Bill Text: NY S04643 | 2023-2024 | General Assembly | Introduced
Bill Title: Establishes recreational vehicle dealer agreements; defines terms; provides that a manufacturer or distributor may not sell a recreational vehicle in this state to or through a dealer without having first entered into a manufacturer/dealer agreement with a dealer which has been signed by both parties; provides that a manufacturer or distributor, directly or through any authorized officer, agent or employee, may not terminate, cancel or fail to renew a manufacturer/dealer agreement without good cause; makes related provisions.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-05-06 - RECOMMIT, ENACTING CLAUSE STRICKEN [S04643 Detail]
Download: New_York-2023-S04643-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 4643 2023-2024 Regular Sessions IN SENATE February 13, 2023 ___________ Introduced by Sen. KENNEDY -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer Protection AN ACT to amend the general business law, in relation to establishing the recreational vehicle dealer agreements The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. It is the intent of the legislature to protect the public 2 health, safety, and welfare of the residents of the state by regulating 3 the relationship between recreation vehicle dealers, manufacturers and 4 suppliers, maintaining competition, and providing consumer protection 5 and fair trade. 6 § 2. The general business law is amended by adding a new article 42 to 7 read as follows: 8 ARTICLE 42 9 RECREATIONAL VEHICLE DEALER AGREEMENTS 10 Section 1100. Definitions. 11 1101. Written agreements/designated territories. 12 1102. Manufacturer initiated termination, cancellation, and 13 alteration of a dealership. 14 1103. Dealer initiated termination, cancellation, and alteration 15 of a dealership. 16 1104. Repurchase of inventory. 17 1105. Transfer of dealership/family succession. 18 1106. Warranty obligations. 19 1107. Indemnification. 20 1108. Inspection and rejection by the dealer. 21 1109. Coercion of dealer prohibited. 22 1110. Preservation of consumer protection statutes. 23 1111. Private actions. 24 1112. Powers of the commissioner of motor vehicles. 25 1113. Construction of article. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD06150-01-3S. 4643 2 1 1114. Notice requirement. 2 1115. Adjudicatory proceedings. 3 1116. Judicial review. 4 1117. Separability. 5 1118. Savings clause. 6 § 1100. Definitions. As used in this article, the following terms 7 shall have the following meanings: 1. "Area of sales responsibility" 8 means the geographical area, agreed to by the dealer and the manufactur- 9 er or distributor in the manufacturer/dealer agreement, within which 10 area the dealer has the exclusive right to display or sell the manufac- 11 turer's or distributor's new recreation vehicles of a particular line- 12 make to the retail public. 13 2. "Dealer" means any person, firm, corporation, or business entity 14 licensed or required to be licensed under this article to sell new 15 recreation vehicles to the retail public and who maintains a permanent 16 business establishment including a service and repair facility which 17 offers mechanical services for the recreation vehicles it sells. 18 3. "Distributor" means any person, firm, corporation, or business 19 entity that purchases new recreation vehicles from manufacturers for 20 resale to dealers. 21 4. "Factory campaign" means an effort on the part of a warrantor to 22 contact recreation vehicle owners or dealers in order to address a part 23 or equipment issue. 24 5. "Family member" means a spouse, child, grandchild, parent, sibling, 25 niece, or nephew, or the spouse thereof. 26 6. "Line-make" means a specific series of recreation vehicle products 27 that: 28 (a) are identified by a common series trade name or trademark; 29 (b) are targeted to a particular market segment, as determined by 30 their decor, features, equipment, size, weight, and price range; 31 (c) have lengths and interior floor plans that distinguish the recre- 32 ation vehicles from other recreation vehicles with substantially the 33 same decor, equipment, features, price, and weight; 34 (d) belong to a single, distinct classification of recreation vehicle 35 product type having a substantial degree of commonality in the 36 construction of the chassis, frame, and body; and 37 (e) the manufacturer/dealer agreement authorizes a dealer to sell. 38 7. "Manufacturer" means any person, firm, corporation, or business 39 entity that engages in the manufacturing of recreation vehicles. 40 8. "New recreation vehicle" means a recreation vehicle that has never 41 been sold to the retail public nor titled nor registered in any state. 42 9. "Manufacturer/dealer agreement" means a written agreement or 43 contract entered into between a manufacturer or distributor and a dealer 44 that fixes the rights and responsibilities of the parties and pursuant 45 to which the dealer sells new recreation vehicles. 46 10. "Proprietary part" means any part manufactured by or for and sold 47 exclusively by the manufacturer or distributor. 48 11. "Recreational vehicle" means a motor home or trailer used for 49 recreational camping or seasonal use, that is equipped with a cooking 50 facility with an on-board fuel source; a potable water supply system 51 that includes at least a sink, a faucet and a water tank with an exteri- 52 or service supply connection, a toilet with exterior evacuation, a gas 53 or electric refrigerator, a heating or air conditioning system with an 54 on-board power or fuel source separate from the vehicle engine, and an 55 electric power system. Recreational vehicle types include the motorS. 4643 3 1 home, travel trailer, folding camping trailer, truck camper or park 2 model RV as defined in this subdivision. 3 (a) "Motor home" means a self-propelled recreation vehicle, designed 4 to provide temporary living quarters for recreational, camping or travel 5 use that complies with all the applicable federal vehicle regulations. 