§ 44-A — Violations and penalties; failure to make reports

§ 44-a. Violations and penalties; failure to make reports. 1.\nNotwithstanding any other provision of this chapter to the contrary:\n a. any person or entity licensed, registered, or incorporated or\notherwise formed pursuant to this chapter, or an out-of-state state\nbank, that inadvertently or unintentionally: (i) fails to make any\nreport required by the superintendent pursuant to this chapter, on or\nbefore the day designated for the making thereof; (ii) fails to include\nwithin such report any prescribed matter; or (iii) submits false or\nmisleading information therein, shall, after notice and hearing, forfeit\nto the people of the state not more than two thousand dollars for each\nday during which such report or omitted matter is delayed or withheld or\nsuch false or misleading information is not corrected, unless the time\ntherefor shall have been extended by the superintendent, for good cause\nshown, in his or her sole discretion;\n b. notwithstanding the provisions of paragraph a of this subdivision\nany person or entity licensed, registered, or incorporated or otherwise\nformed pursuant to this chapter, or an out-of-state state bank, that\ndemonstrates by any pattern of behavior or other action that any of its\nfailures as described in paragraph a of this subdivision were not\ninadvertent or unintentional shall, after notice and hearing, forfeit to\nthe people of the state not more than twenty thousand dollars for each\nday during which such failures continue;\n c. notwithstanding the provisions of paragraph a or b of this\nsubdivision, any person or entity licensed, registered, or incorporated\nor otherwise formed pursuant to this chapter that demonstrates that any\nof its failures as described in paragraph a of this subdivision\nconstitutes a pattern of behavior or other action performed knowingly\nand with reckless disregard shall, after notice and hearing, forfeit to\nthe people of the state not more than two hundred fifty thousand dollars\nor in the case of a banking organization, foreign bank licensee or an\nout-of-state state bank, the lesser of two hundred fifty thousand\ndollars or one percent of the total assets of such banking organization\nor one percent of the total assets in this state of such foreign bank\nlicensee, as applicable for each day that its failures continue.\n With respect to any amount assessed pursuant to this section against\nany person or entity licensed or registered pursuant to this chapter,\nbut not with respect to a banking organization, foreign bank licensee or\nout-of-state state bank, the superintendent in determining such amount,\nshall take into consideration the net worth and annual business volume\nof such licensed or registered person or entity.\n 2. In assessing any penalty pursuant to this section, the\nsuperintendent shall take into account, without limitation, factors\nincluding:\n a. the extent, if any, to which senior management or board directors\nor trustees participated therein,\n b. the extent to which the entity has cooperated with the\nsuperintendent in the investigation of such conduct,\n c. any sanction imposed by any other regulatory agency,\n d. the financial resources and good faith of the entity,\n e. the gravity of the violation,\n f. any history of prior violations, and\n g. such other matters as justice and the public interest may require.\n 3. Whenever the superintendent shall require the payment of such\npenalty by any such entity, he or she shall forthwith execute in\nduplicate a written order to that effect. On the date such order is\nexecuted, the superintendent shall file one copy of such order in the\noffice of the department and serve the second copy upon such entity\neither personally or by registered or certified mail, return receipt\nrequested, directed to the entity's principal place of business or, in\nthe case of a licensee or registrant, its last known address of record.\nSuch order may be reviewed in the manner provided by article\nseventy-eight of the civil practice law and rules. Such special\nproceeding for review as authorized by this section must be commenced\nwithin thirty days from the service of such order.\n 4. The superintendent may compromise, modify, or remit any penalty\nwhich he or she may assess or had already assessed under this section.\n 5. The superintendent may prescribe regulations to carry out the\nprovisions and purposes of this section.\n