NY Veh & Traf L § 471-A (2021)
2021 New York Laws VAT - Vehicle and Traffic Title 4 - Registration of Vehicles Article 17-A - Franchised Motor Vehicle Dealer Act 471-A - Adjudicatory Proceedings.

§  471-a.  Adjudicatory  proceedings.  1.  Request for an adjudicatory proceeding. (a) Any franchised motor vehicle dealer who  is  or  may  be aggrieved  by a violation of this article may request mediation with the franchisor. The request for mediation shall be served by certified mail, or in such manner as the franchisor and franchised motor vehicle  dealer have agreed. If the franchisor agrees to mediation, such mediation shall proceed  in  accordance  with the terms as agreed upon by the franchisor and franchised motor vehicle dealer;  provided,  however,  that  if  the franchisor  and franchised motor vehicle dealer have not agreed upon the terms of mediation (i)  the  franchisor  and  franchised  motor  vehicle dealer  shall  select  a  mediator  within  seven days of service by the franchised motor vehicle dealer of the request for mediation;  (ii)  the mediation  shall be completed within twenty-one days of selection of the mediator, or within such period as the  franchisor  and  the  franchised motor  vehicle dealer shall agree; and (iii) the cost of mediation shall be shared  equally  by  the  parties.  If  the  matter  is  resolved  by mediation,  a  written  memorandum of the agreement shall be executed by the mediator, the franchisor, and the franchised motor vehicle dealer.  (b) If the matter has not been resolved by mediation,  the  franchisor and franchised motor vehicle dealer have not agreed to mediation, or the mediation  has  not  been  completed  within  the  period  set  forth in subparagraph (ii) of paragraph (a) of this subdivision,  the  franchised motor  vehicle  dealer  may  file with the commissioner a request for an adjudicatory proceeding pursuant to this section. The request  shall  be in  writing  and contain a short and plain statement of the facts relied upon by the dealer to support a claim that the franchisor  has  violated one  or more specific provisions of this article together with a request for  a  specific  remedy  other  than  damages.  The  request  shall  be accompanied  by  copies of all correspondence between the dealer and the franchisor and other documents  relevant  to  the  claims  made  in  the request. The request shall be accompanied by a non-refundable filing fee of two thousand dollars.  (c) A true copy of the request with copies of all documents filed with the  request shall be served upon the franchisor at the same time as the request is filed with the commissioner by transmitting such documents in any manner specifically permitted  under  the  terms  of  the  franchise agreement  or, if no such manner is specified in such agreement, then by certified mail, return receipt requested, addressed to  the  officer  or employee   of   the   franchisor  from  whom  the  dealer  has  received correspondence relevant to the claims made in the request. A certificate of service shall accompany the request.  (d) The hearing shall be at such time and place  as  the  commissioner shall  prescribe.  The  commissioner  shall  mail  to the dealer and the franchisor a notice stating the name of the presiding  officer  assigned to  the matter, and the place and time of the hearing. The hearing shall be commenced as soon as practicable, but in no event sooner  than  sixty days from the date of the notice.  (e)  The  notice  shall be sent by ordinary mail to the address of the dealer or attorney shown in the request and to the address to which  the copy  of  the request was sent as shown in the certificate of service or such other address as the franchisor has designated for  receiving  such notices.  The  notice shall advise the franchisor of the right to submit within twenty days of receipt of such notice a short and plain statement of answers to the allegations of the request and of facts on  which  the franchisor  relies  in  defense  of  such  allegations.  Such  answering statement shall be mailed to the commissioner or his or her designee and the dealer at addresses shown on the notice.  (f) The dealer may  submit  within  twenty  days  of  receipt  of  the franchisor's  answering  statement and additional statement of facts and documentary material only to the extent of answering new  matter  raised by  the  franchisor.  Except  as  set  forth  in  paragraph  (g) of this subdivision,   after   receipt  by  a  party  of  the  notice  from  the commissioner, all correspondence and other  communications  relating  to the  dispute  shall  be  with  the  presiding officer with copies to the opposing party.  (g) In accordance with the rules and  regulations  prescribed  by  the commissioner,  each  party  shall disclose to the other all documents or other materials, including  those  that  may  have  been  maintained  in electronic form, that the party intends to introduce at the hearing.   2.  Hearings  and  other proceedings and presiding officers. Except as otherwise set forth in this  section,  hearings  and  other  proceedings authorized  under  this  article  shall comply with article three of the state administrative procedure act and shall be  presided  over  by  the presiding  officer  appointed by the commissioner. The presiding officer shall be admitted to practice as an attorney in the state  of  New  York and shall rule on all motions, procedures and other legal objections.   3.  Resolution  without a hearing. Either party may request resolution of the dispute without a hearing. A request for a resolution  without  a hearing  shall  be  accompanied  by  sufficient  information to permit a determination of whether any unresolved material issue of  fact  exists, and may be accompanied by a legal memorandum. The other party shall have an  opportunity  to  respond.  Such  a  request  shall be granted if the presiding officer determines that no unresolved material issue  of  fact is  presented  in  the  matter.  No hearing shall be conducted until the request for a resolution without a hearing has been determined.   4. Presiding officer decision. The presiding officer  shall  render  a decision  upon  the  conclusion  of  the  hearing  or  without a hearing pursuant to subdivision three of this section not later than ninety days after the close of the hearing  or  the  granting  of  the  request  for resolution  without  a  hearing.  The  decision of the presiding officer shall be based on the  preponderance  of  the  evidence.  The  presiding officer  shall  prepare  a decision which shall include: (a) findings of fact; (b) a determination on each charge; and (c)  in  the  event  of  a determination  of a violation of this article, the remedy to be ordered. The decision of the presiding officer shall be deemed the  determination of the commissioner.   5.  Right  of  appeal. Any party may file an appeal of a determination made pursuant to this section in accordance  with  section  two  hundred sixty-one of this chapter.   6. Litigation costs. In any administrative proceeding pursuant to this section,  each  party shall bear its own litigation costs and attorneys' fees.   7. Penalties. Any party to a proceeding held pursuant to this  section shall comply with the commissioner's decision in such proceeding, unless a  stay  or  extension  of  the  date  for  compliance is granted by the commissioner or a court of competent jurisdiction. If, after  notice  to such  party and an opportunity to respond, the commissioner finds that a party  has  not  complied  with  the  commissioner's  decision  by   the designated  date  of compliance, unless a stay or extension of such date has been granted, the commissioner, in addition to any other enforcement powers the commissioner holds, may assess such party a civil penalty not to exceed one thousand dollars per day of noncompliance. Civil penalties assessed under this section  shall  be  paid  to  the  commissioner  for deposit  in  the  state  treasury,  and  unpaid  civil  penalties may be recovered by the commissioner in a civil  action  in  the  name  of  the  commissioner.  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 dealer or franchisor 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 by a court of record.