§ 398-E — Suspension, revocation or refusal to issue registration; civil penalty; restitution; surrender of certificate of registration

§ 398-e. Suspension, revocation or refusal to issue registration;\ncivil penalty; restitution; surrender of certificate of registration. 1.\nSuspension, revocation or refusal to issue registration or license. The\ncommissioner, or any person deputized by him, may deny the application\nof any person for a certificate of registration or estimator's license\nand may suspend or revoke the registration of any motor vehicle repair\nshop or any estimator's license issued pursuant to this article or\nrefuse to issue a renewal thereof if he determines that such applicant,\nregistrant or licensee:\n (a) has made a material false statement or concealed a material fact\nin connection with his application;\n (b) was the former holder of a certificate of registration issued\nhereunder which was revoked or suspended by the commissioner;\n (c) was, or that any officer, director, partner or stockholder holding\nmore than ten percent of the outstanding stock was an officer, director,\npartner or stockholder holding more than ten percent of the outstanding\nstock in a corporation or partnership, as the case may be, which was the\nformer holder of a certificate of registration issued hereunder which\nwas revoked or suspended by the commissioner;\n (d) has failed to furnish satisfactory evidence of good character,\nreputation and fitness;\n (e) does not have a place of business as required by this article;\n (f) is not the true owner of the repair shop, except in the case of a\nfranchise;\n (g) has been guilty of fraud or fraudulent or deceptive practices;\n (h) has been grossly negligent on two or more occasions within a\nperiod of two years in the performance of any repair or adjustment\ncovered by this article, or has grossly overcharged on two or more\noccasions within a period of two years for such repair or adjustment;\n (i) has wilfully failed to comply with any of the provisions of this\narticle or the rules and regulations of the commissioner promulgated\nhereunder;\n (j) has knowingly issued a false or misleading estimate;\n (k) has engaged in a course of conduct which unreasonably impedes or\ndelays a consumer's right to a fair recovery pursuant to the provisions\nof an automobile insurance policy, the insurance law or regulations\nissued by the superintendent of financial services governing the\nevaluation and adjustments of claims; or\n (l) has wilfully violated paragraph (b) of subdivision thirty-one,\nsubdivision thirty-one-a or subdivision thirty-one-b of section three\nhundred seventy-five of this chapter.\n For the purposes of paragraphs (g), (h), (i), (j) and (k) of this\nsubdivision, it shall be presumed that the actions of any employee of a\nmotor vehicle repair shop shall be attributable to, and deemed to be the\nactions of, such motor vehicle repair shop.\n 2. Civil penalty; suspension for failure to pay. (a) The commissioner,\nor any person deputized by him, may, by order, require a registrant or\nan unregistered repair shop to pay to the people of this state a penalty\nas hereinafter provided. Such penalty may be imposed in addition to or\nin lieu of revoking or suspending the certificate of registration of a\nregistrant in accordance with the provisions of this article, or such a\npenalty may be imposed upon a finding that a registrant or an\nunregistered repair shop: (i) has been grossly negligent in the\nperformance of any repair or adjustment covered by this article; or (ii)\nhas grossly overcharged for such repair or adjustment.\n (b) Such penalty for a first violation shall be in a sum not exceeding\nseven hundred fifty dollars for each violation found to have been\ncommitted, and for a second or subsequent violation not arising out of\nthe same incident both of which were committed within a period of thirty\nmonths, be in a sum of not more than one thousand dollars for each\nviolation found to have been committed; provided, however, the penalty\nfor each and any violation of paragraph (g) of subdivision one of this\nsection found to have been committed shall be no less than three hundred\nand fifty dollars and no more than one thousand dollars, except that if\na finding of financial loss has been made pursuant to subdivision three\nof this section, the amount of such penalty may be increased by the\namount of financial loss so found.\n (c) Upon the failure of a registrant or an unregistered repair shop to\npay such penalty, or, where the order so permits, to make restitution as\nprovided in subdivision three of this section, within thirty days after\nthe mailing of such order, postage prepaid, registered or certified, and\naddressed to the last known place of business of such registrant or\nunregistered repair shop, unless such order is stayed as provided in\nsubdivision three of section three hundred ninety-eight-f of this\nchapter, the commissioner may revoke the certificate of registration of\nsuch registrant or may suspend the same for such period as he may\ndetermine or may seek to recover unpaid civil penalties in a civil\naction in the name of the commissioner. Civil penalties assessed under\nthis subdivision shall be paid to the commissioner for deposit into the\nstate treasury.