New York Laws

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Article 17A - NY Vehicle and Traffic Law

FRANCHISED MOTOR VEHICLE DEALER ACT
460.      Legislative findings.
461.      Short title.
462.      Definitions.
463.      Unfair business practices by franchisors.
464.      Obligations of dealers prior to delivery to retail buyers.
465.      Procedures relating to warranties and sales incentives.
466.      Unreasonable restrictions.
467.      Dealership facilities assistance upon termination,
             cancellation or nonrenewal.
468.      Preservation of consumer protection statutes.
469.      Private actions.
469-a.  Powers of the commissioner.
470.      Construction of article.
471.      Notice requirement.
471-a.  Adjudicatory proceedings.
471-b.  Judicial review.
472.      Separability.
473.      Savings clause.
 * NB There are 2 Art 17-A's

 S 460. Legislative  findings.  The legislature finds and declares that
  the distribution and sale of motor vehicles within  this  state  vitally
  affects the general economy of the state and the public interest and the
  public welfare, and that in order to promote the public interest and the
  public  welfare and in the exercise of its police power, it is necessary
  to regulate motor vehicle manufacturers,  distributors  and  factory  or
  distributor  representatives  and  to regulate dealers of motor vehicles
  doing business in this state in order to prevent frauds, impositions and
  other  abuses  upon  its  citizens  and  to  protect  and  preserve  the
  investments and properties of the citizens of this state.

  S 461. Short  title.  This  article shall be known and may be cited as
  the "franchised motor vehicle dealer act".

  S 462. Definitions. Whenever used in this article:
    1.  "Distributor"  means  any  person  who  primarily offers, sells or
  distributes new motor vehicles to franchised motor  vehicle  dealers  or
  maintains distributor representatives within the state.
    2.  "Distributor  branch"  means  a  branch  office  maintained  by  a
  distributor which offers, sells or distributes  new  motor  vehicles  to
  franchised motor vehicle dealers in this state.
    3.  "Distributor  representative" means a representative employed by a
  distributor branch or distributor.
    4. "Factory branch" means a branch office maintained for directing and
  supervising the representatives of the manufacturer or which  office  is
  maintained for the sale of motor vehicles.
    5.  "Factory  representative"  means  a  representative  employed by a
  factory branch for the purpose of making or promoting the sale of  motor
  vehicles  or  for  supervising,  servicing,  instructing  or  contacting
  franchised motor vehicle dealers or prospective motor vehicle dealers.
    6.  "Franchise"  means  a  written  arrangement  for  a  definite   or
  indefinite  period  in  which  a manufacturer or distributor grants to a
  franchised motor vehicle dealer a license to use a trade  name,  service
  mark  or  related  characteristic,  and in which there is a community of
  interest in the marketing of motor vehicles or services related  thereto
  at  wholesale,  retail, by lease or otherwise and/or pursuant to which a
  franchised motor vehicle dealer purchases  and  resells  or  offers  (as
  agent,  principal,  or  otherwise)  products associated with the name or
  mark or related components of the franchise.
    7. "Franchised motor vehicle dealer" means: (a) any person required to
  be registered pursuant to section four hundred  fifteen  of  this  title
  which has been granted a franchise as defined in subdivision six of this
  section,   or  (b)  any  person  engaged  in  the  business  of  selling
  snowmobiles,  all  terrain  vehicles  and/or  personal   watercraft   at
  wholesale or retail who has been granted a franchise; provided, however,
  that  any  person  primarily  engaged  in  the sale of vessels and other
  marine items who  meets  the  definition  of  "dealer"  as  provided  in
  subdivision one of section eight hundred ten of the general business law
  shall  not  be  a  "franchised  motor  vehicle  dealer" pursuant to this
  article.
    8.  "Franchisor"  means  any  manufacturer,  distributor,  distributor
  branch  or  factory  branch,  importer  or  other  person,  partnership,
  corporation, association, or entity, whether resident  or  non-resident,
  which  enters  into  or  is  presently  a  party  to  a franchise with a
  franchised motor vehicle dealer.
    8-a. "Good faith" means, in addition to any common law definitions  of
  that  term, honesty in fact and the observation of reasonable commercial
  standards of fair dealing in the trade.
    9.  "Manufacturer"  means  any   person,   partnership,   corporation,
  association,  factory  branch or other entity engaged in the business of
  manufacturing or assemblying new and unused motor vehicles for  sale  in
  this state.
    10. "Motor vehicle" means: (a) any motor vehicle as defined in section
  one  hundred  twenty-five of this chapter, (b) any snowmobile as defined
  in article forty-seven of this chapter, (c) any all terrain  vehicle  as
  defined  in  article  forty-eight-B of this chapter and (d) any personal
  watercraft as defined in section two of the navigation law, provided the
  commissioner shall have authority to except by regulation vehicles other
  than passenger automobiles, trucks and motorcycles from such definition.
    11. "New motor vehicle" means a  vehicle  sold  or  transferred  by  a
  manufacturer,  distributor  or  dealer,  which  has  not  been placed in
  consumer use or used as a demonstrator.
    12. "New motor vehicle product" means any motor vehicle  which  is  of
  the  same  line  make of motor vehicle as those which the franchisor has
  authorized its existing franchised motor vehicle dealers to  sell  under
  the existing franchises between franchised motor vehicle dealers and the
  franchisor.
    13.  "Line make" means all models of a specific brand of motor vehicle
  manufactured by a manufacturer that may manufacture several brands, each
  of which are a separate line of make; except that, as such term  applies
  to  the sale of any new house coach, means that group or those groups of
  house coaches, as defined by the terms of the written franchise.
    14. Notwithstanding the provisions of section one hundred nineteen  of
  this  chapter, for purposes of this article the term "house coach" shall
  mean any vehicle motivated by a power connected therewith  or  propelled
  by  a power within itself, which is designed to provide temporary living
  quarters, and which is built  onto,  as  an  integral  part  of,  or  is
  permanently  attached  to a motor vehicle chassis, and contains at least
  four of the following  independent  life  support  systems  if  each  is
  permanently  installed  and  designed to be removed only for purposes of
  repair or replacement and meets the standards of the  American  National
  Standards Institute for recreation vehicles:
    (a) a cooking facility with an on-board fuel source;
    (b) a gas or electric refrigerator;
    (c) a toilet with exterior evacuation;
    (d)  a  heating  or  air conditioning system with an on-board power or
  fuel source separate from the vehicle engine;
    (e) a potable water supply system that includes at  least  a  sink,  a
  faucet and a water tank with an exterior service supply connection; and
    (f) a 110-125 volt electric power supply.
    15. "Relevant market area" means:
    (a) if the proposed additional or relocated motor vehicle dealer is to
  be  located  in  a  county  having a population in excess of one hundred
  thousand, the area within the radius of six miles of the  intended  site
  of  the  proposed  or  relocated dealer. Such six mile distance shall be
  determined by  measuring  the  distance  between  the  nearest  surveyed
  boundary  of  the existing new motor vehicle dealer's principal place of
  business and the nearest surveyed  boundary  line  of  the  proposed  or
  relocated new motor vehicle dealer's place of business; or
    (b) if the proposed additional or relocated motor vehicle dealer is to
  be  within  a  county  having  a  population  of  less  than one hundred
  thousand, the area within the radius of ten miles of the  intended  site
  of  the  proposed  or  relocated dealer. Such ten mile distance shall be
  determined by  measuring  the  distance  between  the  nearest  surveyed
  boundary line of the existing new motor vehicle dealer's principal place
  of  business  and  the nearest surveyed boundary line of the proposed or
  relocated new motor vehicle dealer's principal place of business.
    In determining the population of a county, the most recent  census  by
  the  U.S.  Bureau of Census or the most recent population update, either
  from the National Planning Data Corporation or other similar  recognized
  source, shall be used.
    16.  "Captive  finance  source" means any finance source that provides
  automotive-related loans, or purchases retail installment  contracts  or
  lease  contracts  for  motor  vehicles  and  is, directly or indirectly,
  owned, operated or controlled, in whole or in part, by  a  manufacturer,
  factory branch, distributor or distributor branch.
    17. "Termination" and "terminate" as such terms are used in connection
  with  the  removal  of a franchise by a franchisor, means a franchisor's
  proposed termination, cancellation, non-renewal, or rescission.

