2023 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.