2006 New York Code - Suspension, Revocation Or Refusal To Issue Registration; Civil Penalty; Restitution; Surrender Of Certificate Of Registration.

 
    § 398-e. Suspension,  revocation  or  refusal  to  issue registration;
  civil penalty; restitution; surrender of certificate of registration. 1.
  Suspension, revocation or refusal to issue registration or license.  The
  commissioner,  or  any person deputized by him, may deny the application
  of any person for a certificate of registration or  estimator's  license
  and  may  suspend or revoke the registration of any motor vehicle repair
  shop or any estimator's license  issued  pursuant  to  this  article  or
  refuse  to issue a renewal thereof if he determines that such applicant,
  registrant or licensee:
    (a) has made a material false statement or concealed a  material  fact
  in connection with his application;
    (b)  was  the  former  holder  of a certificate of registration issued
  hereunder which was revoked or suspended by the commissioner;
    (c) was, or that any officer, director, partner or stockholder holding
  more than ten percent of the outstanding stock was an officer, director,
  partner or stockholder holding more than ten percent of the  outstanding
  stock in a corporation or partnership, as the case may be, which was the
  former  holder  of  a certificate of registration issued hereunder which
  was revoked or suspended by the commissioner;
    (d) has failed to furnish satisfactory  evidence  of  good  character,
  reputation and fitness;
    (e) does not have a place of business as required by this article;
    (f)  is not the true owner of the repair shop, except in the case of a
  franchise;
    (g) has been guilty of fraud or fraudulent or deceptive practices;
    (h) has been grossly negligent on  two  or  more  occasions  within  a
  period  of  two  years  in  the  performance of any repair or adjustment
  covered by this article, or has  grossly  overcharged  on  two  or  more
  occasions within a period of two years for such repair or adjustment;
    (i)  has  wilfully failed to comply with any of the provisions of this
  article or the rules and regulations  of  the  commissioner  promulgated
  hereunder;
    (j) has knowingly issued a false or misleading estimate; or
    (k)  has  engaged in a course of conduct which unreasonably impedes or
  delays a consumer's right to a fair recovery pursuant to the  provisions
  of  an  automobile  insurance  policy,  the insurance law or regulations
  issued by the superintendent of insurance governing the  evaluation  and
  adjustments of claims.
    For  the  purposes  of  paragraphs  (g), (h), (i), (j) and (k) of this
  subdivision, it shall be presumed that the actions of any employee of  a
  motor vehicle repair shop shall be attributable to, and deemed to be the
  actions of, such motor vehicle repair shop.
    2. Civil penalty; suspension for failure to pay. (a) The commissioner,
  or  any  person deputized by him, may, by order, require a registrant or
  an unregistered repair shop to pay to the people of this state a penalty
  as hereinafter provided. Such penalty may be imposed in addition  to  or
  in  lieu  of revoking or suspending the certificate of registration of a
  registrant in accordance with the provisions of this article, or such  a
  penalty  may  be  imposed  upon  a  finding  that  a  registrant  or  an
  unregistered  repair  shop:  (i)  has  been  grossly  negligent  in  the
  performance of any repair or adjustment covered by this article; or (ii)
  has grossly overcharged for such repair or adjustment.
    (b)  Such  penalty shall be in a sum not exceeding three hundred fifty
  dollars for each violation, except that if a finding of  financial  loss
  has  been made pursuant to subdivision three of this section, the amount
  of such penalty may be increased by the  amount  of  financial  loss  so
  found.
    (c) Upon the failure of a registrant or an unregistered repair shop to
  pay such penalty, or, where the order so permits, to make restitution as
  provided  in subdivision three of this section, within thirty days after
  the mailing of such order, postage prepaid, registered or certified, and
  addressed  to  the  last  known  place of business of such registrant or
  unregistered repair shop, unless such order is  stayed  as  provided  in
  subdivision  three  of  section  three  hundred  ninety-eight-f  of this
  chapter, the commissioner may revoke the certificate of registration  of
  such  registrant  or  may  suspend  the  same  for such period as he may
  determine or may seek to recover  unpaid  civil  penalties  in  a  civil
  action  in  the name of the commissioner. Civil penalties assessed under
  this subdivision shall be paid to the commissioner for deposit into  the
  state treasury.
