N.Y. General Business Law § 23: Automobile auctioneer

§ 23. Automobile auctioneer. 1. Definitions. The term "automobile

auctioneer" as used in this section means any person, not claiming title

in himself, who sells or offers for retail sale more than five motor

vehicles, motorcycles or trailers in any calendar year, or who displays

or permits the display of three or more motor vehicles, motorcycles or

trailers for retail sale in any one calendar month upon premises owned

or controlled by him.

2. Title. An automobile auctioneer shall not sell a motor vehicle

unless he has in his possession the currently valid certificate of title

to that motor vehicle, or, if a certificate of title is not required,

then he shall have in his possession the appropriate proof of ownership

for such motor vehicle. Title or proof of ownership shall be delivered

to the purchaser immediately upon acceptance of tender of payment.

2-a. Sale of vehicles. a. An automobile auctioneer shall not sell or

offer for sale a motor vehicle unless such auctioneer is a dealer

registered pursuant to article sixteen of the vehicle and traffic law.

b. Except as otherwise permitted by law, an automobile auctioneer

shall not sell or offer for sale a motor vehicle on a sale basis of "as

is" or "with all faults", or by using words of similar import at or

prior to the time of sale.

3. Disclosure. a. No motor vehicle shall be sold by an automobile

auctioneer unless he has disclosed the identity of the seller who is

actually transferring title or proof of ownership. Such disclosure of

the seller's identity shall be made by the auctioneer (i) in a written

disclosure made in not less than ten-point bold face type and appearing

on the front of the sales contract, receipt, invoice, or other document

used in connection with the sale of the vehicle that shall set forth the

seller's true legal name, complete street address and dealer facility

identification number and that shall be captioned "Identity of Vehicle's

Seller"; and (ii) by affixing a conspicuous sign to the windshield of

each vehicle offered for sale, sold or made available for inspection

prior to auction that shall disclose the seller's true legal name,

complete street address and dealer facility identification number.

b. No used motor vehicle subject to the provisions of section one

hundred ninety-eight-b of this chapter shall be sold or offered for sale

by an automobile auctioneer unless such auctioneer discloses the Used

Car Lemon Law Bill of Rights. Such disclosure shall be made in writing,

in not less than ten-point bold face type and appearing on the front of

the sales contract, receipt, invoice, or other document used in

connection with the sale of the vehicle, and shall be captioned "Used

Car Lemon Law Bill of Rights".

c. No motor vehicle subject to the provisions of section one hundred

ninety-eight-a of this chapter shall be sold or offered for sale by an

automobile auctioneer unless such auctioneer discloses the New Car Lemon

Law Bill of Rights. Such disclosure shall be made in writing, in not

less than ten-point bold face type and appearing on the front of the

sales contract, receipt, invoice, or other document used in connection

with the sale of the vehicle, and shall be captioned "New Car Lemon Law

Bill of Rights".

d. No used motor vehicle shall be sold or offered for sale by an

automobile auctioneer unless such auctioneer provides the following

notice, in writing, in not less than ten-point bold face type and

appearing on the front of the sales contract, receipt, invoice or other

document used in connection with the sale of the vehicle:

CERTIFICATION NOTICE FOR USED CAR BUYERS

1. NEW YORK STATE LAW REQUIRES A USED CAR DEALER TO

CERTIFY IN WRITING TO THE BUYER THAT THE VEHICLE, AT THE

TIME OF DELIVERY, IS IN CONDITION AND REPAIR TO RENDER,

UNDER NORMAL USE, SATISFACTORY AND ADEQUATE SERVICE

(VEHICLE AND TRAFFIC LAW SECTION 417-a).

2. IF THE DEALER REFUSES TO HONOR ITS LEGAL DUTY,

COMPLAIN TO THE N.Y.S. DEPARTMENT OF MOTOR VEHICLES,

DIVISION OF VEHICLE SAFETY SERVICES, EMPIRE STATE PLAZA,

ALBANY, N.Y. 12228.

e. No used motor vehicle shall be sold or offered for sale by an

automobile auctioneer, unless such auctioneer posts a conspicuous sign

at each entrance to the auction used by the public, and in a place so

situated as to be clearly visible to bidders at the auction. Such sign

shall read as follows:

CERTIFICATION NOTICE FOR USED CAR BUYERS

1. NEW YORK STATE LAW REQUIRES A USED CAR DEALER TO

CERTIFY IN WRITING TO THE BUYER THAT THE VEHICLE, AT THE

TIME OF DELIVERY, IS IN CONDITION AND REPAIR TO RENDER,

UNDER NORMAL USE, SATISFACTORY AND ADEQUATE SERVICE.

2. IF THE DEALER REFUSES TO HONOR ITS LEGAL DUTY,

COMPLAIN TO THE N.Y.S. DEPARTMENT OF MOTOR VEHICLES,

DIVISION OF VEHICLE SAFETY SERVICES, EMPIRE STATE PLAZA,

ALBANY, N.Y. 12228.