   S 463.  Unfair  business  practices  by  franchisors.  1. It shall be
  unlawful for any franchisor to directly or indirectly coerce or  attempt
  to coerce any franchised motor vehicle dealer:
    (a)  To  order  or  accept  delivery of any motor vehicle or vehicles,
  appliances, tools, machinery, equipment, parts or  accessories  therefor
  or  any  other  commodity  or  commodities  which  shall  not  have been
  voluntarily ordered by said franchised motor vehicle dealer  except  any
  such items required by a recall campaign.
    (b)  To  order  or  accept  delivery of any motor vehicle with special
  features, appliances, accessories or equipment not included in the  list
  price of said motor vehicle as publicly advertised by the franchisor.
    (c)  To  contribute  or  pay  money  or  anything  of  value  into any
  cooperative or other advertising program or fund unless such program  or
  fund shall be controlled by a dealer or group of dealers.
    (d)  To  participate  in  any  training program unless such program is
  expressly limited to specific information necessary to sell  or  service
  the models of vehicles the dealer is authorized to sell or service under
  the  dealer's  franchise  with  that  franchisor. A franchisor shall not
  unreasonably require an owner or dealer principal  of  a  dealership  to
  attend  any  meeting  or  training  program.  A  franchisor who requires
  participation in a training program  as  authorized  by  this  paragraph
  shall  to  the largest extent practicable make all reasonable efforts to
  limit or reimburse the expenses of a dealer incurred in  attending  such
  program.  Nothing  in  this  paragraph  shall  be deemed to prohibit any
  training program located  within  a  dealer's  own  principal  place  of
  business.
    2.  It shall be unlawful for any franchisor, notwithstanding the terms
  of any franchise contract:
    (a)  To  refuse  to  deliver  in  reasonable  quantity  and  within  a
  reasonable  time  after  receipt  of  a dealer's order to any franchised
  motor vehicle dealer any vehicle covered  by  such  franchise  which  is
  publicly  advertised  by  such  franchisor to be available for immediate
  delivery.  Provided, however, the failure to deliver any  motor  vehicle
  shall  not  be considered a violation of this article if such failure be
  due to acts of God, work stoppages or delays due  to  strikes  or  labor
  difficulties,  freight  embargoes,  shortage  of  materials,  a  lack of
  manufacturing capacity or other causes over which the  franchisor  shall
  have no control.
    (b)  To  directly  or  indirectly  coerce  or  attempt  to  coerce any
  franchised motor vehicle dealer to enter into any  agreement  with  such
  franchisor  or  officer, agent or other representative thereof, or to do
  any other act prejudicial to the monetary interests or  property  rights
  of  said  dealer  by  threatening  to  cancel  any unexpired contractual
  agreement existing between such franchisor and  said  dealer.  Provided,
  however,  that  good faith notice to any franchised motor vehicle dealer
  of said dealer's violation of any terms or provisions of such  franchise
  shall not constitute a violation of this article.
    (c)  To  condition  the  renewal  or  extension  of  a  franchise on a
  franchised motor vehicle dealer's substantial renovation of the dealer's
  place of business or  on  the  construction,  purchase,  acquisition  or
  rental of a new place of business by the franchised motor vehicle dealer
  unless the franchisor has advised the franchised motor vehicle dealer in
  writing  of  its  intent  to impose such a condition within a reasonable
  time prior to the effective date of the  proposed  date  of  renewal  or
  extension  (but  in  no  case  less  than  one  hundred eighty days) and
  provided the franchisor demonstrates the need for  such  change  in  the
  place  of  business and the reasonableness of such demand in view of the
  need to service the public and the economic conditions existing  in  the
  automobile  industry  at  the  time such action would be required of the
  franchised motor vehicle dealer. As  part  of  any  such  condition  the
  franchisor  shall  agree,  in  writing,  to  supply  the  dealer  with a
  reasonable  quantity  and mix of additional new motor vehicles which, as
  determined by a reasonable analysis of market conditions, are  projected
  to  meet  the  sales  levels necessary to support the increased overhead
  incurred by the franchised  motor  vehicle  dealer  by  reason  of  such
  renovation, construction, purchase, acquisition or rental of a new place
  of business.
    (d)  (1)  To terminate, cancel or refuse to renew the franchise of any
  franchised motor vehicle dealer except for due cause, regardless of  the
  terms  of  the  franchise.  A franchisor shall notify a franchised motor
  vehicle dealer, in writing, of its intention  to  terminate,  cancel  or
  refuse to renew the franchise of such dealer at least ninety days before
  the  effective  date  thereof,  stating  the  specific  grounds for such
  termination, cancellation or refusal to renew. In  no  event  shall  the
  term  of  any  such  franchise expire without the written consent of the
  franchised motor vehicle dealer involved prior to the expiration  of  at
  least  ninety  days  following such written notice except as hereinafter
  provided.
    (2) A change in  ownership  of  a  manufacturer  or  distributor  that
  contemplates  a  continuation  of  that line make in the state shall not
  directly  or  indirectly,  through  actions  of  any   parent   of   the
  manufacturer   or   distributor,   subsidiary  of  the  manufacturer  or
  distributor, or common entity  cause  a  termination,  cancellation,  or
  nonrenewal  of  a dealer agreement by a present or previous manufacturer
  or distributor of an  existing  agreement  unless  the  manufacturer  or
  distributor  offers  the  new  vehicle dealer an agreement substantially
  similar to that offered to other dealers of the same line make.
    (3) The provisions of subparagraphs one  and  two  of  this  paragraph
  notwithstanding,  a  franchisor  may  terminate  its  franchise  with  a
  franchised motor vehicle dealer  upon  at  least  fifteen  days  written
  notice  upon the occurrence of any of the following: (i) conviction of a
  franchised motor vehicle dealer, or one of its principal  owners,  of  a
  felony  or  a  crime  punishable  by  imprisonment  which  substantially
  adversely affects the business of the franchisor, or (ii) the failure of
  the franchised motor vehicle dealer to conduct its customary  sales  and
  service  operations  for  a  continuous  period  of seven business days,
  except for acts of God or circumstances beyond the direct control of the
  franchised motor vehicle dealer or when  any  license  required  by  the
  franchised motor vehicle dealer is suspended for a period of thirty days
  or  less, or (iii) insolvency of the franchised motor vehicle dealer, or
  filing of any petition by or against the franchised motor vehicle dealer
  under any bankruptcy or receivership law.
    (e) (1) Any franchised motor vehicle dealer  who  receives  a  written
  notice  of termination or a written notice of a franchisor's demand that
  the dealer substantially renovate an existing place of business, or buy,
  construct or rent a new place of business as a  condition  of  franchise
  renewal or extension may have a review of the demand to change the place
  of  business  or the threatened termination by instituting an action, as
  provided in section four hundred sixty-nine of  this  article.  If  such
  action is commenced within four months of receipt of notice, such action
  shall   serve  to  stay,  without  bond,  the  proposed  termination  or
  renovation or demand to change the place of  business  until  the  final
  judgment  has  been rendered in an adjudicatory proceeding or action, as
  provided in section four hundred sixty-nine of this article.
    (2) The issues to be determined in an  action  commenced  pursuant  to
  subparagraph  one  of this paragraph are whether the franchisor's notice
  of termination was issued with due cause and in good faith.  The  burden
  of  proof  shall be upon the franchisor to prove that due cause and good
  faith exist. The franchisor shall also have the burden of  proving  that
  all  portions  of its current or proposed sales and service requirements
  for the protesting franchised new motor vehicle dealer are reasonable.
    The determination of due cause shall be that there exists  a  material
  breach  by  a  new  motor  vehicle  dealer of a reasonable and necessary
  provision of a franchise if the breach is not cured within a  reasonable
  time  after  written  notice  of  the  breach has been received from the
  manufacturer or distributor.
    (3) The franchisor shall provide notification in writing to the dealer
  that the dealer has one hundred eighty days to correct dealer sales  and
  service  performance  deficiencies or breaches and that the franchise is
  subject to termination under this section if the dealer does not correct
  those deficiencies  or  breaches.  If  the  termination  is  based  upon
  performance  of  the  dealer in sales and service then there shall be no
  due cause if the  dealer  substantially  complies  with  the  reasonable
  performance  provisions of the franchise during such cure period and, no
  due cause if the failure to demonstrate such substantial compliance  was
  due to factors which were beyond the control of such dealer.
    (f)  To  intentionally  resort  to  or  use  any  false  or misleading
  advertisements.
    (g) To sell or offer to sell any new motor vehicle to  any  franchised
  motor  vehicle  dealer  at a lower actual price therefor than the actual
  price offered to any other franchised motor vehicle dealer for the  same
  model vehicle similarly equipped or to utilize any device including, but
  not  limited  to, sales promotion plans or programs which result in such
  lesser actual price. Provided, however, the provisions of this paragraph
  shall not apply to sales to a franchised motor vehicle dealer  for:  (i)
  resale to any unit of government; or (ii) donation or use by said dealer
  in  a driver education program. This paragraph shall not be construed to
  prevent the offering of incentive programs or other  discounts  provided
  such  incentives or discounts are reasonably available to all franchised
  motor vehicle dealers in this state on a proportionately equal basis.
    (h) To sell or offer to sell any new  motor  vehicle  to  any  person,
  except  a  distributor, at a lower actual price therefor than the actual
  price offered and charged to a franchised motor vehicle dealer  for  the
  same  model  vehicle  similarly  equipped or to utilize any device which
  results in such lesser actual price.
    (i) To  sell  or  offer  to  sell  parts  and/or  accessories  to  any
  franchised  motor  vehicle  dealer at a lower actual price therefor than
  the actual price offered to any other franchised  motor  vehicle  dealer
  for  similar  parts  and/or  accessories  for  use  in his own business.
  Provided, however, that nothing herein contained shall be  construed  to
  prevent  a  manufacturer  or  distributor,  or  any  agent thereof, from
  selling to a franchised motor vehicle dealer, who operates and serves as
  a wholesaler of parts and accessories, such parts and accessories as may
  be ordered by such franchised motor vehicle dealer for resale to  retail
  outlets  at  a  lower  actual  price  than  the  actual  price offered a
  franchised motor vehicle dealer who does  not  operate  or  serve  as  a
  wholesaler  of  parts  and  accessories.  This  paragraph  shall  not be
  construed to  prevent  the  offering  of  incentive  programs  or  other
  discounts  provided  the franchisor demonstrates that such incentives or
  discounts are reasonably  available  to  all  franchised  motor  vehicle
  dealers in the state on a proportionately equal basis.
    (j)  To  prevent  or attempt to prevent, by contract or otherwise, any
  franchised motor vehicle dealer from changing the capital  structure  of
  its  dealership,  or  the  means  by  or  through  which it finances the
  operation of its dealership, or finances the acquisition or retention of
  inventory, provided the dealer at all times meets any capital  standards
  agreed  to  between  the dealer and the franchisor and as applied by the
  franchisor  to  all other comparable franchised motor vehicle dealers of
  the franchisor located within the state.
    (k) To unreasonably withhold consent to the sale  or  transfer  of  an
  interest,  in  whole  or  in  part,  to any other person or party by any
  franchised motor vehicle dealer or any partner  or  stockholder  of  any
  franchised  motor  vehicle  dealer.  If such consent to sale or transfer
  shall be withheld  by  the  franchisor,  the  franchisor  shall  provide
  specific  reasons  for  its  withholding of consent within sixty days of
  receipt of the  request  for  such  consent  provided  such  request  is
  accompanied by proper documentation as may reasonably be required by the
  franchisor.  Upon  receipt  of  notice  and reasons for the franchisor's
  withholding of consent, the franchised motor vehicle dealer  may  within
  one  hundred twenty days have a review of the manufacturer's decision as
  provided in section four hundred sixty-nine of this article.
    (l) To require a franchised  motor  vehicle  dealer  to  assent  to  a
  release,  assignment,  novation,  waiver or estoppel which would relieve
