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This entry was published on 2014-09-22
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SECTION 471-A
Adjudicatory proceedings
Vehicle & Traffic (VAT) CHAPTER 71, TITLE 4, ARTICLE 17-A
§ 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.