6 The unit must contain at least four of the following permanently 7 installed independent life support systems which meet the National Fire 8 Protection Association (NFPA) 1192 Standard for Recreational Vehicles: 9 (i) a cooking facility with an on-board fuel source; 10 (ii) a potable water supply system that includes at least a sink, a 11 faucet and a water tank with an exterior service supply connection; 12 (iii) a toilet with exterior evacuation; 13 (iv) a gas or electric refrigerator; 14 (v) a heating or air conditioning system with an on-board power or 15 fuel source separate from the vehicle engine; or 16 (vi) an electric power system. 17 (b) "Travel trailer" means a recreation vehicle mounted on wheels, 18 designed to provide temporary living quarters for recreational, camping 19 or travel use that complies with all the applicable federal vehicle 20 regulations and is of such size and weight as to not require a special 21 highway movement permit when towed by a motorized vehicle. 22 (c) "Fifth wheel trailer" means a recreation vehicle mounted on 23 wheels, designed to provide temporary living quarters for recreational, 24 camping or travel use that complies with all the applicable federal 25 vehicle regulations and is of such size and weight as to not require a 26 special highway movement permit when towed by a motorized vehicle 27 equipped with a towing mechanism that is mounted above or forward of the 28 tow vehicle's rear axle. 29 (d) "Folding camping trailer" means a recreation vehicle mounted on 30 wheels, designed to provide temporary living quarters for recreational, 31 camping or travel use that complies with all the applicable federal 32 vehicle regulations and is constructed with collapsible partial side 33 walls that fold for towing by another vehicle and unfold at the camp- 34 site. 35 (e) "Truck camper" means a recreation vehicle designed to be loaded 36 onto the back of a pickup truck to provide temporary living quarters for 37 recreational, camping or travel use; provided, however, that nothing in 38 this paragraph shall authorize a dealer to sell or lease new pickup 39 trucks, or include pickup trucks within the definition of "recreation 40 vehicle", and provided, further, that nothing in this paragraph shall 41 remove a dealer of new pickup trucks from subdivision seven of section 42 four hundred sixty-two of the vehicle and traffic law. 43 (f) "Park model RV" means a recreation vehicle that is: 44 (i) designed and marketed as temporary living quarters for recreation- 45 al, camping, travel, or seasonal use; 46 (ii) not permanently affixed to real property for use as a permanent 47 dwelling; 48 (iii) built on a single chassis mounted on wheels; and 49 (iv) certified by the manufacturer as complying with the ANSI A119.5, 50 Park Model RV Standard. 51 12. "Supplier" means any person, firm, corporation or business entity 52 that engages in the manufacturing of recreation vehicle parts, accesso- 53 ries or components. 54 13. "Transient customer" means a customer who is temporarily traveling 55 through a dealer's area of sales responsibility.S. 4643 4 1 14. "Warrantor" means any person, firm, corporation, or business enti- 2 ty, including any manufacturer, distributor or supplier that provides a 3 written warranty to the consumer in connection with a new recreation 4 vehicle or parts, accessories, or components thereof. The term does not 5 include service contracts, mechanical or other insurance or extended 6 warranties sold for separate consideration by a dealer or other person 7 not controlled by a manufacturer or distributor. 8 § 1101. Written agreements/designated territories. 1. A manufacturer 9 or distributor may not sell a recreation vehicle in this state to or 10 through a dealer without having first entered into a manufacturer/dealer 11 agreement with a dealer which has been signed by both parties. 12 2. The manufacturer or distributor shall designate the area of sales 13 responsibility exclusively assigned to a dealer in the 14 manufacturer/dealer agreement and may not change such area or contract 15 with another dealer for sale of the same line-make in the designated 16 area during the duration of the agreement. 17 3. The area of sales responsibility may not be reviewed or changed 18 without the consent of both parties until one year after the execution 19 of the manufacturer/dealer agreement. 20 4. A recreation vehicle dealer may not sell a new recreation vehicle 21 in this state without having first entered into a manufacturer/dealer 22 agreement with a manufacturer or distributor which has been signed by 23 both parties. 24 § 1102. Manufacturer initiated termination, cancellation, and alter- 25 ation of a dealership. 1. A manufacturer or distributor, directly or 26 through any authorized officer, agent or employee, may not terminate, 27 cancel or fail to renew a manufacturer/dealer agreement without good 28 cause. If the manufacturer or distributor terminates, cancels or fails 29 to renew the manufacturer/dealer agreement with good cause section elev- 30 en hundred four of this article does not apply. 31 2. The manufacturer or distributor has the burden of showing good 32 cause for terminating, canceling, or failing to renew a 33 manufacturer/dealer agreement with a dealer. For purposes of determining 34 whether there is good cause for the proposed action, any of the follow- 35 ing factors may be considered: 36 (a) The extent of the affected dealer's penetration in the area of 37 sales responsibility. 38 (b) The nature and extent of the dealer's investment in its business. 39 (c) The adequacy of the dealer's service facilities, equipment, parts, 40 supplies, and personnel. 41 (d) The effect of the proposed action on the community. 42 (e) The extent and quality of the dealer's service under recreation 43 vehicle warranties. 44 (f) The dealer's failure to follow agreed-upon procedures or standards 45 related to the overall operation of the dealership. 