\n (d) In addition, as an alternative to such civil action and provided\nthat no proceeding for judicial review shall then be pending and the\ntime for initiation of such proceeding shall have expired, the\ncommissioner may file with the county clerk of the county in which the\nregistrant is located a final order of the commissioner containing the\namount of the penalty assessed. The filing of such final order shall\nhave the full force and effect of a judgment duly docketed in the office\nof such clerk and may be enforced in the same manner and with the same\neffect as that provided by law in respect to executions issued against\nproperty upon judgments of a court of record.\n 3. Restitution; assessment. (a) Upon a determination that a registrant\nor an unregistered repair shop has done or failed to do any act for\nwhich suspension of the registrant's registration or a civil penalty\nagainst the registrant or unregistered repair shop could be imposed, the\nperson making such determination may make a finding of financial loss to\nany complainant or complainants resulting from the actions of the\nregistrant or unregistered repair shop. The person making such finding\nmay provide that if the registrant or unregistered repair shop makes\nrestitution to the complainant or complainants for the amount or amounts\nso found, that payment of such restitution may be substituted in lieu of\nany suspension or civil penalty, or a specified portion thereof imposed\nupon the registrant or unregistered repair shop. However, a finding of\nfinancial loss shall only be made if the complainant (i) agrees to\naccept the amount so found, if offered by the registrant or unregistered\nrepair shop, and (ii) is not a party to any litigation which is pending\nor which has gone to judgment in relation to the same matter in any\ncivil court.\n (b) The amount of financial loss which may be found and proposed as\nrestitution shall be limited to an amount necessary to repair the\nvehicle or vehicles in question and/or any amount of overcharge which\nmay be found. Neither punitive nor incidental damages may be included in\nthe finding of financial loss.\n (c) If payment of restitution to the complainant is authorized in lieu\nof all or a portion of a suspension or civil penalty, in order for the\nregistrant or unregistered repair shop to exercise the option to make\nsuch payment, such payment must be made by means of a certified check or\nmoney order payable to the complainant or complainants delivered to an\noffice of the department as directed by the commissioner or his agent\nwithin thirty days of the date of notice of suspension and/or civil\npenalty. Upon receipt of such certified check or money order, the\ndepartment shall forward the same to the complainant or complainants. In\nthe event that the registrant or unregistered repair shop should fail to\nmake payment for restitution within such thirty days, but, at a later\ntime, pays such civil penalty, the department shall deduct from such\ncivil penalty payment the amount assessed for restitution, and shall\nmail a check for such amount to the complainant or complainants.\n (d) If payment of restitution may be substituted in lieu of a civil\npenalty or portion of a civil penalty, and the registrant or\nunregistered repair shop does not exercise the option to make such\npayment, the civil penalty becomes due as provided in subdivision two of\nthis section and the provisions of that subdivision relating to\nsuspension of registration and recovery of civil penalties shall apply.\n (e) Any payment made in compliance with such a finding of financial\nloss shall not preclude any civil action which may be brought by the\ncomplainant, registrant or unregistered repair shop, and any such\nfinding may be considered but shall not be binding upon any court before\nwhich any such action is brought.\n 4. Surrender of certificate of registration. Upon the suspension or\nrevocation of a certificate of registration by the commissioner and the\nissuance of notice thereof, the registrant shall immediately deliver the\ncertificate of registration to the commissioner or to any peace officer,\nacting pursuant to his special duties, or police officer directed by the\ncommissioner to secure possession thereof, or agent of the commissioner,\ndisplaying authorization to act in such capacity along with a certified\ncopy of the order revoking or suspending such registration, and the\nfailure to so deliver the certificate within thirty days shall\nconstitute a traffic infraction and shall be punishable in the manner\nprovided in section eighteen hundred of this chapter.\n