  any person from liability imposed under this article, provided that this
  paragraph shall not be construed to prevent a franchised  motor  vehicle
  dealer from entering into a valid release or settlement agreement with a
  franchisor.
    (m)  (1)  To  deny  to  the surviving spouse or heirs of an individual
  franchised motor vehicle dealer or of a  partner  of  an  unincorporated
  franchised  motor  vehicle  dealer  or  of  a stockholder of a corporate
  franchised motor vehicle dealer the right to succeed to the interest  of
  the  decedent  in such franchised motor vehicle dealership enterprise or
  directly  or  indirectly  to  interfere  with,  hinder  or  prevent  the
  continuance  of  the  business of the franchised motor vehicle dealer by
  reason of such succession to the interest  of  the  decedent.  Provided,
  however,  that  the continuation of the business of the franchised motor
  vehicle dealer shall be conducted under competent management  acceptable
  to the franchisor, whose acceptance shall not be unreasonably withheld.
    (2)  Notwithstanding  the foregoing, in the event the franchised motor
  vehicle dealer and franchisor have duly executed an agreement concerning
  succession  rights  prior  to  the  individual  dealer's,  partner's  or
  stockholder's  death  and  if such agreement has not been revoked by the
  franchised motor vehicle dealer, such agreement shall be observed,  even
  if  it designates an individual other than the surviving spouse or heirs
  of the decedent.
    (n) To fail to  indemnify  and  hold  harmless  its  franchised  motor
  vehicle dealers against any losses or damages including, but not limited
  to,  court  costs  and attorneys' fees arising out of actions, claims or
  proceedings including, but not  limited  to,  those  based  upon  strict
  liability,   negligence,   misrepresentation,   warranty  (expressed  or
  implied) or revocation as described in  section  2-608  of  the  uniform
  commercial  code, where the action, claim or proceeding directly relates
  to the manufacture, assembly or design of new motor vehicles,  parts  or
  accessories  or  other  functions  of  the franchisor including, without
  limitation, the selection by the franchisor of parts or  components  for
  the  vehicle  or  any  damages  to  merchandise or vehicles occurring in
  transit  where  the   carrier   is   designated   by   the   franchisor,
  notwithstanding  the  terms  of  any  franchise. If the action, claim or
  proceeding includes independent allegations against the franchised motor
  vehicle dealer, the franchisor shall  bear  only  that  portion  of  the
  costs,  fees  and judgment which is directly related to the manufacture,
  assembly or design of  the  vehicle,  parts  or  accessories,  or  other
  function  of  the  franchisor beyond the control of the franchised motor
  vehicle dealer.
    (o)  (1)  Upon  a  termination  of  a  franchise  by  a  franchisor or
  franchised motor vehicle dealer under this article, to refuse to  accept
  a  return  of new and unused current model motor vehicle inventory which
  has been acquired from the franchisor, new and unused  noncurrent  model
  motor  vehicle  inventory  which  has  been acquired from the franchisor
  within one hundred twenty days of the effective date of the termination;
  supplies, parts, equipment and furnishings purchased from the franchisor
  or its approved  sources  and  special  tools.  The  obligation  of  the
  franchisor  shall  be  limited  to  the repurchase of the above property
  which is unaltered and undamaged, in good and useable condition, and, in
  the case of supplies, parts and  equipment  to  those  items  which  are
  currently   listed   in   the  franchisor's  supplies  and  parts  list.
  Furthermore, the obligation of the  franchisor  to  repurchase  supplies
  upon  a  termination,  cancellation  or nonrenewal by a franchised motor
  vehicle dealer shall be limited to supplies mandated by the  franchisor.
  Parts  eligible  for  repurchase  shall  include  parts  which have been
  renumbered in the current parts list but which are identical  in  design
  and  material to the currently numbered part. The return rights afforded
  the  franchised  motor  vehicle  dealer  under  the  provisions  of  the
  paragraph  shall  be  in  addition  to  those,  if  any, provided in the
  franchise agreement.
    (2) The franchisor shall pay fair and reasonable compensation for  the
  above  described  property  upon  repurchase.  In  the case of new motor
  vehicle  inventory,  accessories  and   parts,   fair   and   reasonable
  compensation shall in no instance be less than the net acquisition price
  paid  by  the  franchised  motor vehicle dealer to the franchisor or its
  approved sources. Upon a termination of a  franchise  by  a  franchisor,
  within thirty days of such termination, the franchisor shall send to the
  franchised motor vehicle dealer instructions on the methodology by which
  the  franchised  motor  vehicle  dealer  must  ship  the above described
  property to the franchisor; the franchisor shall then remit payment  for
  such  property  to the franchised motor vehicle dealer within sixty days
  after receipt of such property.
    (3) Upon a termination of a franchise by a  franchised  motor  vehicle
  dealer  where  the  franchise consists primarily of the distribution and
  sale of house coaches, the franchisor's repurchase obligations set forth
  in this paragraph shall not apply.
    (p)  To  refuse  to  repurchase  for  cost,  including  transportation
  charges,  a  new  vehicle  which  has  been substantially damaged by the
  franchisor or its agent; or to sell or transfer to  a  franchised  motor
  vehicle  dealer  a new motor vehicle which has been subjected to repairs
  with a retail value in excess of five  percent  of  the  lesser  of  the
  manufacturer's  or  distributor's  suggested  retail  price  where  such
  repairs are performed  after  shipment  from  the  franchisor  including
  damage  to  the  vehicle  while  in  transit  without  so  notifying the
  franchised motor vehicle dealer  to  whom  such  new  motor  vehicle  so
  repaired is sold or transferred. Such notice shall be in writing, advise
  of such repairs, and be provided prior to the receipt of any payment for
  such motor vehicle. If the franchisor shall fail to provide such notice,
  any  franchised  motor vehicle dealer suffering a loss by reason of such
  failure shall be entitled  to  reimbursement  from  the  franchisor  who
  failed to provide such notice.
    (q) To provide directly or to grant to any person the right to perform
  warranty  or  recall  service on any new motor vehicle line other than a
  house coach line but deny to said person the right to purchase the motor
  vehicles of that line for resale to consumers in this state as new motor
  vehicles provided, however, that this paragraph  shall  not  prohibit  a
  franchisor from:
    (1)  authorizing  warranty service by employees of a fleet operator or
  governmental entity on owned vehicles; or
    (2) authorizing such other persons to perform warranty service as  the
  franchisor  deems  necessary  to  protect  its  interests as they may be
  affected by section one hundred ninety-eight-a of the  general  business
  law.
    A "fleet operator" shall be required to own for its own use or for the
  use of others the minimum number of vehicles of the current or preceding
  model  year manufactured or sold by the same franchisor as determined by
  the standards of such franchisor applied on  a  general  and  consistent
  basis   to   substantially  all  fleet  operators.  Notwithstanding  the
  preceding, a franchisor which withdraws from the  United  States  market
  shall  continue  to allow its former franchised motor vehicle dealers to
  continue servicing and supplying  parts,  including  service  and  parts
  supplied under the franchisor's warranty to vehicle owners, for a period
  of  at  least  five  years  after such withdrawal from the United States
  market.
    (r) To establish or attempt to establish the actual resale  price  for
  any  new  motor vehicle, part or accessory charged by a franchised motor
  vehicle dealer in the state, provided, however, nothing contained herein
  shall prohibit publication of recommended resale  prices  or  historical
  information by a franchisor.
    (s)  To grant a commission to any person other than a franchised motor
  vehicle dealer within the state involved in the  sale  of  a  new  motor
  vehicle  by such franchised motor vehicle dealer without said franchised
  motor vehicle dealer's written consent. This prohibition shall not apply
  to sales incentive programs for employees of  franchised  motor  vehicle
  dealers  as  long  as  the  payments  are made by the franchisor to such
  employees and not charged to the dealer.
    (t) To require or attempt to require by the  terms  of  the  franchise
  that   any   dispute   arising   out   of  or  in  connection  with  the
  interpretation, performance or nonperformance  of  the  parties  to  the
  franchise  or  in any way related to the franchise be determined through
  the application of any other state's laws.
    (u) To use any subsidiary corporation, affiliated corporation, captive
  finance  source  or  any  other  controlled  corporation,   partnership,
  association  or  person  to  accomplish what would otherwise be unlawful
  conduct under this article on the part of the franchisor.
    (v) To use  a  CSI  (customer  satisfaction  index)  or  other  system
  measuring  a  customer's  degree of satisfaction with a franchised motor
  vehicle dealer as a sale or service provider unless any such  system  is
  designed  and implemented in such a way that it is fair and equitable to
  both the franchisor and the franchised  motor  vehicle  dealer.  In  any
  dispute  between  a franchisor and a franchised motor vehicle dealer the
  party claiming the benefit of the system as justification  for  acts  in
  relation  to  the  franchise  shall have the burden of demonstrating the
  fairness and equity of the system both in design and  implementation  in
  relation  to  the  pending dispute. Upon request of any franchised motor
  vehicle dealer, a franchisor shall disclose in writing to such dealer  a
  description  of how that system is designed and all relevant information
  pertaining to such dealer used in the application of that system to such
  dealer.
    (w) To withhold from a franchised motor vehicle  dealer  a  new  motor
  vehicle product of the same line make which the franchised motor vehicle
  dealer  is  authorized  to  sell  under its franchise. Provided that the
  failure to deliver any motor vehicle shall not be  considered  to  be  a
  violation  of this article if such failure is due to an act of God, work
  stoppages or delays  due  to  strikes  or  labor  difficulties,  freight
  embargoes,  shortages of materials, a lack of manufacturing capacity, or
  other  causes  over  which  the  franchisor  shall  have  no  control. A
  franchised motor vehicle dealer shall be entitled to  sell  and  service
  all  the  manufacturer's  new  motor vehicles which the franchised motor
  vehicle  dealer  is  authorized  to  sell  pursuant  to  the  franchise,
  provided, however, a franchisor may impose reasonable facility, capital,
  training,  tools  and parts inventory requirements as a condition to the
  franchised motor vehicle dealer being permitted to sell such  new  motor
  vehicle   products.  Conditions  imposed  by  the  franchisor  shall  be
  reasonably applied to all  of  its  franchised  motor  vehicle  dealers.
  Franchised  motor  vehicle  dealers  who  are  presently  parties  to  a
  franchise with the franchisor shall be offered the  right  to  sell  and
  service  any  new  motor  vehicle product of the same line make owned or
  generally distributed by  such  franchisor's  franchised  motor  vehicle
  dealer  within such franchised motor vehicle dealer's designated area of
  responsibility designated in the franchise agreement before  any  person
  not  a  party  to such a franchise for the sale of motor vehicles within
  such area of responsibility is offered or granted a  franchise  to  sell
  such  new  motor  vehicle  product  from  a location within such area of
  responsibility.
    (x) To require a franchised motor vehicle dealer to agree to a term or
  condition in a franchise, or as a  condition  to  the  offer,  grant  or
  renewal of the franchise, lease or agreement, which:
    (1)  unless  preempted  by  federal law, requires the franchised motor
  vehicle  dealer  to  waive  trial  by  jury  in  actions  involving  the
  franchisor; or
    (2)  unless  preempted  by  federal  law,  specifies the jurisdiction,
  venues or tribunals in  which  disputes  arising  with  respect  to  the
  franchise,  lease  or  agreement  shall  or  shall  not be submitted for
  resolution or otherwise prohibits a franchised motor vehicle dealer from
  bringing an action in a particular forum otherwise available.
    (y) Subject to the provisions of paragraph (w) of this subdivision, to
  sell or offer to sell or lease or offer to lease a motor  vehicle  other
  than  to  a  franchised  motor  vehicle  dealer in this state; provided,
  however, that this paragraph shall not apply to sales or leases  of  new
  motor  vehicles  made by a franchisor to its employees, immediate family
  members of employees, retirees or immediate family members  of  retirees
  which  are  hereby  authorized notwithstanding the provisions of section
  four hundred fifteen of this title.  Nothing  in  this  paragraph  shall
  prohibit  a  franchisor  from  utilizing  direct  marketing  designed to
