§ 302-A — Total loss notice and waiver of the gap amount

§ 302A. Total loss notice and waiver of the gap amount. 1. If the\nretail instalment contract provides that the buyer shall be responsible\nupon a total loss of the vehicle occasioned by its theft, confiscation\nor physical damage for the gap amount as defined in paragraph fifty-two\nof subsection (a) of section one hundred seven of the insurance law, the\nholder, prior to the execution of the contract, shall by a notice on a\nseparate document conspicuously disclose that fact and the obligations\nfor which the buyer would remain liable in the event of a theft,\nconfiscation or total loss of the vehicle. If the holder is required\nunder subdivision two of this section to offer to waive its contractual\nright to hold the buyer liable for the gap amount in the event of a\ntotal loss of the vehicle occasioned by its theft or physical damage,\nthe notice shall also: (a) state that for a separate charge disclosed in\nthe notice the holder will waive its contractual right to hold the buyer\nliable for the gap amount in the event of a total loss of the vehicle\noccasioned by its theft or physical damage; (b) contain a provision\ninforming the buyer that he or she may, as an alternative to purchasing\na waiver, be able to purchase insurance covering the gap amount from an\ninsurance company which has been licensed by the superintendent of\nfinancial services to write motor vehicle debtor gap insurance in this\nstate; and (c) contain a provision permitting the buyer to indicate\nwhether he or she wants the holder to waive its contractual right to\nhold the buyer liable for the gap amount in the event of a total loss of\nthe vehicle occasioned by its theft or physical damage. The notice shall\nbe signed by the buyer. The holder shall provide a copy of the signed\nnotice to the buyer and shall maintain a copy in the holder's files for\nat least the term of the contract. Failure to provide the notice and to\nobtain the buyer's signature as required by this subdivision shall\ninvalidate any provision of the agreement which otherwise would obligate\na buyer to pay to the holder, after a total loss of the motor vehicle\noccasioned by its theft, confiscation or physical damage, the gap\namount. No retail installment contract shall be conditioned upon the\nbuyer's obtaining of motor vehicle debtor gap insurance as set forth in\nsubparagraph (B) of paragraph twenty-six of subsection (a) of section\none thousand one hundred thirteen of the insurance law.\n 2. If the retail instalment contract provides that the buyer shall be\nresponsible upon a total loss of the vehicle occasioned by its theft or\nphysical damage for the gap amount, the holder, prior to the execution\nof the agreement, shall offer to waive its contractual right to hold the\nbuyer liable for the gap amount in the event of a total loss of the\nvehicle occasioned by its theft or physical damage, only if motor\nvehicle creditor gap insurance coverage is available to the holder and\nsuch coverage is obtained from a property/casualty insurance company,\nwhich has been licensed by the superintendent of financial services of\nthis state to write motor vehicle creditor gap insurance in this state.\nThis offer may be made contingent upon the payment by the buyer of a\nseparate charge that shall not exceed the cost of motor vehicle creditor\ngap insurance covering the retail instalment contract. Nothing contained\nin this section shall be construed to authorize a waiver, in connection\nwith a transaction with respect to which motor vehicle creditor gap\ninsurance has not been obtained, of a contractual right to hold the\nbuyer liable for the gap amount in the event of a total loss of the\nvehicle occasioned by its theft or physical damage.\n 3. A holder shall not be obligated under subdivision two of this\nsection to offer to waive its contractual right to hold the buyer liable\nfor the gap amount if, during the current calendar year or during the\nodd-numbered calendar year immediately preceding the calendar year in\nwhich the agreement is entered into, the holder has received motor\nvehicle creditor gap insurance declination notices or other evidence of\nunavailability from every insurance company whose name appears on the\ndepartment of financial services compilation of insurance companies\nwhich during that calendar year were authorized to write motor vehicle\ncreditor gap insurance in this state. Evidence of these declinations\nshall be retained by such a holder of such a holder for a period of six\nyears after the expiration of the calendar year in which they were\nissued.\n 4. In order to enable holders or their anticipated assignees to comply\nwith the requirements imposed by subdivision two of this section, the\nsuperintendent of financial services shall compile and make available a\nperiodically updated list of those insurance companies which are\nauthorized to write motor vehicle creditor gap insurance coverage in\nthis state.\n 5. Nothing in this section shall be construed to apply to the holder,\nunder a retail instalment contract under which the buyer is not liable\nupon a total loss of the vehicle occasioned by its theft, confiscation\nor physical damage for the gap amount.\n