Bill Text: NY S08379 | 2019-2020 | 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; further 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: Bipartisan Bill
Status: (Introduced - Dead) 2020-05-20 - REFERRED TO CONSUMER PROTECTION [S08379 Detail]
Download: New_York-2019-S08379-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8379 IN SENATE May 20, 2020 ___________ Introduced by Sens. KENNEDY, ORTT -- 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. 26 1114. Notice requirement. 27 1115. Adjudicatory proceedings. 28 1116. Judicial review. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02690-01-9S. 8379 2 1 1117. Separability. 2 1118. Savings clause. 3 § 1100. Definitions. As used in this article, the following terms 4 shall have the following meanings: 1. "Area of sales responsibility" 5 means the geographical area, agreed to by the dealer and the manufactur- 6 er or distributor in the manufacturer/dealer agreement, within which 7 area the dealer has the exclusive right to display or sell the manufac- 8 turer's or distributor's new recreation vehicles of a particular line- 9 make to the retail public. 10 2. "Dealer" means any person, firm, corporation, or business entity 11 licensed or required to be licensed under this article to sell new 12 recreation vehicles to the retail public and who maintains a permanent 13 business establishment including a service and repair facility which 14 offers mechanical services for the recreation vehicles it sells. 15 3. "Distributor" means any person, firm, corporation, or business 16 entity that purchases new recreation vehicles from manufacturers for 17 resale to dealers. 18 4. "Factory campaign" means an effort on the part of a warrantor to 19 contact recreation vehicle owners or dealers in order to address a part 20 or equipment issue. 21 5. "Family member" means a spouse, child, grandchild, parent, sibling, 22 niece, or nephew, or the spouse thereof. 23 6. "Line-make" means a specific series of recreation vehicle products 24 that: 25 (a) are identified by a common series trade name or trademark; 26 (b) are targeted to a particular market segment, as determined by 27 their decor, features, equipment, size, weight, and price range; 28 (c) have lengths and interior floor plans that distinguish the recre- 29 ation vehicles from other recreation vehicles with substantially the 30 same decor, equipment, features, price, and weight; 31 (d) belong to a single, distinct classification of recreation vehicle 32 product type having a substantial degree of commonality in the 33 construction of the chassis, frame, and body; and 34 (e) the manufacturer/dealer agreement authorizes a dealer to sell. 35 7. "Manufacturer" means any person, firm, corporation, or business 36 entity that engages in the manufacturing of recreation vehicles. 37 8. "New recreation vehicle" means a recreation vehicle that has never 38 been sold to the retail public nor titled nor registered in any state. 39 9. "Manufacturer/dealer agreement" means a written agreement or 40 contract entered into between a manufacturer or distributor and a dealer 41 that fixes the rights and responsibilities of the parties and pursuant 42 to which the dealer sells new recreation vehicles. 43 10. "Proprietary part" means any part manufactured by or for and sold 44 exclusively by the manufacturer or distributor. 45 11. "Recreational vehicle" means a motor home or trailer used for 46 recreational camping or seasonal use, that is equipped with a cooking 47 facility with an on-board fuel source; a potable water supply system 48 that includes at least a sink, a faucet and a water tank with an exteri- 49 or service supply connection, a toilet with exterior evacuation, a gas 50 or electric refrigerator, a heating or air conditioning system with an 51 on-board power or fuel source separate from the vehicle engine, and an 52 electric power system. Recreational vehicle types include the motor 53 home, travel trailer, folding camping trailer, truck camper or park 54 model RV as defined in this subdivision. 55 (a) "Motor home" means a self-propelled recreation vehicle, designed 56 to provide temporary living quarters for recreational, camping or travelS. 8379 3 1 use that complies with all the applicable federal vehicle regulations. 2 The unit must contain at least four of the following permanently 3 installed independent life support systems which meet the National Fire 4 Protection Association (NFPA) 1192 Standard for Recreational Vehicles: 5 (i) a cooking facility with an on-board fuel source; 6 (ii) a potable water supply system that includes at least a sink, a 7 faucet and a water tank with an exterior service supply connection; 8 (iii) a toilet with exterior evacuation; 9 (iv) a gas or electric refrigerator; 10 (v) a heating or air conditioning system with an on-board power or 11 fuel source separate from the vehicle engine; or 12 (vi) an electric power system. 