46 (g) The dealer's performance under the terms of its 47 manufacturer/dealer agreement. 48 (h) Violation of the manufacturer/dealer agreement. 49 3. Except as otherwise provided in this section, a manufacturer or 50 distributor shall provide a dealer with at least ninety days prior writ- 51 ten notice of termination, cancellation, or nonrenewal of the 52 manufacturer/dealer agreement in the event the dealer is being termi- 53 nated for good cause. 54 (a) The notice must state all reasons for the proposed termination, 55 cancellation, or nonrenewal and if the termination, cancellation or 56 nonrenewal is based on lack of performance, the dealer's stocking histo-S. 4643 5 1 ry and reasonable market performance must be given consideration. A 2 dealer's duty to cure and evaluation of same will include consideration 3 of seasonal volatility of the market. The notice must further state that 4 if, within thirty days following receipt of the notice, the dealer 5 provides to the manufacturer or distributor a written notice of intent 6 to cure all claimed deficiencies, the dealer will then have ninety days 7 following receipt of the original notice to rectify the deficiencies. 8 (b) If the deficiencies are rectified within ninety days, the manufac- 9 turer's or distributor's notice is voided. If the dealer fails to 10 provide the notice of intent to cure the deficiencies or fails to cure 11 the deficiencies in the prescribed time period, the termination, cancel- 12 lation, or nonrenewal takes effect as provided in the original notice. 13 (c) The notice period may be reduced to thirty days if the manufactur- 14 er's or distributor's grounds for termination, cancellation, or nonrene- 15 wal are due to any of the following good cause factors: 16 (i) a dealer or one of its owners being convicted of, or entering a 17 plea of nolo contendere to, a felony; 18 (ii) the abandonment or closing of the business operations of the 19 dealer for ten consecutive business days unless the closing is due to an 20 act of God, strike, labor difficulty, or other cause over which the 21 dealer has no control; 22 (iii) a significant misrepresentation by the dealer materially affect- 23 ing the business relationship; 24 (iv) a suspension or revocation of the dealer's license, or refusal to 25 renew the dealer's license, by the department; 26 (v) a material violation of this article which is not cured within 27 thirty days after the written notice by the manufacturer; or 28 (vi) a declaration by the dealer of bankruptcy, insolvency or the 29 occurrence of an assignment for the benefit of creditors or bankruptcy. 30 § 1103. Dealer initiated termination, cancellation, and alteration of 31 a dealership. 1. A dealer may terminate or cancel its 32 manufacturer/dealer agreement with a manufacturer or distributor with or 33 without good cause by giving thirty days written notice. If the termi- 34 nation or cancellation is for good cause, the notice must state all 35 reasons for the proposed termination or cancellation and must further 36 state that if, within thirty days following receipt of the notice, the 37 manufacturer or distributor provides to the dealer a written notice of 38 intent to cure all claimed deficiencies, the manufacturer or distributor 39 will then have ninety days following receipt of the original notice to 40 rectify the deficiencies. If the deficiencies are rectified within nine- 41 ty days, the dealer's notice is voided. If the manufacturer or distribu- 42 tor fails to provide the notice of intent to cure the deficiencies or 43 fails to cure the deficiencies in the time period prescribed, the pend- 44 ing termination or cancellation shall take as provided in the original 45 notice. 46 2. If the dealer terminates, cancels or fails to renew the 47 manufacturer/dealer agreement without good cause, the terms of section 48 eleven hundred four of this article do not apply. If the dealer termi- 49 nates, cancels or fails to renew the manufacturer/dealer agreement with 50 good cause, section eleven hundred four of this article would apply. 51 3. If the dealer terminates for cause and has new and untitled inven- 52 tory on hand subject to the termination, that inventory may be sold 53 pursuant to subdivision two of section eleven hundred four of this arti- 54 cle.S. 4643 6 1 4. The dealer has the burden of showing good cause. The term "good 2 cause" for the proposed termination, cancellation or nonrenewal action 3 by a dealer includes, but is not limited to: 4 (a) A manufacturer or distributor being convicted of, or entering a 5 plea of nolo contendere to, a felony. 6 (b) The business operations of the manufacturer or distributor have 7 been abandoned or closed for ten consecutive business days, unless the 8 closing is due to an act of God, strike, labor difficulty, or other 9 cause over which the manufacturer or distributor has no control. 10 (c) A significant misrepresentation by the manufacturer or distributor 11 materially affecting the business relationship. 12 (d) A material violation of this article which is not cured within 13 thirty days after written notice by the dealer. 14 (e) A material violation of the dealer agreement by the manufacturer 15 or distributor. 16 (f) A declaration by the manufacturer or distributor of bankruptcy, 17 insolvency, or the occurrence of an assignment for the benefit of credi- 18 tors or bankruptcy. 19 § 1104. Repurchase of inventory. 