N.Y. Vehicle & Traffic Law § 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.