§ 23 — Automobile auctioneer

§ 23. Automobile auctioneer. 1. Definitions. The term "automobile\nauctioneer" as used in this section means any person, not claiming title\nin himself, who sells or offers for retail sale more than five motor\nvehicles, motorcycles or trailers in any calendar year, or who displays\nor permits the display of three or more motor vehicles, motorcycles or\ntrailers for retail sale in any one calendar month upon premises owned\nor controlled by him.\n 2. Title. An automobile auctioneer shall not sell a motor vehicle\nunless he has in his possession the currently valid certificate of title\nto that motor vehicle, or, if a certificate of title is not required,\nthen he shall have in his possession the appropriate proof of ownership\nfor such motor vehicle. Title or proof of ownership shall be delivered\nto the purchaser immediately upon acceptance of tender of payment.\n 2-a. Sale of vehicles. a. An automobile auctioneer shall not sell or\noffer for sale a motor vehicle unless such auctioneer is a dealer\nregistered pursuant to article sixteen of the vehicle and traffic law.\n b. Except as otherwise permitted by law, an automobile auctioneer\nshall not sell or offer for sale a motor vehicle on a sale basis of "as\nis" or "with all faults", or by using words of similar import at or\nprior to the time of sale.\n 3. Disclosure. a. No motor vehicle shall be sold by an automobile\nauctioneer unless he has disclosed the identity of the seller who is\nactually transferring title or proof of ownership. Such disclosure of\nthe seller's identity shall be made by the auctioneer (i) in a written\ndisclosure made in not less than ten-point bold face type and appearing\non the front of the sales contract, receipt, invoice, or other document\nused in connection with the sale of the vehicle that shall set forth the\nseller's true legal name, complete street address and dealer facility\nidentification number and that shall be captioned "Identity of Vehicle's\nSeller"; and (ii) by affixing a conspicuous sign to the windshield of\neach vehicle offered for sale, sold or made available for inspection\nprior to auction that shall disclose the seller's true legal name,\ncomplete street address and dealer facility identification number.\n b. No used motor vehicle subject to the provisions of section one\nhundred ninety-eight-b of this chapter shall be sold or offered for sale\nby an automobile auctioneer unless such auctioneer discloses the Used\nCar Lemon Law Bill of Rights. Such disclosure shall be made in writing,\nin not less than ten-point bold face type and appearing on the front of\nthe sales contract, receipt, invoice, or other document used in\nconnection with the sale of the vehicle, and shall be captioned "Used\nCar Lemon Law Bill of Rights".\n c. No motor vehicle subject to the provisions of section one hundred\nninety-eight-a of this chapter shall be sold or offered for sale by an\nautomobile auctioneer unless such auctioneer discloses the New Car Lemon\nLaw Bill of Rights. Such disclosure shall be made in writing, in not\nless than ten-point bold face type and appearing on the front of the\nsales contract, receipt, invoice, or other document used in connection\nwith the sale of the vehicle, and shall be captioned "New Car Lemon Law\nBill of Rights".\n d. No used motor vehicle shall be sold or offered for sale by an\nautomobile auctioneer unless such auctioneer provides the following\nnotice, in writing, in not less than ten-point bold face type and\nappearing on the front of the sales contract, receipt, invoice or other\ndocument used in connection with the sale of the vehicle:\n CERTIFICATION NOTICE FOR USED CAR BUYERS\n 1. NEW YORK STATE LAW REQUIRES A USED CAR DEALER TO\n CERTIFY IN WRITING TO THE BUYER THAT THE VEHICLE, AT THE\n TIME OF DELIVERY, IS IN CONDITION AND REPAIR TO RENDER,\n UNDER NORMAL USE, SATISFACTORY AND ADEQUATE SERVICE\n (VEHICLE AND TRAFFIC LAW SECTION 417-a).\n 2. IF THE DEALER REFUSES TO HONOR ITS LEGAL DUTY,\n COMPLAIN TO THE N.Y.S. DEPARTMENT OF MOTOR VEHICLES,\n DIVISION OF VEHICLE SAFETY SERVICES, EMPIRE STATE PLAZA,\n ALBANY, N.Y. 12228.\n e. No used motor vehicle shall be sold or offered for sale by an\nautomobile auctioneer, unless such auctioneer posts a conspicuous sign\nat each entrance to the auction used by the public, and in a place so\nsituated as to be clearly visible to bidders at the auction. Such sign\nshall read as follows:\n CERTIFICATION NOTICE FOR USED CAR BUYERS\n 1. NEW YORK STATE LAW REQUIRES A USED CAR DEALER TO\n CERTIFY IN WRITING TO THE BUYER THAT THE VEHICLE, AT THE\n TIME OF DELIVERY, IS IN CONDITION AND REPAIR TO RENDER,\n UNDER NORMAL USE, SATISFACTORY AND ADEQUATE SERVICE.\n 2. IF THE DEALER REFUSES TO HONOR ITS LEGAL DUTY,\n COMPLAIN TO THE N.Y.S. DEPARTMENT OF MOTOR VEHICLES,\n DIVISION OF VEHICLE SAFETY SERVICES, EMPIRE STATE PLAZA,\n ALBANY, N.Y. 12228.\n 4. Warranties. a. Notwithstanding any provision of law to the\ncontrary, in any contract of sale by an automobile auctioneer, there\nshall be a warranty that:\n (1) the title or proof of ownership conveyed shall be good, and its\ntransfer rightful; and\n (2) the goods shall be delivered free from any security interest or\nother lien or encumbrance of which the buyer at the time of contracting\nhas no knowledge.\n b. Any waiver of the warranty provided for in paragraph a of this\nsubdivision by a buyer shall be deemed contrary to public policy and\nshall be void and unenforceable. Any attempt by an automobile auctioneer\nto exclude or modify such warranties shall constitute a violation of\nthis section.