S T A T E O F N E W Y O R K
________________________________________________________________________
4955
2009-2010 Regular Sessions
I N A S S E M B L Y
February 10, 2009
___________
Introduced by M. of A. V. LOPEZ -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the general business law, in relation to a private right
of action for any violation of section 352-e of such law involving
real estate securities
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. Section 352-e of the general business law is amended by
2 adding a new subdivision 10 to read as follows:
3 10. (A) ANY PURCHASER OR SELLER OF ANY REAL ESTATE SECURITY AS DEFINED
4 IN THIS SECTION MAY BRING AN ACTION OR PROCEEDING FOR DAMAGES OR RESTI-
5 TUTION, OR BOTH, AND SUCH OTHER RELIEF AS THE COURT MAY DEEM APPROPRI-
6 ATE, FOR ANY VIOLATION OF THIS ARTICLE, SUBJECT TO THE REQUIREMENTS SET
7 FORTH IN THIS SUBDIVISION.
8 (B) PRIOR TO THE COMMENCEMENT OF SUCH ACTION, THE PURCHASER OR SELLER
9 OF THE SECURITY OR THE ATTORNEY FOR SUCH PURCHASER OR SELLER MUST
10 FORWARD A COPY OF THE PROPOSED COMPLAINT TO THE ATTORNEY GENERAL,
11 TOGETHER WITH A REQUEST FOR THE CERTIFICATION OF SUCH COMPLAINT. THE
12 ATTORNEY GENERAL MAY REQUIRE THE PLAINTIFF OR THE PLAINTIFF'S ATTORNEY
13 TO PROVIDE SUCH FACTUAL INFORMATION AS THE ATTORNEY GENERAL MAY REQUIRE.
14 (C) THE ATTORNEY GENERAL SHALL REVIEW THE COMPLAINT, AND MAY ISSUE AN
15 ORDER PROHIBITING THE COMMENCEMENT OF THE ACTION IF THE ATTORNEY GENERAL
16 DETERMINES THAT THE COMPLAINT LACKS A SUBSTANTIAL FACTUAL OR LEGAL
17 BASIS. IF IT IS DETERMINED THAT SUCH A SUBSTANTIAL BASIS EXISTS, THE
18 ATTORNEY GENERAL SHALL ISSUE A CERTIFICATION AUTHORIZING THE COMMENCE-
19 MENT OF THE ACTION.
20 (D) UNDER NO CIRCUMSTANCES MAY AN ACTION BE COMMENCED UNDER THIS
21 SUBDIVISION UNLESS THE ATTORNEY GENERAL HAS ISSUED THE REQUIRED CERTIF-
22 ICATION OR THE ATTORNEY GENERAL HAS NOT ACTED WITHIN THE LATER OF: (I)
23 SIXTY DAYS FOLLOWING THE SUBMISSION OF THE COMPLAINT OR (II) THIRTY DAYS
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD08407-01-9
A. 4955 2
1 FOLLOWING THE RECEIPT OF THE PLAINTIFF'S RESPONSE TO A REQUEST BY THE
2 ATTORNEY GENERAL FOR ADDITIONAL FACTUAL INFORMATION.
3 (E) AN ACTION BROUGHT BY A PURCHASER OR SELLER OF A REAL ESTATE SECU-
4 RITY PURSUANT TO THIS SUBDIVISION SHALL BE COMMENCED WITHIN SIX YEARS OF
5 THE DATE THE ACTS OR OMISSIONS COMPLAINED OF WERE COMMITTED, OR WITHIN
6 TWO YEARS OF THE DISCOVERY OF THE FRAUD, WHICHEVER OCCURS LATER.
7 (F) THE FILING OF A REQUEST FOR CERTIFICATION SHALL BE DEEMED TO TOLL
8 AN OTHERWISE UNEXPIRED STATUTE OF LIMITATIONS FOR THE COMMENCEMENT OF AN
9 ACTION BROUGHT UNDER THIS ARTICLE FOR A PERIOD OF ONE HUNDRED TWENTY
10 DAYS FROM THE DATE THAT SUCH REQUEST FOR CERTIFICATION IS FILED WITH THE
11 ATTORNEY GENERAL.
12 (G) IF THE ATTORNEY GENERAL SO REQUESTS, THE PARTIES TO ANY ACTION
13 COMMENCED PURSUANT TO THIS SUBDIVISION SHALL SERVE THE ATTORNEY GENERAL
14 WITH COPIES OF ALL PAPERS FILED IN THE ACTION AND WITH COPIES OF ALL
15 DEPOSITION TRANSCRIPTS AND DOCUMENTS PRODUCED IN DISCOVERY, AT THE
16 EXPENSE OF THE STATE.
17 (H) IN ANY SUCH ACTION OR PROCEEDING BROUGHT PURSUANT TO THIS SUBDIVI-
18 SION, THE COURT MAY AWARD A PREVAILING PLAINTIFF REASONABLE COSTS AND
19 ATTORNEY'S FEES FOR ANY CLAIM ARISING UNDER THIS ARTICLE.
20 (I) NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE CONSTRUED TO AFFECT
21 OR LIMIT THE ABILITY OF THE ATTORNEY GENERAL TO INTERVENE IN ANY
22 PROCEEDING COMMENCED PURSUANT TO THIS SUBDIVISION, OR TO COMMENCE A
23 SEPARATE ACTION BASED UPON THE SAME FACTS AND CIRCUMSTANCES THAT
24 RESULTED IN THE ACTION COMMENCED PURSUANT TO THIS SUBDIVISION, OR TO
25 PURSUE ANY OTHER REMEDY AVAILABLE TO THE STATE.
26 (J) NOTHING CONTAINED IN THIS SUBDIVISION SHALL BE CONSTRUED TO AFFECT
27 THE VALIDITY OF ANY PROVISION OF A WRITTEN AGREEMENT, OTHERWISE ENFORCE-
28 ABLE, TO ARBITRATE ANY DISPUTE OR CLAIM, INCLUDING ANY CLAIM THAT MAY
29 ARISE UNDER THIS ARTICLE, OR TO ABRIDGE ANY OTHER REMEDY THAT MAY BE
30 AVAILABLE PURSUANT TO LAW.
31 S 2. This act shall take effect immediately.