13 (b) "Travel trailer" means a recreation vehicle mounted on wheels, 14 designed to provide temporary living quarters for recreational, camping 15 or travel use that complies with all the applicable federal vehicle 16 regulations and is of such size and weight as to not require a special 17 highway movement permit when towed by a motorized vehicle. 18 (c) "Fifth wheel trailer" means a recreation vehicle mounted on 19 wheels, designed to provide temporary living quarters for recreational, 20 camping or travel use that complies with all the applicable federal 21 vehicle regulations and is of such size and weight as to not require a 22 special highway movement permit when towed by a motorized vehicle 23 equipped with a towing mechanism that is mounted above or forward of the 24 tow vehicle's rear axle. 25 (d) "Folding camping trailer" means a recreation vehicle mounted on 26 wheels, designed to provide temporary living quarters for recreational, 27 camping or travel use that complies with all the applicable federal 28 vehicle regulations and is constructed with collapsible partial side 29 walls that fold for towing by another vehicle and unfold at the camp- 30 site. 31 (e) "Truck camper" means a recreation vehicle designed to be loaded 32 onto the back of a pickup truck to provide temporary living quarters for 33 recreational, camping or travel use; provided, however, that nothing in 34 this paragraph shall authorize a dealer to sell or lease new pickup 35 trucks, or include pickup trucks within the definition of "recreation 36 vehicle", and provided, further, that nothing in this paragraph shall 37 remove a dealer of new pickup trucks from subdivision seven of section 38 four hundred sixty-two of the vehicle and traffic law. 39 (f) "Park model RV" means a recreation vehicle that is: 40 (i) designed and marketed as temporary living quarters for recreation- 41 al, camping, travel, or seasonal use; 42 (ii) not permanently affixed to real property for use as a permanent 43 dwelling; 44 (iii) built on a single chassis mounted on wheels; and 45 (iv) certified by the manufacturer as complying with the ANSI A119.5, 46 Park Model RV Standard. 47 12. "Supplier" means any person, firm, corporation or business entity 48 that engages in the manufacturing of recreation vehicle parts, accesso- 49 ries or components. 50 13. "Transient customer" means a customer who is temporarily traveling 51 through a dealer's area of sales responsibility. 52 14. "Warrantor" means any person, firm, corporation, or business enti- 53 ty, including any manufacturer, distributor or supplier that provides a 54 written warranty to the consumer in connection with a new recreation 55 vehicle or parts, accessories, or components thereof. The term does not 56 include service contracts, mechanical or other insurance or extendedS. 8379 4 1 warranties sold for separate consideration by a dealer or other person 2 not controlled by a manufacturer or distributor. 3 § 1101. Written agreements/designated territories. 1. A manufacturer 4 or distributor may not sell a recreation vehicle in this state to or 5 through a dealer without having first entered into a manufacturer/dealer 6 agreement with a dealer which has been signed by both parties. 7 2. The manufacturer or distributor shall designate the area of sales 8 responsibility exclusively assigned to a dealer in the 9 manufacturer/dealer agreement and may not change such area or contract 10 with another dealer for sale of the same line-make in the designated 11 area during the duration of the agreement. 12 3. The area of sales responsibility may not be reviewed or changed 13 without the consent of both parties until one year after the execution 14 of the manufacturer/dealer agreement. 15 4. A recreation vehicle dealer may not sell a new recreation vehicle 16 in this state without having first entered into a manufacturer/dealer 17 agreement with a manufacturer or distributor which has been signed by 18 both parties. 19 § 1102. Manufacturer initiated termination, cancellation, and alter- 20 ation of a dealership. 1. A manufacturer or distributor, directly or 21 through any authorized officer, agent or employee, may not terminate, 22 cancel or fail to renew a manufacturer/dealer agreement without good 23 cause. If the manufacturer or distributor terminates, cancels or fails 24 to renew the manufacturer/dealer agreement with good cause section elev- 25 en hundred four of this article does not apply. 26 2. The manufacturer or distributor has the burden of showing good 27 cause for terminating, canceling, or failing to renew a 28 manufacturer/dealer agreement with a dealer. For purposes of determining 29 whether there is good cause for the proposed action, any of the follow- 30 ing factors may be considered: 31 (a) The extent of the affected dealer's penetration in the area of 32 sales responsibility. 33 (b) The nature and extent of the dealer's investment in its business. 