\n 5. Documentation of transactions. In addition to the records required\nto be kept by auctioneers pursuant to section twenty-five of this\narticle, every sale by an automobile auctioneer shall be accompanied by\nan itemized receipt which shall contain the following information:\n a. legal name, and trade name if different, of the automobile\nauctioneer;\n b. address and telephone number of the automobile auctioneer;\n c. name of the buyer;\n d. make, year of manufacture, and identification number of said motor\nvehicle;\n e. the amount of money paid; and\n f. the date of delivery.\n 6. Certificate of prior use. a. Upon the sale or transfer of any\npassenger motor vehicle to an automobile auctioneer any transferer shall\nexecute and deliver to the auctioneer an instrument in writing which\nshall set forth in nature of the principal prior use of such vehicle\nwhen the automobile transferer knows or has reason to know that such use\nwas as a taxicab, rental vehicle, police vehicle, or driver education\nvehicle, or vehicle which has been repurchased pursuant to either\nsection one hundred ninety-eight-a or one hundred ninety-eight-b of this\nchapter, a similar statute of another state, or an arbitration or\nalternative dispute procedure.\n b. Upon the sale of any second-hand passenger motor vehicle, the\nautomobile auctioneer shall execute and deliver to the buyer an\ninstrument in writing which shall set forth the nature of the principal\nprior use of such vehicle when the automobile auctioneer knows or has\nreason to know that such use was as a taxicab, rental vehicle, police\nvehicle, or driver education vehicle, or vehicle which has been\nrepurchased pursuant to either section one hundred ninety-eight-a or one\nhundred ninety-eight-b of this chapter, a similar statute of another\nstate, or an arbitration or alternative dispute procedure.\n 7. Fraudulent representation. No automobile auctioneer, sales person\nemployed by such auctioneer, or agent or representative thereof selling\nor offering for sale any motor vehicle, motorcycle, or trailer shall\nmake or use any untrue or misleading representations nor engage,\ndirectly or indirectly, in any act or practice or course of business\nwhich operates or would operate as a fraud or deception upon any person.\n 8. Exceptions. The provisions of this section shall not apply to an\nauction or auctions at which only vehicles which are being sold pursuant\nto repossession, or foreclosure of a lien, or by or on behalf of an\nexecutor or administrator to settle an estate, or pursuant to a court\norder, or an auction conducted by the federal government, or the state,\nits agencies, bureaus, boards, commissions and authorities, or any\npolitical subdivision of the state, or the agencies and authorities of\nany such subdivision, or an auction at which only vehicles which are\nbeing sold are owned by a regulated public utility or other business\nwhich maintains a fleet of twenty-five or more vehicles used in the\nordinary course of business and not purchased for the purpose of resale,\nor at an auction conducted upon a farm in which the only vehicles being\nsold, excluding farm equipment, are vehicles formerly utilized for day\nto day farm business or personal use and such vehicles are not being\nsold for the purpose of resale, or at an auction at which bids are\naccepted only from registered motor vehicle dealers, registered vehicle\ndismantlers or certified scrap processors. Vehicles sold at such an\nauction shall not be included in determining the number of vehicles sold\nat auction for the purpose of determining whether a person is an\nauctioneer.\n 9. Action by the attorney general. a. Upon any violation of this\nsection, an application may be made by the attorney general in the name\nof the people of the state of New York to a court or justice having\njurisdiction to issue an injunction, and upon notice to the defendant of\nnot less than five days, to enjoin and restrain the continuance of the\nviolation. If it shall appear to the satisfaction of the court or\njustice that the defendant has violated this section, an injunction may\nbe issued by the court or justice, enjoining and restraining any further\nviolation, without requiring proof that any person has, in fact, been\ninjured or damaged thereby. In any such proceeding, the court may make\nallowances to the attorney general as provided in paragraph six of\nsubdivision (a) of section eighty-three hundred three of the civil\npractice law and rules, and direct restitution.\n b. Whenever the court shall determine that a violation of this section\nhas occurred, it may impose a civil penalty of not more than one\nthousand dollars for each violation. In connection with an application\nmade under this subdivision, the attorney general is authorized to take\nproof and to make a determination of the relevant facts and to issue\nsubpoenas in accordance with the civil practice law and rules.\n 10. Additional remedies. In addition to the right of action granted to\nthe attorney general pursuant to subdivision nine of this section, any\nbuyer injured by a violation of this section may bring an action in his\nown name to enjoin such unlawful practice, an action to recover his\nactual damages or five hundred dollars, whichever is greater, or both\nsuch actions. The court in its discretion may increase the award of\ndamages to an amount not to exceed three times the actual damages. The\ncourt may award costs and reasonable attorney's fees to a prevailing\nplaintiff.\n 11. Burden of proof. In any proceeding involving this section, the\nburden of proving an exception or inapplicability for the definition of\nautomobile auctioneer is upon the person claiming it.\n 12. Severability clause. If any provision of this section or if any\napplication thereof to any person or circumstance is held invalid, the\nremainder of the section and the application of the provision to other\npersons and circumstances shall not be affected thereby.\n