs of the action and to his or her attorneys their reasonable fees.
In determining the award of attorney's fees, the amount of the recovery
on the behalf of the lessee is not controlling.

(b) In an action for the recovery of an amount claimed for excess wear
and tear, the court shall award to the lessee the costs of the action
and to his or her attorneys their reasonable fees if the holder is
awarded an amount less than an amount that the lessee offered, in
writing and prior to the institution of the action, to pay in
satisfaction of the contested portion of the amount claimed for excess
wear and tear.

6. A violation of subdivision fourteen of section three hundred
thirty-seven of this article is a deceptive trade practice under section
three hundred forty-nine of the general business law.

7. Whenever there shall be a violation of this article an application
may be made by the attorney general in the name of the people of the
state of New York to a court or justice having jurisdiction by a special
proceeding to issue an injunction, and upon notice to the defendant of
not less than five days, to enjoin and restrain the continuance of such
violations; and if it shall appear to the satisfaction of the court or
justice that the defendant has, in fact, violated this section, an
injunction may be issued by the court or justice, enjoining and
restraining any further violations, without requiring proof that any
person has, in fact, been injured or damaged thereby. In any such
proceeding, the court may make allowances to the attorney general as
provided in paragraph six of subdivision (a) of section eighty-three
hundred three of the civil practice law and rules, and direct
restitution. Whenever the court shall determine in any such proceeding
that a violation of this section has occurred, the court may impose a
civil penalty of not more than five hundred dollars for each violation.
In connection with any such proposed application the attorney general is
authorized to take proof and make a determination of the relevant facts
and to issue subpoenas in accordance with the civil practice law and
rules.

8. (a) Notwithstanding the provisions of this section, and except as
provided in subdivisions two and three of this section, any failure to
comply with the substantive provisions of this article may be corrected
within sixty days after the holder is notified thereof in writing by the
lessee or, in the absence of such notice, the lessor or holder may
voluntarily correct any such failure to comply and, if so corrected,
neither the lessor nor the holder shall be liable to a lessee for any
penalty under this section. Within sixty days after discovering a
violation of the disclosure provisions of this article, and prior to the
institution of an action under this section or the receipt of written
notice of the violation from the lessee, the lessor or holder may
correct the disclosure violation and, if so corrected, neither the
lessor nor the holder shall be subject to any penalty under this
section.

(b) Nothing in this subdivision shall be construed so as to nullify or
impair the right of the attorney general to proceed, under subdivision
seven of this section or subdivision twelve of section sixty-three of
the executive law, against a lessor or holder who has violated this
article.

9. A lessor or holder may not be held liable in an action brought
under this article for a violation of this article that was
unintentional and resulted from a bona fide error notwithstanding the
maintenance of procedures reasonably adapted to avoid any such error.
Examples of a bona fide error include, but are not limited to, clerical,
calculation, computer malfunction and programming, and printing errors,
except that an error of legal judgment with respect to a person's
obligations under this article is not a bona fide error.

10. An action shall not be brought under this article more than four
years after the occurrence of the act, method or practice which is the
subject of the action or more than one year after the last payment in a
transaction involving the method, act or practice which is the subject
of the action, whichever is later.