  generate leads via mail, phone, or any other medium, provided that leads
  developed thereby are referred to the franchised motor  vehicle  dealers
  in  this  state  and in proximity to the consumer pursuant to a fair and
  equitable system of allocating such leads or  to  the  franchised  motor
  vehicle  dealer  as  specified  by  the consumer. The provisions of this
  paragraph shall not apply to  franchisors  of  house  coaches  when  the
  franchisor  does  not  have  any  franchised house coach dealers in this
  state.
    (z) To charge back or otherwise hold liable a franchised motor vehicle
  dealer for sales incentives or charges related to a  new  motor  vehicle
  sold  by  the franchised motor vehicle dealer and subsequently exported,
  providing such dealer can demonstrate that he  exercised  due  diligence
  and  that  the  sale was made in good faith and without knowledge of the
  purchaser's intention to export the motor vehicle, or that  such  dealer
  reasonably relied on approvals from the franchisor to complete a sale. A
  franchised  motor  vehicle dealer which causes a new motor vehicle to be
  registered in this state  or  in  a  foreign  state  and  causes  to  be
  collected  the  appropriate  sales and use tax shall be presumed to have
  exercised due diligence.
    (aa) To: (1) sell directly to a franchised motor vehicle dealer or, to
  or  through  a  franchised  motor vehicle dealer in which the franchisor
  owns any interest or controls the management,  directly  or  indirectly,
  motor  vehicles, parts, warranties, or services at a price that is lower
  than the price which the franchisor  charges  to  all  other  franchised
  motor vehicle dealers; or
    (2)  sell  directly  to  a  consumer  at retail new original equipment
  manufacturer's parts (OEM) at a price that is lower than the price which
  the franchisor makes available to franchised motor vehicle dealers; or
    (3) otherwise provide a franchised motor vehicle dealer in  which  the
  franchisor  owns  any  interest  or controls the management, directly or
  indirectly, goods or services at a price that is lower  than  the  price
  charged to all other franchised motor vehicle dealers.
    (bb) On and after the effective date of this paragraph, to acquire any
  interest  in any additional motor vehicle dealer in this state, with the
  exception of stock in a publicly held dealer when ownership  is  passive
  and  for  investment  purposes  only; provided, however, that nothing in
  this paragraph shall prohibit a franchisor and its affiliates  that  own
  an interest in a franchised motor vehicle dealership that operates or is
  approved  to operate, within one hundred twenty days after the effective
  date of this paragraph, from selling or servicing a new line make of the
  franchisor or its affiliates that was not distributed in this  state  as
  of the effective date of this paragraph. Provided, further, that nothing
  in  this  paragraph  shall  prohibit  a  franchisor  from  acquiring any
  interest in any franchised motor vehicle dealership:
    (1) when operating such franchise  for  a  temporary  period,  not  to
  exceed  one  year,  during  the  transition  from one owner of the motor
  vehicle dealership to another, provided, however,  that  such  temporary
  period  may  be extended once for an additional period not to exceed one
  year for good cause. Provided that for franchisors of house coaches, the
  period of temporary ownership of a franchised house coach dealership may
  be extended in one year increments for good cause shown, except that the
  aggregate of such extensions shall not exceed five years; or
    (2) when operating such franchise temporarily under  a  plan  with  an
  independent individual who is obligated to make a significant investment
  in  the dealership that is subject to loss and has an ownership interest
  or expects to acquire  full  ownership  in  a  reasonable  period  under
  reasonable terms and conditions, provided that a reasonable period shall
  be presumed to not exceed eight years.
    (cc)(1) To enter into a franchise establishing an additional new motor
  vehicle  dealer  or relocating an existing new motor vehicle dealer into
  the relevant market area of an existing franchise motor  vehicle  dealer
  of  the same line make unless the franchisor provides notice pursuant to
  the terms of this subdivision. All dealers that have a  relevant  market
  area  that  encompasses  the  proposed site shall be entitled to written
  notice, via certified mail return receipt requested, informing  them  of
  the  proposed  addition  or relocation. Any new motor vehicle dealer may
  institute an action as provided in section four  hundred  sixty-nine  of
  this article to protest the establishment or relocation of the new motor
  vehicle dealer following receipt of such notice, or following the end of
  any  appeal  procedure provided by the franchisor. In any action brought
  by the dealer, the franchisor shall have  the  burden  of  proving  that
  there exists good cause for any such addition or relocation. Institution
  of  an  action pursuant to this subdivision shall serve to stay, without
  bond, the proposed addition or relocation until  a  final  judgment  has
  been  rendered  in  a  proceeding  or action as provided in section four
  hundred sixty-nine of this article.
    (2) This subdivision shall not apply to:
    (i)  the  relocation  or  replacement,  other  than a replacement of a
  dealer who has moved within such area, of an existing new motor  vehicle
  dealer  within that dealer's own existing relevant market area, provided
  that the relocation not be to a site within the relevant market area  of
  a  licensed  new  motor  vehicle  dealer for the same line make of motor
  vehicle, unless such existing franchise was  previously  located  within
  such new motor vehicle dealer's relevant market area; or
    (ii)  the  addition of a new motor vehicle dealer or the establishment
  of a replacement new motor vehicle dealer, other than a replacement of a
  dealer who has moved within such area, at  or  within  two  miles  of  a
  location  at  which  a  former licensed new motor vehicle dealer for the
  same line make of new motor vehicle  had  ceased  operating  within  the
  previous two years; or
    (iii)  the  relocation  of an existing new motor vehicle dealer within
  two miles of the existing site of the new motor  vehicle  dealership  if
  the  franchise  has  been operating on a regular basis from the existing
  site for a minimum of three years immediately preceding the  relocation;
  or
    (iv)  the  relocation  of  a new motor vehicle dealer of the same line
  make if that dealer or replacement dealer is moving further away from  a
  motor vehicle dealer of of the same line make.
    (3)  In  determining  whether  good cause has been established for not
  entering into or relocating an additional new motor vehicle  dealer  for
  the  same  line make, there shall be individual findings with respect to
  the following:
    (i) the permanency of the investment of both the existing and proposed
  additional new motor vehicle dealers;
    (ii) growth or decline in population, density of population,  and  new
  car registrations in the area;
    (iii) effect on the consuming public in the area;
    (iv)  whether  it is injurious or beneficial to the public welfare for
  an additional new motor vehicle dealer to be established;
    (v) whether the new motor vehicle dealers of the  same  line  make  in
  that  area  are  providing  adequate competition and convenient customer
  care for the motor vehicles of the same line make including the adequacy
  of motor vehicle sales and  service  facilities,  equipment,  supply  of
  motor vehicle parts, and qualified service personnel;
    (vi)  whether  the  establishment  of  an additional new motor vehicle
  dealer or relocation of an existing new  motor  vehicle  dealer  in  the
  relevant  market  area would increase competition in a manner beneficial
  to the long-term public interest;
    (vii) the effect on the dealer that proposed to relocate; and
    (viii) any other factor which may be deemed material by the finder  of
  fact to the unique facts and circumstances presented.
    (dd)  To unreasonably prevent or refuse to approve the relocation of a
  dealership to another site  within  that  dealership's  relevant  market
  area.  The  dealership  must  provide prior written notice providing the
  address of the proposed new location and a site  plan  of  the  proposed
  facility.  The  franchisor  must,  within  sixty days of receipt of such
  information, grant or deny the dealer's relocation request.  Failure  to
  timely deny the request shall be deemed consent to the relocation.
    (ee)  To  fail  to  reimburse  a dealer in full for the actual cost of
  providing a loaner vehicle to any  customer  who  is  having  a  vehicle
  serviced  at the dealership if the provision of such a loaner vehicle is
  required by the franchisor. For the purposes of this  paragraph,  actual
  cost  shall  not  exceed the average cost in the dealer's region for the
  rental of a substantially similar make and model as  the  vehicle  being
  serviced.
    (ff)(1) To modify the franchise of any franchised motor vehicle dealer
  unless  the  franchisor notifies the franchised motor vehicle dealer, in
  writing, of its intention to modify the  franchise  of  such  dealer  at
  least  ninety  days  before  the  effective  date  thereof,  stating the
  specific grounds for such modification.
    (2)  For  purposes  of  this   paragraph,   the   term   "modify"   or
  "modification"  means any change or replacement of any franchise if such
  change or replacement may substantially and  adversely  affect  the  new
  motor  vehicle  dealer's  rights,  obligations,  investment or return on
  investment.
    (3) If any franchised motor vehicle  dealer  who  receives  a  written
  notice  of  modification  institutes an action within one hundred twenty
  days of receipt of such notice  as  provided  in  section  four  hundred
  sixty-nine   of  this  article  to  have  a  review  of  the  threatened
  modification, such  action  shall  serve  to  stay,  without  bond,  the
  proposed  modification  until  a  final judgment has been rendered in an
  adjudicatory proceeding or action as provided in  section  four  hundred
  sixty-nine of this article. A modification is deemed unfair if it is not
  undertaken  in  good  faith;  is not undertaken for good cause; or would
  adversely and substantially alter the rights, obligations, investment or
  return on investment of the franchised motor  vehicle  dealer  under  an
  existing  franchise  agreement. In any action brought by the dealer, the
  franchisor shall have the burden of proving that  such  modification  is
  fair and not prohibited.
    (gg)  To  use  an  unreasonable,  arbitrary  or  unfair sales or other
  performance standard in determining a franchised motor vehicle  dealer's
  compliance  with  a  franchise  agreement.  Before  applying  any sales,
  service or other performance standard  to  a  franchised  motor  vehicle
  dealer,  a  franchisor  shall  communicate  the  performance standard in
  writing in a clear and concise manner.
    (hh) To require that a  franchised  motor  vehicle  dealer  contribute
  monetarily  to  any  program  or  promotion  without first receiving the
  written consent of the franchised motor vehicle dealer to participate in
  such program or promotion. For purposes of this paragraph,  the  written
  consent  specific  to  the  particular  program  or  promotion  must  be
  executed, by means of handwritten, typed or electronic signature, within
  sixty days prior to the start of the particular  program  or  promotion,
  provided,  however,  that  consent  shall  not  be  required to continue
  participation in a program or promotion to which the  dealer  has  given
  written  consent to renewal, and provided further, that the dealer shall
  be able to terminate such renewal upon reasonable written notice  within
  thirty days following the start or renewal of the program or promotion.
    2-a.  On  and  after  the  effective  date  of  this subdivision, if a
  franchisor notifies a franchised motor vehicle dealer,  in  writing,  of
  its  decision  to monitor the continued viability of the dealership, the
  franchisor shall include in such notice the specific reasons upon  which
  the franchisor's decision is based.
    2-b.  It  shall  be  unlawful  for any franchisor to provide financial
  information particular to a franchised motor vehicle  dealer,  including
  but  not  limited  to,  selling  prices and sales margins, that has been
  collected from  such  franchised  motor  vehicle  dealer  to  any  other
  franchised  motor  vehicle  dealer  including a franchised motor vehicle
  dealer in which the franchisor owns any interest or  controls,  directly
  or  indirectly,  the  management  thereof.  Nothing  contained  in  this
  subdivision shall be deemed to prevent any  franchisor  from  collecting
  and  distributing  any such financial information in an aggregate manner
  provided that the information from any motor  vehicle  dealer  has  been
  combined  with the information from one or more franchised motor vehicle
  dealers  such that the financial information from a particular dealer is
  no longer identifiable to such dealer.
    3. In any action or proceeding instituted pursuant to  the  provisions
  of  this  section, there shall be available to the franchisor all of the
  defenses provided for under section thirteen-b of title fifteen,  United
  States code, known as the Robinson-Patman Act.