1. If the manufacturer/dealer agree- 20 ment is terminated, canceled, or not renewed by the manufacturer or 21 distributor as defined in section eleven hundred two of this article 22 without good cause or if the dealer terminates or cancels the 23 manufacturer/dealer agreement for good cause as defined in section elev- 24 en hundred three of this article, and the manufacturer or distributor 25 fails to cure the claimed deficiencies as provided in such section, the 26 manufacturer shall, at the election of the dealer and within forty-five 27 days after termination, cancellation, or nonrenewal, repurchase: 28 (a) all new, untitled recreation vehicles to which the dealer can show 29 clear title and that were acquired from the manufacturer or distributor 30 within eighteen months before the effective date of the notice of termi- 31 nation, cancellation, or nonrenewal that have not been used, except for 32 demonstration purposes, and that have not been altered or damaged, at 33 one hundred percent of the net invoice cost, including transportation, 34 less applicable rebates and discounts to the dealer. In the event any of 35 the vehicles repurchased pursuant to this subdivision are damaged, but 36 do not trigger a consumer disclosure requirement, the amount due the 37 dealer shall be reduced by the cost to repair the vehicle. Damage prior 38 to delivery to dealer that is disclosed at the time of delivery will not 39 disqualify repurchase under this provision; 40 (b) all undamaged accessories and proprietary parts sold to the dealer 41 for resale within the twelve months prior to termination, cancellation, 42 or nonrenewal, if accompanied by the original invoice, at one hundred 43 five percent of the original net price paid to the manufacturer or 44 distributor to compensate the dealer for handling, packing, and shipping 45 the parts; and 46 (c) any properly functioning diagnostic equipment, special tools, 47 current signage, or other equipment and machinery which was purchased by 48 the dealer upon the manufacturer or distributor's request within five 49 years prior to the termination, cancellation, or nonrenewal and which 50 can no longer be used in the normal course of the dealer's ongoing busi- 51 ness. 52 2. Sale of remaining inventory after termination. 53 (a) The department shall not prohibit a new recreation vehicle dealer 54 from selling the remaining in-stock recreation vehicles of a line-make 55 subject to a dealer agreement after that dealer agreement has beenS. 4643 7 1 terminated or not renewed pursuant to the provisions of section eleven 2 hundred two or eleven hundred three of this article. 3 (b) If recreation vehicles of a line-make that was subject to a termi- 4 nated dealer agreement are not repurchased or required to be repurchased 5 by the manufacturer or distributor, the dealer may continue to sell all 6 recreation vehicles that were subject to the terminated dealer agreement 7 and were in the dealer's inventory on the effective date of the termi- 8 nation until those recreation vehicles are no longer in the dealer's 9 inventory. 10 § 1105. Transfer of dealership/family succession. 1. If a dealer 11 desires to make a change in ownership by the sale of the business 12 assets, stock transfer, or otherwise, the dealer shall give the manufac- 13 turer or distributor written notice at least fifteen business days 14 before the closing, including all supporting documentation as may be 15 reasonably required by the manufacturer or distributor to determine if 16 an objection to the sale may be made. In the absence of a breach by the 17 selling dealer of its dealer agreement or this chapter, the manufacturer 18 or distributor shall not object to the proposed change in ownership 19 unless the prospective transferee: 20 (a) has previously been terminated by the manufacturer or distributor 21 for breach of its dealer agreement; 22 (b) has been convicted of a felony or any crime of fraud, deceit, or 23 moral turpitude; 24 (c) lacks any license required by law; 25 (d) does not have an active line of credit sufficient to purchase a 26 manufacturer's or distributor's product; or 27 (e) has undergone in the last ten years bankruptcy, insolvency, a 28 general assignment for the benefit of creditors, or the appointment of a 29 receiver, trustee, or conservator to take possession of the transferee's 30 business or property. 31 2. If the manufacturer or distributor objects to a proposed change of 32 ownership, the manufacturer or distributor shall give written notice of 33 its reasons to the dealer within ten business days after receipt of the 34 dealer's notification and complete documentation. The manufacturer or 35 distributor has the burden of proof with regard to its objection. If the 36 manufacturer or distributor does not give timely notice of its 37 objection, the change or sale shall be deemed approved. 38 3. It is unlawful for a manufacturer or distributor to fail to provide 39 a dealer an opportunity to designate, in writing, a family member as a 40 successor to the dealership in the event of the death, incapacity, or 41 retirement of the dealer. It is unlawful to prevent or refuse to honor 42 the succession to a dealership by a family member of the deceased, inca- 43 pacitated, or retired dealer unless the manufacturer or distributor has 44 provided to the dealer written notice of its objections within ten days 45 after receipt of the dealer's modification of the dealer's succession 46 plan. In the absence of a breach of the dealer agreement, the manufac- 47 turer or distributor may object to the succession for the following 48 reasons only: 49 (a) conviction of the successor of a felony or any crime of fraud, 50 deceit, or moral turpitude; 51 (b) bankruptcy or insolvency of the successor during the past ten 52 years; 53 (c) prior termination by the manufacturer or distributor of the 54 successor for breach of a dealer agreement; 55 (d) the lack of an active line of credit for the successor sufficient 56 to purchase the manufacturer's or distributor's product; orS. 4643 8 1 (e) the lack of any license for the successor required by law. 2 4. The manufacturer or distributor has the burden of proof regarding 3 its objection. However, a family member may not succeed to a dealership 4 if the succession involves, without the manufacturer's or distributor's 5 consent, a relocation of the business or an alteration of the terms and 6 conditions of the manufacturer/dealer agreement. 7 § 1106. Warranty obligations. 