34 (c) The adequacy of the dealer's service facilities, equipment, parts, 35 supplies, and personnel. 36 (d) The effect of the proposed action on the community. 37 (e) The extent and quality of the dealer's service under recreation 38 vehicle warranties. 39 (f) The dealer's failure to follow agreed-upon procedures or standards 40 related to the overall operation of the dealership. 41 (g) The dealer's performance under the terms of its 42 manufacturer/dealer agreement. 43 (h) Violation of the manufacturer/dealer agreement. 44 3. Except as otherwise provided in this section, a manufacturer or 45 distributor shall provide a dealer with at least ninety days prior writ- 46 ten notice of termination, cancellation, or nonrenewal of the 47 manufacturer/dealer agreement in the event the dealer is being termi- 48 nated for good cause. 49 (a) The notice must state all reasons for the proposed termination, 50 cancellation, or nonrenewal and if the termination, cancellation or 51 nonrenewal is based on lack of performance, the dealer's stocking histo- 52 ry and reasonable market performance must be given consideration. A 53 dealer's duty to cure and evaluation of same will include consideration 54 of seasonal volatility of the market. The notice must further state that 55 if, within thirty days following receipt of the notice, the dealer 56 provides to the manufacturer or distributor a written notice of intentS. 8379 5 1 to cure all claimed deficiencies, the dealer will then have ninety days 2 following receipt of the original notice to rectify the deficiencies. 3 (b) If the deficiencies are rectified within ninety days, the manufac- 4 turer's or distributor's notice is voided. If the dealer fails to 5 provide the notice of intent to cure the deficiencies or fails to cure 6 the deficiencies in the prescribed time period, the termination, cancel- 7 lation, or nonrenewal takes effect as provided in the original notice. 8 (c) The notice period may be reduced to thirty days if the manufactur- 9 er's or distributor's grounds for termination, cancellation, or nonrene- 10 wal are due to any of the following good cause factors: 11 (i) a dealer or one of its owners being convicted of, or entering a 12 plea of nolo contendere to, a felony; 13 (ii) the abandonment or closing of the business operations of the 14 dealer for ten consecutive business days unless the closing is due to an 15 act of God, strike, labor difficulty, or other cause over which the 16 dealer has no control; 17 (iii) a significant misrepresentation by the dealer materially affect- 18 ing the business relationship; 19 (iv) a suspension or revocation of the dealer's license, or refusal to 20 renew the dealer's license, by the department; 21 (v) a material violation of this article which is not cured within 22 thirty days after the written notice by the manufacturer; or 23 (vi) a declaration by the dealer of bankruptcy, insolvency or the 24 occurrence of an assignment for the benefit of creditors or bankruptcy. 25 § 1103. Dealer initiated termination, cancellation, and alteration of 26 a dealership. 1. A dealer may terminate or cancel its 27 manufacturer/dealer agreement with a manufacturer or distributor with or 28 without good cause by giving thirty days written notice. If the termi- 29 nation or cancellation is for good cause, the notice must state all 30 reasons for the proposed termination or cancellation and must further 31 state that if, within thirty days following receipt of the notice, the 32 manufacturer or distributor provides to the dealer a written notice of 33 intent to cure all claimed deficiencies, the manufacturer or distributor 34 will then have ninety days following receipt of the original notice to 35 rectify the deficiencies. If the deficiencies are rectified within nine- 36 ty days, the dealer's notice is voided. If the manufacturer or distribu- 37 tor fails to provide the notice of intent to cure the deficiencies or 38 fails to cure the deficiencies in the time period prescribed, the pend- 39 ing termination or cancellation shall take as provided in the original 40 notice. 41 2. If the dealer terminates, cancels or fails to renew the 42 manufacturer/dealer agreement without good cause, the terms of section 43 eleven hundred four of this article do not apply. If the dealer termi- 44 nates, cancels or fails to renew the manufacturer/dealer agreement with 45 good cause, section eleven hundred four of this article would apply. 46 3. If the dealer terminates for cause and has new and untitled inven- 47 tory on hand subject to the termination, that inventory may be sold 48 pursuant to subdivision two of section eleven hundred four of this arti- 49 cle. 50 4. The dealer has the burden of showing good cause. The term "good 51 cause" for the proposed termination, cancellation or nonrenewal action 52 by a dealer includes, but is not limited to: 53 (a) A manufacturer or distributor being convicted of, or entering a 54 plea of nolo contendere to, a felony. 