  S 464. Obligations  of  dealers  prior  to  delivery to retail buyers.
  Every franchisor shall specify in writing the delivery  and  preparation
  obligations of its franchised motor vehicle dealers prior to delivery of
  new motor vehicles to retail buyers.

   S 465. Procedures  relating  to  warranties  and  sales incentives. 1.
  Every franchisor shall properly fulfill any  warranty  agreement  and/or
  franchisor's   service   contract  and  shall  compensate  each  of  its
  franchised motor vehicle dealers for warranty parts and labor in amounts
  which reflect fair  and  reasonable  compensation  for  such  work.  All
  warranty claims and/or claims under a franchisor's service contract made
  by  franchised  motor  vehicle  dealers shall be paid within thirty days
  following  their  approval.  For   parts   reimbursement,   other   than
  components,  systems, fixtures, appliances, furnishings, accessories and
  features of a  house  coach  that  are  designed,  used  and  maintained
  primarily   for   nonvehicular   residential  purposes,  and  for  labor
  reimbursement, fair and reasonable compensation shall not be  less  than
  the  price  and  rate charged by the franchised motor vehicle dealer for
  like services to non-warranty and/or non-service contract customers. For
  purposes of this section, the price and rate charged by  the  franchised
  motor  vehicle  dealer for parts may be established by submitting to the
  franchisor one  hundred  sequential  nonwarranty  customer-paid  service
  repair  orders  or  the  number  of sequential nonwarranty customer-paid
  service repair orders written within a ninety day period,  whichever  is
  less,  covering repairs made no more than one hundred eighty days before
  the submission, and declaring the  price  and  rate,  including  average
  markup  for  the  franchised  motor  vehicle dealer as its reimbursement
  rate. The reimbursement rate so declared shall  go  into  effect  thirty
  days  following  the  declaration  and  shall be presumed to be fair and
  reasonable, however a franchisor may rebut such presumption  by  showing
  that such rate so established is unfair and unreasonable in light of the
  practices  of all other franchised motor vehicle dealers in the vicinity
  offering the same line make. The franchised motor vehicle  dealer  shall
  not  request a change in the reimbursement rate more often than twice in
  each calendar year. In establishing the labor  reimbursement  rate,  the
  franchisor  shall  not  require  a  franchised  motor  vehicle dealer to
  establish said rate by a methodology, or by requiring information,  that
  is  unduly  burdensome  or time consuming to provide, including, but not
  limited to, a transaction by transaction calculation.
    2. All warranty or sales incentive claims shall be either approved  or
  disapproved  within thirty days after their receipt. When any such claim
  is disapproved the franchised motor vehicle dealer shall be notified  in
  writing  of  its  disapproval within said period. Each such notice shall
  state the specific grounds upon which the disapproval is based.  Failure
  to disapprove a claim within thirty days shall be deemed approval.
    3. No franchisor shall conduct an audit or charge back any warranty or
  sales  incentive  payment  or  otherwise hold a franchised motor vehicle
  dealer liable for charges more than one year, or five years in the  case
  of fraud, after the date the franchisor made such payment to the dealer.
    4.  A  franchisor  shall  not  charge  a dealer back subsequent to the
  payment of a warranty or sales incentive claim unless  a  representative
  of  the franchisor has met in person at the dealership, or by telephone,
  with an officer or employee of the dealer designated by the  dealer  and
  explained  in detail the basis for each of the proposed charge backs and
  thereafter given the dealer's representative a reasonable opportunity at
  the meeting, or during the  telephone  call,  to  explain  the  dealer's
  position relating to each of the proposed charge backs. In the event the
  dealer was selected for audit or review on the basis that some or all of
  the  dealer's  claims were viewed as excessive in comparison to average,
  mean or aggregate data accumulated by the franchisor, or in relation  to
  claims  submitted by a group of other franchisees, the franchisor shall,
  at or  prior  to  the  meeting  or  telephone  call  with  the  dealer's
  representative,  provide  the dealer with a written statement containing
  the basis or methodology upon which the dealer was selected for audit or
  review.
    5.  A  franchisor shall not deny or charge back a payment for warranty
  work claimed by the dealer unless the franchisor satisfies its burden of
  proof that the dealer did not make a good faith effort  to  comply  with
  the  reasonable  written procedures of the franchisor or that the dealer
  did not actually perform the work.
    6. A franchisor shall not  deny  or  charge  back  a  sales  incentive
  payment  made  to  a  dealer  unless  the  claim was materially false or
  fraudulent or that the dealer  failed  to  reasonably  substantiate  the
  claim   either   in   accordance   with  the  manufacturer's  reasonable
  procedures.
    7. After all internal dispute resolution  processes  provided  through
  the  franchisor  have been resolved, the franchisor shall give notice to
  the dealer of the final amount of a proposed warranty or sales incentive
  charge back. If the dealer institutes an action pursuant to this article
  within thirty days of receipt of such notice, the proposed  charge  back
  shall  be  stayed,  without bond, during the pendency of such action and
  until the final judgment has been rendered in an adjudicatory proceeding
  or action as  provided  in  section  four  hundred  sixty-nine  of  this
  article.