1. Each warrantor shall: 8 (a) specify in writing to each of its dealers obligations, if any, for 9 preparation, delivery, and warranty service on its products; 10 (b) compensate the dealer for warranty service required of the dealer 11 by the warrantor; and 12 (c) provide the dealer the schedule of compensation to be paid and the 13 time allowances for the performance of any work and service. The sched- 14 ule of compensation must include reasonable compensation for diagnostic 15 work as well as warranty labor. 16 2. Time allowances for the diagnosis and performance of warranty labor 17 must be reasonable for the work to be performed. In the determination of 18 what constitutes reasonable compensation under this section, the princi- 19 pal factors to be given consideration shall be the actual wage rates 20 being paid by the dealer, and the actual retail labor rate being charged 21 by the dealers in the community in which the dealer is doing business. 22 Such comparisons shall be with dealers of similar size, capability and 23 investment. The compensation of a dealer for warranty labor may not be 24 less than the lowest retail labor rates actually charged by the dealer 25 for like non-warranty labor as long as such rates are reasonable. 26 3. The warrantor shall reimburse the dealer for any warranty part, 27 accessory or complete component at actual wholesale cost plus a minimum 28 thirty percent handling charge up to a maximum of one hundred fifty 29 dollars and the cost, if any, of freight to return such parts, compo- 30 nents, or accessories to the warrantor. 31 4. Warranty audits of dealer records may be conducted by the warrantor 32 on a reasonable basis, and dealer claims for warranty compensation may 33 not be denied except for cause, such as performance of non-warranty 34 repairs, material noncompliance with the warrantor's published policies 35 and procedures, lack of material documentation, fraud, or misrepresen- 36 tation. 37 5. The dealer shall submit warranty claims within forty-five days 38 after completing work. 39 6. The dealer shall immediately notify the warrantor in writing upon 40 receipt of any written complaints from a consumer regarding any warranty 41 repairs. 42 7. The warrantor shall disapprove warranty claims in writing within 43 forty-five days after the date of submission by the dealer in the manner 44 and form prescribed by the warrantor. Claims not specifically disap- 45 proved in writing within forty-five days shall be construed to be 46 approved and must be paid within sixty days of submission. 47 8. It is a violation of this article for any warrantor to: 48 (a) fail to perform any of its warranty obligations with respect to 49 its warranted products; 50 (b) fail to include, in written notices of factory campaigns to recre- 51 ation vehicle owners and dealers, the expected date by which necessary 52 parts and equipment, including tires and chassis or chassis parts, will 53 be available to dealers to perform the campaign work. The warrantor may 54 ship parts to the dealer to effect the campaign work, and, if such parts 55 are in excess of the dealer's requirements, the dealer may return unused 56 parts to the warrantor for credit after completion of the campaign;S. 4643 9 1 (c) fail to compensate any of its dealers for authorized repairs 2 effected by the dealer on recreation vehicles or products damaged in 3 manufacture or transit to the dealer, if the carrier is designated by 4 the warrantor, factory branch, distributor, or distributor branch; 5 (d) fail to compensate any of its dealers in accordance with the sche- 6 dule of compensation provided to the dealer pursuant to this section if 7 performed in a timely and competent manner; 8 (e) intentionally misrepresent in any way to purchasers of recreation 9 vehicles that warranties with respect to the manufacture, performance, 10 or design of the vehicle are made by the dealer as warrantor or co-war- 11 rantor; or 12 (f) require the dealer to make warranties to customers in any manner 13 related to the manufacture of the recreation vehicle. 14 9. It is a violation of this article for any dealer to: 15 (a) fail to perform pre-delivery inspection functions, as specified by 16 the warrantor, in a competent and timely manner; 17 (b) fail to perform warranty service work authorized by the warrantor 18 in a reasonably competent and timely manner on any transient customer's 19 vehicle of the same line-make; 20 (c) fail to accurately document the time spent completing each repair, 21 the total number of repair attempts conducted on a single unit, and the 22 number of repair attempts for the same repair conducted on a single 23 vehicle; 24 (d) fail to maintain written records, including a consumer's signa- 25 ture, regarding the amount of time a unit is stored for the consumer's 26 convenience during a repair; or 27 (e) make fraudulent warranty claims or misrepresent the terms of any 28 warranty. 29 10. A dealer shall take reasonable steps to notify a warrantor of a 30 second repair attempt, if the dealer has knowledge of both attempts, 31 which impairs the use or safety of the vehicle. Failure to make such 32 notification is not a cause for termination. 33 § 1107. Indemnification. Notwithstanding the terms of any manufactur- 34 er-dealer agreement, it is a violation of this article for: 35 1. A warrantor to fail to indemnify and hold harmless its new recre- 36 ation vehicle dealer against any losses or damages to the extent that 37 the losses or damages are caused by the negligence or willful misconduct 38 of the warrantor. A new recreation vehicle dealer may not be denied 39 indemnification for failing to discover, disclose, or remedy a defect in 40 the design or manufacturing of a new recreation vehicle or new recre- 41 ation trailer. A new recreation vehicle dealer may be denied indemnifi- 42 cation if the new recreation vehicle dealer fails to remedy a known and 43 announced defect in accordance with the written instructions of a 44 warrantor for whom the new recreation vehicle dealer is obligated to 45 perform warranty service. A new recreation vehicle dealer shall provide 46 to a warrantor a copy of any pending lawsuit in which allegations are 47 made that are covered by the provisions of this subdivision within ten 48 days after receiving such suit. Notwithstanding anything to the contra- 49 ry, this subdivision shall continue to apply even after the new recre- 50 ation vehicle or new recreation trailer is titled. 