§ 346 — Penalties

§ 346. Penalties. 1. A lessee who has suffered a loss due to a\nviolation of any provision of this article by a lessor or holder is\nentitled to recover his or her actual damages from the lessor or holder.\n 2. Any lessor who fails to refund any payment made pending the\nexecution of a retail lease agreement within the time required by\nsubdivision one of section three hundred thirty-four of this article\nshall be liable to the lessee for twice the amount of the payment not\nrefunded within the time required.\n 3. Any lessor who fails to return a vehicle which the lessee left with\nthe lessor pending the execution of a retail lease agreement, or who\nsells or transfers such a vehicle contrary to the provisions of\nsubdivision three of section three hundred thirty-four of this article,\nshall be liable to the lessee for the value of the vehicle traded-in and\nall costs and expenses incurred by the lessee because of the loss of the\nvehicle.\n 4. In an action in which it is determined that a lessor or holder has\nviolated this article, the court shall award to the lessee a civil\npenalty of one hundred dollars.\n 5. (a) In an action in which it is determined that a lessor or holder\nhas violated this article, the court also shall award to the lessee the\ncosts of the action and to his or her attorneys their reasonable fees.\nIn determining the award of attorney's fees, the amount of the recovery\non the behalf of the lessee is not controlling.\n (b) In an action for the recovery of an amount claimed for excess wear\nand tear, the court shall award to the lessee the costs of the action\nand to his or her attorneys their reasonable fees if the holder is\nawarded an amount less than an amount that the lessee offered, in\nwriting and prior to the institution of the action, to pay in\nsatisfaction of the contested portion of the amount claimed for excess\nwear and tear.\n 6. A violation of subdivision fourteen of section three hundred\nthirty-seven of this article is a deceptive trade practice under section\nthree hundred forty-nine of the general business law.\n 7. Whenever there shall be a violation of this article an application\nmay be made by the attorney general in the name of the people of the\nstate of New York to a court or justice having jurisdiction by a special\nproceeding to issue an injunction, and upon notice to the defendant of\nnot less than five days, to enjoin and restrain the continuance of such\nviolations; and if it shall appear to the satisfaction of the court or\njustice that the defendant has, in fact, violated this section, an\ninjunction may be issued by the court or justice, enjoining and\nrestraining any further violations, without requiring proof that any\nperson has, in fact, been injured or damaged thereby. In any such\nproceeding, the court may make allowances to the attorney general as\nprovided in paragraph six of subdivision (a) of section eighty-three\nhundred three of the civil practice law and rules, and direct\nrestitution. Whenever the court shall determine in any such proceeding\nthat a violation of this section has occurred, the court may impose a\ncivil penalty of not more than five hundred dollars for each violation.\nIn connection with any such proposed application the attorney general is\nauthorized to take proof and make a determination of the relevant facts\nand to issue subpoenas in accordance with the civil practice law and\nrules.\n 8. (a) Notwithstanding the provisions of this section, and except as\nprovided in subdivisions two and three of this section, any failure to\ncomply with the substantive provisions of this article may be corrected\nwithin sixty days after the holder is notified thereof in writing by the\nlessee or, in the absence of such notice, the lessor or holder may\nvoluntarily correct any such failure to comply and, if so corrected,\nneither the lessor nor the holder shall be liable to a lessee for any\npenalty under this section. Within sixty days after discovering a\nviolation of the disclosure provisions of this article, and prior to the\ninstitution of an action under this section or the receipt of written\nnotice of the violation from the lessee, the lessor or holder may\ncorrect the disclosure violation and, if so corrected, neither the\nlessor nor the holder shall be subject to any penalty under this\nsection.\n (b) Nothing in this subdivision shall be construed so as to nullify or\nimpair the right of the attorney general to proceed, under subdivision\nseven of this section or subdivision twelve of section sixty-three of\nthe executive law, against a lessor or holder who has violated this\narticle.\n 9. A lessor or holder may not be held liable in an action brought\nunder this article for a violation of this article that was\nunintentional and resulted from a bona fide error notwithstanding the\nmaintenance of procedures reasonably adapted to avoid any such error.\nExamples of a bona fide error include, but are not limited to, clerical,\ncalculation, computer malfunction and programming, and printing errors,\nexcept that an error of legal judgment with respect to a person's\nobligations under this article is not a bona fide error.\n 10. An action shall not be brought under this article more than four\nyears after the occurrence of the act, method or practice which is the\nsubject of the action or more than one year after the last payment in a\ntransaction involving the method, act or practice which is the subject\nof the action, whichever is later.\n