  S 466. Unreasonable  restrictions.  1.  It  shall  be  unlawful  for a
  franchisor directly or indirectly to impose unreasonable restrictions on
  the franchised motor vehicle dealer relative to transfer, sale, right to
  renew  or  termination  of  a  franchise,   discipline,   noncompetition
  covenants, site-control (whether by sublease, collateral pledge of lease
  or  otherwise),  right of first refusal to purchase, option to purchase,
  compliance with subjective standards and assertion of legal or equitable
  rights with respect to its franchise or dealership.
    2. It shall be deemed an unreasonable restriction  upon  the  sale  or
  transfer  of a dealership for a franchisor (i) directly or indirectly to
  prevent or attempt to prevent a franchised  motor  vehicle  dealer  from
  obtaining  the  fair  value  of  the  franchise or the fair value of the
  dealership business as a going concern; or (ii) to refuse to approve the
  sale or transfer of a dealership due to the  fact  that  the  franchised
  motor  vehicle  dealer  owns,  has an investment in, participates in the
  management of or holds a franchise for the sale or  service  of  another
  line  make  of  new motor vehicles, or that the franchised motor vehicle
  dealer  has  established  another  franchise  in  the  same   dealership
  facilities  for  the  sale  or service of another line make of new motor
  vehicles prior to the effective date of this  paragraph,  or  the  other
  franchise has been approved in writing by the franchisor.