51 2. A new recreation vehicle dealer to fail to indemnify and hold harm- 52 less its warrantor against any losses or damages to the extent that the 53 losses or damages are caused by the negligence or willful misconduct of 54 the new recreation vehicle dealer. A warrantor shall provide to a new 55 recreation vehicle dealer a copy of any pending lawsuit or similar 56 proceeding in which allegations are made that come within the provisionsS. 4643 10 1 of this section within ten days after receiving such suit. Notwith- 2 standing anything to the contrary, this subdivision shall continue to 3 apply even after the new recreation vehicle or new recreation trailer is 4 titled. 5 § 1108. Inspection and rejection by the dealer. 1. Whenever a new 6 recreation vehicle is damaged prior to transit to the dealer or is 7 damaged in transit to the dealer when the carrier or means of transpor- 8 tation has been selected by the manufacturer or distributor, the dealer 9 shall notify the manufacturer or distributor of the damage within the 10 timeframe specified in the manufacturer/dealer agreement and: 11 (a) request from the manufacturer or distributor authorization to 12 replace the components, parts, and accessories damaged or otherwise 13 correct the damage; or 14 (b) reject the vehicle within the timeframe set forth in subdivision 15 four of this section. 16 2. If the manufacturer or distributor refuses or fails to authorize 17 repair of such damage within ten days after receipt of notification, or 18 if the dealer rejects the recreation vehicle because of damage, owner- 19 ship of the new recreation vehicle shall revert to the manufacturer or 20 distributor. 21 3. The dealer shall exercise due care in custody of the damaged recre- 22 ation vehicle, but the dealer shall have no other obligations, financial 23 or otherwise, with respect to that recreational vehicle. 24 4. The timeframe for inspection and rejection by the dealer must be 25 part of the manufacturer/dealer agreement and may not be less than two 26 business days after the physical delivery of the recreation vehicle. 27 5. Any recreation vehicle that has, at the time of delivery to the 28 dealer, an unreasonable amount of miles on its odometer, as determined 29 by the dealer, may be subject to rejection by the dealer and reversion 30 of the recreation vehicle to the manufacturer or distributor. In no 31 instance shall a dealer deem an amount less than the distance between 32 the dealer and the manufacturer's factory or a distributor's point of 33 distribution, plus one hundred miles, as unreasonable. 34 § 1109. Coercion of dealer prohibited. 1. A manufacturer or distribu- 35 tor may not coerce or attempt to coerce a dealer to: 36 (a) purchase a product that the dealer did not order; 37 (b) enter into an agreement with the manufacturer or distributor; or 38 (c) enter into an agreement that requires the dealer to submit its 39 disputes to binding arbitration or otherwise waive rights or responsi- 40 bilities provided under this article. 41 2. As used in this section, the term "coerce" includes, but is not 42 limited to, threatening to terminate, cancel, or not renew a 43 manufacturer/dealer agreement without good cause or threatening to with- 44 hold product lines the dealer is entitled to purchase pursuant to the 45 manufacturer/dealer agreement or delay product delivery as an inducement 46 to amending the manufacturer/dealer agreement. 47 § 1110. Preservation of consumer protection statutes. Nothing 48 contained in this article shall in any way be construed or interpreted 49 to modify, limit or affect the full powers and duties heretofore or 50 hereafter granted to consumer protection agencies created by statute or 51 regulation enacted by state, city, county or local municipalities and 52 the rights of consumers to make complaints thereto, it being the intent 53 of this article to provide for the settlement and/or determination of 54 disputes under this article as between dealers and distributors as 55 defined in section eleven hundred of this article.S. 4643 11 1 § 1111. Private actions. 1. A dealer who is or may be aggrieved by a 2 violation of this article shall be entitled to request an adjudicatory 3 proceeding, as prescribed in section eleven hundred fifteen of this 4 article, or in lieu thereof, sue for, and have, injunctive relief and 5 damages in any court of the state having jurisdiction over the parties. 6 In any such judicial action or proceeding, the court may award necessary 7 costs and disbursements plus a reasonable attorney's fee to any party. 8 2. Whenever a dealer provides for the use of arbitration to resolve a 9 controversy arising out of or relating to such contract, arbitration may 10 be used to settle such controversy only if after such controversy arises 11 all parties to such controversy consent in writing to use arbitration to 12 settle such controversy. 13 § 1112. Powers of the commissioner of motor vehicles. 1. In addition 14 to any other powers and duties of the commissioner of motor vehicles set 15 forth in the vehicle and traffic law, such commissioner shall have the 16 power to enforce the provisions of this article, in accordance with 17 section eleven hundred fifteen of this article. 18 2. The commissioner of motor vehicles shall prescribe such rules and 19 regulations as such commissioner shall deem necessary for the implemen- 20 tation of this section and section eleven hundred fifteen of this arti- 21 cle. 22 § 1113. Construction of article. The provisions of this article shall 23 be in addition to and not in lieu of those contained in the uniform 24 commercial code. 25 § 1114. Notice requirement. 