Section 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.