   S 467. Dealership facilities assistance upon termination, cancellation
  or  nonrenewal. Upon a permitted termination, cancellation or nonrenewal
  by the franchisor, unless such termination, cancellation  or  nonrenewal
  is  for a reason or reasons set forth in subparagraph three of paragraph
  (d) of subdivision two of  section  four  hundred  sixty-three  of  this
  article,  the  franchisor  shall assume the obligations for any lease of
  the dealership facilities or arrange for a new lease of  the  dealership
  facilities  or  pay the dealer the lease payments for one year, whatever
  is less, or negotiate a lease termination for the dealership  facilities
  at  the  franchisor's  expense.  If  the  facilities  are  owned  by the
  franchised motor vehicle dealer, the franchisor shall pay such dealer  a
  sum equivalent to the reasonable rental value of the dealership facility
  for  one  year,  provided  the  franchised  motor  vehicle  dealer shall
  mitigate damages in the case of an owned facility.

  S 468. Preservation of consumer protection statutes. Nothing contained
  herein  shall in any way be construed or interpreted to modify, limit or
  affect the full powers and duties heretofore  or  hereafter  granted  to
  consumer protection agencies created by statute or regulation enacted by
  state,  city, county or local municipalities and the rights of consumers
  to make complaints thereto, it being  the  intent  of  this  article  to
  provide  for  the  settlement and/or determination of disputes under the
  franchised  motor  vehicle  dealer  act  as  between   franchisors   and
  franchised motor vehicle dealers as defined herein.