1. A dealer shall not display for sale, 26 exchange or sell any new recreation vehicle, or any used recreation 27 vehicle, that was originally sold by a manufacturer or distributor for 28 distribution outside the United States without prominently displaying a 29 label on such recreation vehicle stating that "This recreation vehicle 30 was not sold by the manufacturer or distributor for distribution within 31 the United States. It may not have the same standard features, emissions 32 equipment, safety equipment, optional equipment, specifications and 33 warranty, or otherwise be identical to other recreation vehicles which 34 are sold by the manufacturer or distributor for distribution in the 35 United States". 36 2. Any person who violates this section and any person who knowingly 37 aids and abets any such violation of this section shall be liable to any 38 person aggrieved to the extent of any additional margin obtained or 39 obtainable on such purchase and resale. 40 § 1115. Adjudicatory proceedings. 1. Request for an adjudicatory 41 proceeding. (a) Any dealer who is or may be aggrieved by a violation of 42 this article may request mediation with the manufacturer or distributor. 43 The request for mediation shall be served by certified mail, or in such 44 manner as the dealer and the manufacturer or distributor have agreed. If 45 the dealer agrees to mediation, such mediation shall proceed in accord- 46 ance with the terms as agreed upon by the dealer and manufacturer or 47 distributor; provided, however, that if the dealer and manufacturer or 48 distributor have not agreed upon the terms of mediation (i) the dealer 49 and the manufacturer or distributor shall select a mediator within seven 50 days of service by the manufacturer or distributor of the request for 51 mediation; (ii) the mediation shall be completed within twenty-one days 52 of selection of the mediator, or within such period as the dealer and 53 the manufacturer or distributor shall agree; and (iii) the cost of medi- 54 ation shall be shared equally by the parties. If the matter is resolved 55 by mediation, a written memorandum of the agreement shall be executed by 56 the mediator, the dealer, and the manufacturer or distributor.S. 4643 12 1 (b) If the matter has not been resolved by mediation, the dealer and 2 the manufacturer or distributor have not agreed to mediation, or the 3 mediation has not been completed within the period set forth in subpara- 4 graph (ii) of paragraph (a) of this subdivision, the manufacturer or 5 distributor may file with the commissioner of motor vehicles a request 6 for an adjudicatory proceeding pursuant to this section. The request 7 shall be in writing and contain a short and plain statement of the facts 8 relied upon by the dealer to support a claim that the manufacturer or 9 distributor has violated one or more specific provisions of this article 10 together with a request for a specific remedy other than damages. The 11 request shall be accompanied by copies of all correspondence between the 12 dealer and the manufacturer or distributor and other documents relevant 13 to the claims made in the request. The request shall be accompanied by a 14 non-refundable filing fee of two thousand dollars. 15 (c) A true copy of the request with copies of all documents filed with 16 the request shall be served upon the manufacturer or distributor at the 17 same time as the request is filed with the commissioner of motor vehi- 18 cles by transmitting such documents in any manner specifically permitted 19 under the terms of the agreement or, if no such manner is specified in 20 such agreement, then by certified mail, return receipt requested, 21 addressed to the officer or employee of the manufacturer or distributor 22 from whom the dealer has received correspondence relevant to the claims 23 made in the request. A certificate of service shall accompany the 24 request. 25 (d) The hearing shall be at such time and place as the commissioner of 26 motor vehicles shall prescribe. The commissioner of motor vehicles shall 27 mail to the dealer and the manufacturer or distributor a notice stating 28 the name of the presiding officer assigned to the matter, and the place 29 and time of the hearing. The hearing shall be commenced as soon as prac- 30 ticable, but in no event sooner than sixty days from the date of the 31 notice. 32 (e) The notice shall be sent by ordinary mail to the address of the 33 dealer or attorney shown in the request and to the address to which the 34 copy of the request was sent as shown in the certificate of service or 35 such other address as the manufacturer or distributor has designated for 36 receiving such notices. The notice shall advise the manufacturer or 37 distributor of the right to submit within twenty days of receipt of such 38 notice a short and plain statement of answers to the allegations of the 39 request and of facts on which the manufacturer or distributor relies in 40 defense of such allegations. Such answering statement shall be mailed to 41 the commissioner of motor vehicles or his or her designee and the dealer 42 at addresses shown on the notice. 43 (f) The dealer may submit within twenty days of receipt of the 44 manufacturer's or distributor's answering statement and additional 45 statement of facts and documentary material only to the extent of 46 answering new matter raised by the manufacturer or distributor. Except 47 as set forth in paragraph (g) of this subdivision, after receipt by a 48 party of the notice from the commissioner of motor vehicles, all corre- 49 spondence and other communications relating to the dispute shall be with 50 the presiding officer with copies to the opposing party. 