§ 471-A — Adjudicatory proceedings

§ 471-a. Adjudicatory proceedings. 1. Request for an adjudicatory\nproceeding. (a) Any franchised motor vehicle dealer who is or may be\naggrieved by a violation of this article may request mediation with the\nfranchisor. The request for mediation shall be served by certified mail,\nor in such manner as the franchisor and franchised motor vehicle dealer\nhave agreed. If the franchisor agrees to mediation, such mediation shall\nproceed in accordance with the terms as agreed upon by the franchisor\nand franchised motor vehicle dealer; provided, however, that if the\nfranchisor and franchised motor vehicle dealer have not agreed upon the\nterms of mediation (i) the franchisor and franchised motor vehicle\ndealer shall select a mediator within seven days of service by the\nfranchised motor vehicle dealer of the request for mediation; (ii) the\nmediation shall be completed within twenty-one days of selection of the\nmediator, or within such period as the franchisor and the franchised\nmotor vehicle dealer shall agree; and (iii) the cost of mediation shall\nbe shared equally by the parties. If the matter is resolved by\nmediation, a written memorandum of the agreement shall be executed by\nthe mediator, the franchisor, and the franchised motor vehicle dealer.\n (b) If the matter has not been resolved by mediation, the franchisor\nand franchised motor vehicle dealer have not agreed to mediation, or the\nmediation has not been completed within the period set forth in\nsubparagraph (ii) of paragraph (a) of this subdivision, the franchised\nmotor vehicle dealer may file with the commissioner a request for an\nadjudicatory proceeding pursuant to this section. The request shall be\nin writing and contain a short and plain statement of the facts relied\nupon by the dealer to support a claim that the franchisor has violated\none or more specific provisions of this article together with a request\nfor a specific remedy other than damages. The request shall be\naccompanied by copies of all correspondence between the dealer and the\nfranchisor and other documents relevant to the claims made in the\nrequest. The request shall be accompanied by a non-refundable filing fee\nof two thousand dollars.\n (c) A true copy of the request with copies of all documents filed with\nthe request shall be served upon the franchisor at the same time as the\nrequest is filed with the commissioner by transmitting such documents in\nany manner specifically permitted under the terms of the franchise\nagreement or, if no such manner is specified in such agreement, then by\ncertified mail, return receipt requested, addressed to the officer or\nemployee of the franchisor from whom the dealer has received\ncorrespondence relevant to the claims made in the request. A certificate\nof service shall accompany the request.\n (d) The hearing shall be at such time and place as the commissioner\nshall prescribe. The commissioner shall mail to the dealer and the\nfranchisor a notice stating the name of the presiding officer assigned\nto the matter, and the place and time of the hearing. The hearing shall\nbe commenced as soon as practicable, but in no event sooner than sixty\ndays from the date of the notice.\n (e) The notice shall be sent by ordinary mail to the address of the\ndealer or attorney shown in the request and to the address to which the\ncopy of the request was sent as shown in the certificate of service or\nsuch other address as the franchisor has designated for receiving such\nnotices. The notice shall advise the franchisor of the right to submit\nwithin twenty days of receipt of such notice a short and plain statement\nof answers to the allegations of the request and of facts on which the\nfranchisor relies in defense of such allegations. Such answering\nstatement shall be mailed to the commissioner or his or her designee and\nthe dealer at addresses shown on the notice.\n (f) The dealer may submit within twenty days of receipt of the\nfranchisor's answering statement and additional statement of facts and\ndocumentary material only to the extent of answering new matter raised\nby the franchisor. Except as set forth in paragraph (g) of this\nsubdivision, after receipt by a party of the notice from the\ncommissioner, all correspondence and other communications relating to\nthe dispute shall be with the presiding officer with copies to the\nopposing party.\n (g) In accordance with the rules and regulations prescribed by the\ncommissioner, each party shall disclose to the other all documents or\nother materials, including those that may have been maintained in\nelectronic form, that the party intends to introduce at the hearing.\n 2. Hearings and other proceedings and presiding officers. Except as\notherwise set forth in this section, hearings and other proceedings\nauthorized under this article shall comply with article three of the\nstate administrative procedure act and shall be presided over by the\npresiding officer appointed by the commissioner. The presiding officer\nshall be admitted to practice as an attorney in the state of New York\nand shall rule on all motions, procedures and other legal objections.\n 3. Resolution without a hearing. Either party may request resolution\nof the dispute without a hearing. A request for a resolution without a\nhearing shall be accompanied by sufficient information to permit a\ndetermination of whether any unresolved material issue of fact exists,\nand may be accompanied by a legal memorandum. The other party shall have\nan opportunity to respond. Such a request shall be granted if the\npresiding officer determines that no unresolved material issue of fact\nis presented in the matter. No hearing shall be conducted until the\nrequest for a resolution without a hearing has been determined.\n 4. Presiding officer decision. The presiding officer shall render a\ndecision upon the conclusion of the hearing or without a hearing\npursuant to subdivision three of this section not later than ninety days\nafter the close of the hearing or the granting of the request for\nresolution without a hearing. The decision of the presiding officer\nshall be based on the preponderance of the evidence. The presiding\nofficer shall prepare a decision which shall include: (a) findings of\nfact; (b) a determination on each charge; and (c) in the event of a\ndetermination of a violation of this article, the remedy to be ordered.\nThe decision of the presiding officer shall be deemed the determination\nof the commissioner.\n 5. Right of appeal. Any party may file an appeal of a determination\nmade pursuant to this section in accordance with section two hundred\nsixty-one of this chapter.\n 6. Litigation costs. In any administrative proceeding pursuant to this\nsection, each party shall bear its own litigation costs and attorneys'\nfees.\n 7. Penalties. Any party to a proceeding held pursuant to this section\nshall comply with the commissioner's decision in such proceeding, unless\na stay or extension of the date for compliance is granted by the\ncommissioner or a court of competent jurisdiction. If, after notice to\nsuch party and an opportunity to respond, the commissioner finds that a\nparty has not complied with the commissioner's decision by the\ndesignated date of compliance, unless a stay or extension of such date\nhas been granted, the commissioner, in addition to any other enforcement\npowers the commissioner holds, may assess such party a civil penalty not\nto exceed one thousand dollars per day of noncompliance. Civil penalties\nassessed under this section shall be paid to the commissioner for\ndeposit in the state treasury, and unpaid civil penalties may be\nrecovered by the commissioner in a civil action in the name of the\ncommissioner. In addition, as an alternative to such civil action and\nprovided that no proceeding for judicial review shall then be pending\nand the time for initiation of such proceeding shall have expired, the\ncommissioner may file with the county clerk of the county in which the\ndealer or franchisor is located a final order of the commissioner\ncontaining the amount of the penalty assessed. The filing of such final\norder shall have the full force and effect of a judgment duly docketed\nin the office of such clerk and may be enforced in the same manner and\nwith the same effect as that provided by law in respect to executions\nissued against property upon judgments by a court of record.\n