55 (b) The business operations of the manufacturer or distributor have 56 been abandoned or closed for ten consecutive business days, unless theS. 8379 6 1 closing is due to an act of God, strike, labor difficulty, or other 2 cause over which the manufacturer or distributor has no control. 3 (c) A significant misrepresentation by the manufacturer or distributor 4 materially affecting the business relationship. 5 (d) A material violation of this article which is not cured within 6 thirty days after written notice by the dealer. 7 (e) A material violation of the dealer agreement by the manufacturer 8 or distributor. 9 (f) A declaration by the manufacturer or distributor of bankruptcy, 10 insolvency, or the occurrence of an assignment for the benefit of credi- 11 tors or bankruptcy. 12 § 1104. Repurchase of inventory. 1. If the manufacturer/dealer agree- 13 ment is terminated, canceled, or not renewed by the manufacturer or 14 distributor as defined in section eleven hundred two of this article 15 without good cause or if the dealer terminates or cancels the 16 manufacturer/dealer agreement for good cause as defined in section elev- 17 en hundred three of this article, and the manufacturer or distributor 18 fails to cure the claimed deficiencies as provided in such section, the 19 manufacturer shall, at the election of the dealer and within forty-five 20 days after termination, cancellation, or nonrenewal, repurchase: 21 (a) all new, untitled recreation vehicles to which the dealer can show 22 clear title and that were acquired from the manufacturer or distributor 23 within eighteen months before the effective date of the notice of termi- 24 nation, cancellation, or nonrenewal that have not been used, except for 25 demonstration purposes, and that have not been altered or damaged, at 26 one hundred percent of the net invoice cost, including transportation, 27 less applicable rebates and discounts to the dealer. In the event any of 28 the vehicles repurchased pursuant to this subdivision are damaged, but 29 do not trigger a consumer disclosure requirement, the amount due the 30 dealer shall be reduced by the cost to repair the vehicle. Damage prior 31 to delivery to dealer that is disclosed at the time of delivery will not 32 disqualify repurchase under this provision; 33 (b) all undamaged accessories and proprietary parts sold to the dealer 34 for resale within the twelve months prior to termination, cancellation, 35 or nonrenewal, if accompanied by the original invoice, at one hundred 36 five percent of the original net price paid to the manufacturer or 37 distributor to compensate the dealer for handling, packing, and shipping 38 the parts; and 39 (c) any properly functioning diagnostic equipment, special tools, 40 current signage, or other equipment and machinery which was purchased by 41 the dealer upon the manufacturer or distributor's request within five 42 years prior to the termination, cancellation, or nonrenewal and which 43 can no longer be used in the normal course of the dealer's ongoing busi- 44 ness. 45 2. Sale of remaining inventory after termination. 46 (a) The department shall not prohibit a new recreation vehicle dealer 47 from selling the remaining in-stock recreation vehicles of a line-make 48 subject to a dealer agreement after that dealer agreement has been 49 terminated or not renewed pursuant to the provisions of section eleven 50 hundred two or eleven hundred three of this article. 51 (b) If recreation vehicles of a line-make that was subject to a termi- 52 nated dealer agreement are not repurchased or required to be repurchased 53 by the manufacturer or distributor, the dealer may continue to sell all 54 recreation vehicles that were subject to the terminated dealer agreement 55 and were in the dealer's inventory on the effective date of the termi-S. 8379 7 1 nation until those recreation vehicles are no longer in the dealer's 2 inventory. 3 § 1105. Transfer of dealership/family succession. 1. If a dealer 4 desires to make a change in ownership by the sale of the business 5 assets, stock transfer, or otherwise, the dealer shall give the manufac- 6 turer or distributor written notice at least fifteen business days 7 before the closing, including all supporting documentation as may be 8 reasonably required by the manufacturer or distributor to determine if 9 an objection to the sale may be made. In the absence of a breach by the 10 selling dealer of its dealer agreement or this chapter, the manufacturer 11 or distributor shall not object to the proposed change in ownership 12 unless the prospective transferee: 13 (a) has previously been terminated by the manufacturer or distributor 14 for breach of its dealer agreement; 15 (b) has been convicted of a felony or any crime of fraud, deceit, or 16 moral turpitude; 17 (c) lacks any license required by law; 18 (d) does not have an active line of credit sufficient to purchase a 19 manufacturer's or distributor's product; or 20 (e) has undergone in the last ten years bankruptcy, insolvency, a 21 general assignment for the benefit of creditors, or the appointment of a 22 receiver, trustee, or conservator to take possession of the transferee's 23 business or property. 