51 (g) In accordance with the rules and regulations prescribed by the 52 commissioner of motor vehicles, each party shall disclose to the other 53 all documents or other materials, including those that may have been 54 maintained in electronic form, that the party intends to introduce at 55 the hearing.S. 4643 13 1 2. Hearings and other proceedings and presiding officers. Except as 2 otherwise set forth in this section, hearings and other proceedings 3 authorized under this article shall comply with article three of the 4 state administrative procedure act and shall be presided over by the 5 presiding officer appointed by the commissioner of motor vehicles. The 6 presiding officer shall be admitted to practice as an attorney in the 7 state of New York and shall rule on all motions, procedures and other 8 legal objections. 9 3. Resolution without a hearing. Either party may request resolution 10 of the dispute without a hearing. A request for a resolution without a 11 hearing shall be accompanied by sufficient information to permit a 12 determination of whether any unresolved material issue of fact exists, 13 and may be accompanied by a legal memorandum. The other party shall have 14 an opportunity to respond. Such a request shall be granted if the 15 presiding officer determines that no unresolved material issue of fact 16 is presented in the matter. No hearing shall be conducted until the 17 request for a resolution without a hearing has been determined. 18 4. Presiding officer decision. The presiding officer shall render a 19 decision upon the conclusion of the hearing or without a hearing pursu- 20 ant to subdivision three of this section not later than ninety days 21 after the close of the hearing or the granting of the request for resol- 22 ution without a hearing. The decision of the presiding officer shall be 23 based on the preponderance of the evidence. The presiding officer shall 24 prepare a decision which shall include: (a) findings of fact; (b) a 25 determination on each charge; and (c) in the event of a determination of 26 a violation of this article, the remedy to be ordered. The decision of 27 the presiding officer shall be deemed the determination of the commis- 28 sioner of motor vehicles. 29 5. Litigation costs. In any administrative proceeding pursuant to this 30 section, each party shall bear its own litigation costs and attorneys' 31 fees. 32 6. Penalties. Any party to a proceeding held pursuant to this section 33 shall comply with the commissioner of motor vehicle's decision in such 34 proceeding, unless a stay or extension of the date for compliance is 35 granted by such commissioner or a court of competent jurisdiction. If, 36 after notice to such party and an opportunity to respond, such commis- 37 sioner finds that a party has not complied with such commissioner's 38 decision by the designated date of compliance, unless a stay or exten- 39 sion of such date has been granted, such commissioner, in addition to 40 any other enforcement powers such commissioner holds, may assess such 41 party a civil penalty not to exceed one thousand dollars per day of 42 noncompliance. Civil penalties assessed under this section shall be paid 43 to such commissioner for deposit in the state treasury, and unpaid civil 44 penalties may be recovered by such commissioner in a civil action in the 45 name of such commissioner. In addition, as an alternative to such civil 46 action and provided that no proceeding for judicial review shall then be 47 pending and the time for initiation of such proceeding shall have 48 expired, such commissioner may file with the county clerk of the county 49 in which the dealer, manufacturer or distributor is located a final 50 order of such commissioner containing the amount of the penalty 51 assessed. The filing of such final order shall have the full force and 52 effect of a judgment duly docketed in the office of such clerk and may 53 be enforced in the same manner and with the same effect as that provided 54 by law in respect to executions issued against property upon judgments 55 by a court of record.S. 4643 14 1 § 1116. Judicial review. A decision of the presiding officer under 2 section eleven hundred fifteen of this article shall be subject to 3 review by the supreme court in the manner provided by article seventy- 4 eight of the civil practice law and rules. 5 § 1117. Separability. If any part or provision of this article or the 6 application thereof to any person or circumstance be adjudged invalid by 7 any court of competent jurisdiction, such judgment shall be confined in 8 its operation to the part, provision or application directly involved in 9 the controversy in which such judgment shall have been rendered and 10 shall not affect or impair the validity of the remainder of this article 11 or the application thereof to other persons or circumstances. 12 § 1118. Savings clause. Nothing in this article shall prohibit, limit, 13 restrict or impose conditions on: 14 1. The business activities (including, without limitation, the deal- 15 ings with manufacturers or distributors and their representatives and 16 affiliates) of any person that is primarily engaged in the business of 17 rental of recreation vehicles and activities incidental to that business 18 provided that (a) any recreation vehicles sold by such person are limit- 19 ed to used recreation vehicles that have been previously used exclusive- 20 ly and regularly by such person in the conduct of business and used 21 recreation vehicles traded in on recreation vehicles sold by such 22 person, (b) warranty repairs performed by such person on recreation 23 vehicles are limited to those recreation vehicles that it owns, previ- 24 ously owned or takes in trade, and (c) recreation vehicle financing 25 provided by such person to retail consumers for recreation vehicles is 26 limited to vehicles sold by such person in the conduct of business; or 27 2. The direct or indirect ownership, affiliation or control of a 28 person described in subdivision one of this section. 29 § 3. This act shall take effect on the one hundred eightieth day after 30 it shall have become a law and shall apply to any and all 31 manufacturer/dealer agreements entered into on or after such effective 32 date.