    (d)  In  addition, as an alternative to such civil action and provided
  that no proceeding for judicial review shall then  be  pending  and  the
  time   for  initiation  of  such  proceeding  shall  have  expired,  the
  commissioner may file with the county clerk of the county in  which  the
  registrant  is  located a final order of the commissioner containing the
  amount of the penalty assessed. The filing of  such  final  order  shall
  have the full force and effect of a judgment duly docketed in the office
  of  such  clerk and may be enforced in the same manner and with the same
  effect as that provided by law in respect to executions  issued  against
  property upon judgments of a court of record.
    3. Restitution; assessment. (a) Upon a determination that a registrant
  or  an  unregistered  repair  shop  has done or failed to do any act for
  which suspension of the registrant's registration  or  a  civil  penalty
  against the registrant or unregistered repair shop could be imposed, the
  person making such determination may make a finding of financial loss to
  any  complainant  or  complainants  resulting  from  the  actions of the
  registrant or unregistered repair shop. The person making  such  finding
  may  provide  that  if  the registrant or unregistered repair shop makes
  restitution to the complainant or complainants for the amount or amounts
  so found, that payment of such restitution may be substituted in lieu of
  any suspension or civil penalty, or a specified portion thereof  imposed
  upon  the  registrant or unregistered repair shop. However, a finding of
  financial loss shall only be made  if  the  complainant  (i)  agrees  to
  accept the amount so found, if offered by the registrant or unregistered
  repair  shop, and (ii) is not a party to any litigation which is pending
  or which has gone to judgment in relation to  the  same  matter  in  any
  civil court.
    (b)  The  amount  of financial loss which may be found and proposed as
  restitution shall be limited  to  an  amount  necessary  to  repair  the
  vehicle  or  vehicles  in question and/or any amount of overcharge which
  may be found. Neither punitive nor incidental damages may be included in
  the finding of financial loss.
    (c) If payment of restitution to the complainant is authorized in lieu
  of all or a portion of a suspension or civil penalty, in order  for  the
  registrant  or  unregistered  repair shop to exercise the option to make
  such payment, such payment must be made by means of a certified check or
  money order payable to the complainant or complainants delivered  to  an
  office  of  the  department as directed by the commissioner or his agent
  within thirty days of the date of  notice  of  suspension  and/or  civil
  penalty.  Upon  receipt  of  such  certified  check  or money order, the
  department shall forward the same to the complainant or complainants. In
  the event that the registrant or unregistered repair shop should fail to
  make payment for restitution within such thirty days, but,  at  a  later
  time,  pays  such  civil  penalty, the department shall deduct from such
  civil penalty payment the amount assessed  for  restitution,  and  shall
  mail a check for such amount to the complainant or complainants.
    (d)  If  payment  of restitution may be substituted in lieu of a civil
  penalty  or  portion  of  a  civil  penalty,  and  the   registrant   or
  unregistered  repair  shop  does  not  exercise  the option to make such
  payment, the civil penalty becomes due as provided in subdivision two of
  this  section  and  the  provisions  of  that  subdivision  relating  to
  suspension of registration and recovery of civil penalties shall apply.
    (e)  Any  payment  made in compliance with such a finding of financial
  loss shall not preclude any civil action which may  be  brought  by  the
  complainant,  registrant  or  unregistered  repair  shop,  and  any such
  finding may be considered but shall not be binding upon any court before
  which any such action is brought.
    4. Surrender of certificate of registration. Upon  the  suspension  or
  revocation  of a certificate of registration by the commissioner and the
  issuance of notice thereof, the registrant shall immediately deliver the
  certificate of registration to the commissioner or to any peace officer,
  acting pursuant to his special duties, or police officer directed by the
  commissioner to secure possession thereof, or agent of the commissioner,
  displaying authorization to act in such capacity along with a  certified
  copy  of  the  order  revoking  or suspending such registration, and the
  failure  to  so  deliver  the  certificate  within  thirty  days   shall
  constitute  a  traffic  infraction and shall be punishable in the manner
  provided in section eighteen hundred of this chapter.