Auctions and Auctioneers in New York
McKinney's Consolidated Laws of New York AnnotatedGeneral Business Law (Refs & Annos)
Chapter 20. Of the Consolidated Laws
Article 3. Auctions and Auctioneers (Refs & Annos)
§ 21. Commissions; penalty
§ 22. Power of common council of cities
§ 23. Automobile auctioneer
§ 24. Mock auction
§ 25. Records to be kept by auctioneers
§ 26. Record open to inspection
§ 27. Penalties
§ 28. Limitation
§ 21. Commissions; penalty
An auctioneer in any county, other than New York or Kings, shall not, without a previous agreement in writing, with the owner or consignee of the goods sold, demand or receive a greater compensation for his services than a commission of two and one-half per centum on the amount of any sale, public or private, made by him. For a violation of this section he shall refund the moneys illegally received and forfeit two hundred and fifty dollars to each person from whom he demands or receives an unlawful compensation or commission.
§ 22. Power of common council of cities
Except as otherwise provided in the charter of the city, the common council of a city may designate such place within such city for the sale by auction of horses, carriages and household furniture, as it deems expedient.
§ 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.
A person who buys or sells, or pretends to buy or sell, any goods, wares, or merchandise, or any species of property except ships, vessels, or real or leasehold estate, exposed for sale by auction, if an actual sale, purchase, and change of ownership therein does not thereupon take place, is guilty of a misdemeanor, punishable by imprisonment for thirty days, or by fine not exceeding one hundred dollars or both.
A person who obtains money or property from another, or obtains the signature of another to any writing, the false making of which would be forgery, by means of any false or fraudulent sale of property or pretended property by auction, or by any of the practices known as mock auctions, is guilty of a misdemeanor; and in addition thereto he forfeits any license he may hold to act as an auctioneer, and is forever disqualified from receiving a license to act as an auctioneer in this state.
§ 25. Records to be kept by auctioneers
Every auctioneer or person engaged in the business of selling goods at auction, whether acting in his own behalf or as the officer, agent or representative of another, shall, upon the receipt or acceptance by him of any goods for the purpose of sale at auction, and before offering the same or any part thereof for sale at auction, write or cause to be written in a book to be kept by him for the purpose, the name and address of the person who employed him to sell such goods at auction, the name and address of the person for whose benefit, behalf or account such goods are to be sold at auction; the name and address of the person from whom such auctioneer received or accepted such goods; the name and address of the person who was the owner, the authorized agent of the owner or the consignor of such goods immediately prior to the receipt or acceptance for the purpose of sale at auction of the same by such auctioneer; the location, with street and number, if any, of such goods immediately prior to the receipt or acceptance of the same by such auctioneer for the purpose of sale at auction; the date of the receipt or acceptance by such auctioneer of such goods for the purpose of sale at auction; the place, with street and number, if any, in which such goods are to be held, kept or stored until sold or offered for sale at auction; the place, with street and number, if any, in which such goods are to be sold or offered for sale at auction; a description of such goods, the quantity thereof and the distinctive marks thereon, if any; the terms and conditions upon which such auctioneer receives or accepts such goods for sale at auction. The expression “goods” as used in this section signifies any goods, wares, works of art, commodity, compound or thing, chattels, merchandise or personal property which may be lawfully kept or offered for sale, but shall not include goods damaged at sea or by fire and sold or to be sold for the benefit of the owners, insurers or for the account of whom it may concern or goods sold by virtue of judicial decree. The word “person” as used in this section includes a corporation, joint-stock association or copartnership. Nothing herein shall apply to the sale of real property at auction. The foregoing records shall be in addition to any other records required to be kept pursuant to the uniform commercial code.
§ 26. Record open to inspection
The said book and the entries therein, made as provided by the preceding section, shall, at all reasonable times, be open to the inspection of the mayor and the head of the police department of the city in which the auctioneer conducts his business, the district attorney of any county in which said city is located or which is a part of such city, and any person who shall be duly authorized in writing for that purpose by any or either of them and who shall exhibit such written authorization to such auctioneer.
§ 27. Penalties
Any person who violates or does not comply with the provisions of section twenty-five hereof, or any auctioneer or person engaged in the business of selling goods at auction who shall fail, neglect or refuse to permit or allow an inspection as required by section twenty-six hereof of the book, which he is required to keep according to the provisions of section twenty-five hereof, shall be guilty of a misdemeanor.
§ 28. Limitation
Sections twenty-five, twenty-six and twenty-seven hereof shall apply only to cities of the first class and do not repeal or supersede the provisions of chapter thirty-two, title B, article twenty-one of the administrative code of the city of New York.
NY GEN BUS §§ 21- 28 (proposed legislations omitted)
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