  S 469. Private actions. 1. A franchised motor vehicle dealer who is or
  may  be  aggrieved  by  a violation of this article shall be entitled to
  request an  adjudicatory  proceeding,  as  prescribed  in  section  four
  hundred  seventy-one-a of this article, or in lieu thereof, sue for, and
  have, injunctive relief and damages in any court  of  the  state  having
  jurisdiction   over   the  parties.  In  any  such  judicial  action  or
  proceeding, the court may award necessary costs and disbursements plus a
  reasonable attorney's fee to any party.
    2. Whenever a franchise provides for the use of arbitration to resolve
  a controversy arising out of or relating to such  contract,  arbitration
  may  be  used  to settle such controversy only if after such controversy
  arises all parties  to  such  controversy  consent  in  writing  to  use
  arbitration to settle such controversy.

   S 469-a.  Powers  of  the  commissioner.  1. In addition to any other
  powers and duties of the commissioner set forth  in  this  chapter,  the
  commissioner  shall  have  the  power  to enforce the provisions of this
  article, in accordance with section four hundred seventy-one-a  of  this
  article.
    2.  The commissioner shall prescribe such rules and regulations as the
  commissioner shall deem necessary for the implementation of this section
  and section four hundred seventy-one-a of this article.

   S 470. Construction  of  article. The provisions of this article shall
  be in addition to and not in lieu of  those  contained  in  the  uniform
  commercial code.

   S 471. Notice  requirement.  1.  A  dealer shall not display for sale,
  exchange or sell any new motor vehicle, or any used motor vehicle,  that
  was  originally  sold  by  a  manufacturer  for distribution outside the
  United States without prominently displaying  a  label  on  the  vehicle
  stating  that  "This  vehicle  was  not  sold  by  the  manufacturer for
  distribution within the United States. It may not have the same standard
  features, emissions equipment,  safety  equipment,  optional  equipment,
  specifications  and  warranty,  or  otherwise  be identical to the other
  motor vehicles which are sold by the manufacturer  for  distribution  in
  the United States".
    2.  Any  person who violates this section and any person who knowingly
  aids and abets any such violation of this section shall be liable to any
  person aggrieved to the extent of  any  additional  margin  obtained  or
  obtainable on such purchase and resale.

  S 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.

   S 471-b.  Judicial  review. A decision of the presiding officer under
  section four hundred seventy-one-a of this article shall be  subject  to
  review   by  the  supreme  court  in  the  manner  provided  by  article
  seventy-eight of the civil practice law and rules.

   S 472. Separability.  If  any part or provision of this article or the
  application thereof to any person or circumstance be adjudged invalid by
  any court of competent jurisdiction, such judgment shall be confined  in
  its operation to the part, provision or application directly involved in
  the  controversy  in  which  such  judgment shall have been rendered and
  shall not affect or impair the validity of the remainder of this article
  or the application thereof to other persons or circumstances.

  S 473. Savings clause. Nothing in this article shall prohibit, limit,
  restrict or impose conditions on:
    1.  The  business  activities  (including,  without  limitation,   the
  dealings  with motor vehicle manufacturers and their representatives and
  affiliates) of any person that is primarily engaged in the  business  of
  rental  of  motor vehicles and industrial and construction equipment and
  activities incidental to that  business  provided  that  (a)  any  motor
  vehicles  sold  by  such  person are limited to used motor vehicles that
  have been previously used exclusively and regularly by  such  person  in
  the  conduct  of  business  and  used  motor vehicles traded in on motor
  vehicles sold by such person, (b) warranty  repairs  performed  by  such
  person  on  motor  vehicles  are limited to those motor vehicles that it
  owns, previously  owned  or  takes  in  trade,  and  (c)  motor  vehicle
  financing provided by such person to retail consumers for motor vehicles
  is  limited  to vehicles sold by such person in the conduct of business;
  or
    2. The direct or indirect  ownership,  affiliation  or  control  of  a
  person described in subdivision one of this section.

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