4. Warranties. a. Notwithstanding any provision of law to the

contrary, in any contract of sale by an automobile auctioneer, there

shall be a warranty that:

(1) the title or proof of ownership conveyed shall be good, and its

transfer rightful; and

(2) the goods shall be delivered free from any security interest or

other lien or encumbrance of which the buyer at the time of contracting

has no knowledge.

b. Any waiver of the warranty provided for in paragraph a of this

subdivision by a buyer shall be deemed contrary to public policy and

shall be void and unenforceable. Any attempt by an automobile auctioneer

to exclude or modify such warranties shall constitute a violation of

this section.

5. Documentation of transactions. In addition to the records required

to be kept by auctioneers pursuant to section twenty-five of this

article, every sale by an automobile auctioneer shall be accompanied by

an itemized receipt which shall contain the following information:

a. legal name, and trade name if different, of the automobile

auctioneer;

b. address and telephone number of the automobile auctioneer;

c. name of the buyer;

d. make, year of manufacture, and identification number of said motor

vehicle;

e. the amount of money paid; and

f. the date of delivery.

6. Certificate of prior use. a. Upon the sale or transfer of any

passenger motor vehicle to an automobile auctioneer any transferer shall

execute and deliver to the auctioneer an instrument in writing which

shall set forth in nature of the principal prior use of such vehicle

when the automobile transferer knows or has reason to know that such use

was as a taxicab, rental vehicle, police vehicle, or driver education

vehicle, or vehicle which has been repurchased pursuant to either

section one hundred ninety-eight-a or one hundred ninety-eight-b of this

chapter, a similar statute of another state, or an arbitration or

alternative dispute procedure.

b. Upon the sale of any second-hand passenger motor vehicle, the

automobile auctioneer shall execute and deliver to the buyer an

instrument in writing which shall set forth the nature of the principal

prior use of such vehicle when the automobile auctioneer knows or has

reason to know that such use was as a taxicab, rental vehicle, police

vehicle, or driver education vehicle, or vehicle which has been

repurchased pursuant to either section one hundred ninety-eight-a or one

hundred ninety-eight-b of this chapter, a similar statute of another

state, or an arbitration or alternative dispute procedure.

7. Fraudulent representation. No automobile auctioneer, sales person

employed by such auctioneer, or agent or representative thereof selling

or offering for sale any motor vehicle, motorcycle, or trailer shall

make or use any untrue or misleading representations nor engage,

directly or indirectly, in any act or practice or course of business

which operates or would operate as a fraud or deception upon any person.

8. Exceptions. The provisions of this section shall not apply to an

auction or auctions at which only vehicles which are being sold pursuant

to repossession, or foreclosure of a lien, or by or on behalf of an

executor or administrator to settle an estate, or pursuant to a court

order, or an auction conducted by the federal government, or the state,

its agencies, bureaus, boards, commissions and authorities, or any

political subdivision of the state, or the agencies and authorities of

any such subdivision, or an auction at which only vehicles which are

being sold are owned by a regulated public utility or other business

which maintains a fleet of twenty-five or more vehicles used in the

ordinary course of business and not purchased for the purpose of resale,

or at an auction conducted upon a farm in which the only vehicles being

sold, excluding farm equipment, are vehicles formerly utilized for day

to day farm business or personal use and such vehicles are not being

sold for the purpose of resale, or at an auction at which bids are

accepted only from registered motor vehicle dealers, registered vehicle

dismantlers or certified scrap processors. Vehicles sold at such an

auction shall not be included in determining the number of vehicles sold

at auction for the purpose of determining whether a person is an

auctioneer.

9. Action by the attorney general. a. Upon any violation of this

section, an application may be made by the attorney general in the name

of the people of the state of New York to a court or justice having

jurisdiction to issue an injunction, and upon notice to the defendant of

not less than five days, to enjoin and restrain the continuance of the

violation. If it shall appear to the satisfaction of the court or

justice that the defendant has violated this section, an injunction may

be issued by the court or justice, enjoining and restraining any further

violation, without requiring proof that any person has, in fact, been

injured or damaged thereby. In any such proceeding, the court may make

allowances to the attorney general as provided in paragraph six of

subdivision (a) of section eighty-three hundred three of the civil

practice law and rules, and direct restitution.

b. Whenever the court shall determine that a violation of this section

has occurred, it may impose a civil penalty of not more than one

thousand dollars for each violation. In connection with an application

made under this subdivision, the attorney general is authorized to take

proof and to make a determination of the relevant facts and to issue

subpoenas in accordance with the civil practice law and rules.

10. Additional remedies. In addition to the right of action granted to

the attorney general pursuant to subdivision nine of this section, any

buyer injured by a violation of this section may bring an action in his

own name to enjoin such unlawful practice, an action to recover his

actual damages or five hundred dollars, whichever is greater, or both

such actions. The court in its discretion may increase the award of

damages to an amount not to exceed three times the actual damages. The

court may award costs and reasonable attorney's fees to a prevailing

plaintiff.

11. Burden of proof. In any proceeding involving this section, the

burden of proving an exception or inapplicability for the definition of

automobile auctioneer is upon the person claiming it.

12. Severability clause. If any provision of this section or if any

application thereof to any person or circumstance is held invalid, the

remainder of the section and the application of the provision to other

persons and circumstances shall not be affected thereby.