24 2. If the manufacturer or distributor objects to a proposed change of 25 ownership, the manufacturer or distributor shall give written notice of 26 its reasons to the dealer within ten business days after receipt of the 27 dealer's notification and complete documentation. The manufacturer or 28 distributor has the burden of proof with regard to its objection. If the 29 manufacturer or distributor does not give timely notice of its 30 objection, the change or sale shall be deemed approved. 31 3. It is unlawful for a manufacturer or distributor to fail to provide 32 a dealer an opportunity to designate, in writing, a family member as a 33 successor to the dealership in the event of the death, incapacity, or 34 retirement of the dealer. It is unlawful to prevent or refuse to honor 35 the succession to a dealership by a family member of the deceased, inca- 36 pacitated, or retired dealer unless the manufacturer or distributor has 37 provided to the dealer written notice of its objections within ten days 38 after receipt of the dealer's modification of the dealer's succession 39 plan. In the absence of a breach of the dealer agreement, the manufac- 40 turer or distributor may object to the succession for the following 41 reasons only: 42 (a) conviction of the successor of a felony or any crime of fraud, 43 deceit, or moral turpitude; 44 (b) bankruptcy or insolvency of the successor during the past ten 45 years; 46 (c) prior termination by the manufacturer or distributor of the 47 successor for breach of a dealer agreement; 48 (d) the lack of an active line of credit for the successor sufficient 49 to purchase the manufacturer's or distributor's product; or 50 (e) the lack of any license for the successor required by law. 51 4. The manufacturer or distributor has the burden of proof regarding 52 its objection. However, a family member may not succeed to a dealership 53 if the succession involves, without the manufacturer's or distributor's 54 consent, a relocation of the business or an alteration of the terms and 55 conditions of the manufacturer/dealer agreement. 56 § 1106. Warranty obligations. 1. Each warrantor shall:S. 8379 8 1 (a) specify in writing to each of its dealers obligations, if any, for 2 preparation, delivery, and warranty service on its products; 3 (b) compensate the dealer for warranty service required of the dealer 4 by the warrantor; and 5 (c) provide the dealer the schedule of compensation to be paid and the 6 time allowances for the performance of any work and service. The sched- 7 ule of compensation must include reasonable compensation for diagnostic 8 work as well as warranty labor. 9 2. Time allowances for the diagnosis and performance of warranty labor 10 must be reasonable for the work to be performed. In the determination of 11 what constitutes reasonable compensation under this section, the princi- 12 pal factors to be given consideration shall be the actual wage rates 13 being paid by the dealer, and the actual retail labor rate being charged 14 by the dealers in the community in which the dealer is doing business. 15 Such comparisons shall be with dealers of similar size, capability and 16 investment. The compensation of a dealer for warranty labor may not be 17 less than the lowest retail labor rates actually charged by the dealer 18 for like non-warranty labor as long as such rates are reasonable. 19 3. The warrantor shall reimburse the dealer for any warranty part, 20 accessory or complete component at actual wholesale cost plus a minimum 21 thirty percent handling charge up to a maximum of one hundred fifty 22 dollars and the cost, if any, of freight to return such parts, compo- 23 nents, or accessories to the warrantor. 24 4. Warranty audits of dealer records may be conducted by the warrantor 25 on a reasonable basis, and dealer claims for warranty compensation may 26 not be denied except for cause, such as performance of non-warranty 27 repairs, material noncompliance with the warrantor's published policies 28 and procedures, lack of material documentation, fraud, or misrepresen- 29 tation. 30 5. The dealer shall submit warranty claims within forty-five days 31 after completing work. 32 6. The dealer shall immediately notify the warrantor in writing upon 33 receipt of any written complaints from a consumer regarding any warranty 34 repairs. 35 7. The warrantor shall disapprove warranty claims in writing within 36 forty-five days after the date of submission by the dealer in the manner 37 and form prescribed by the warrantor. Claims not specifically disap- 38 proved in writing within forty-five days shall be construed to be 39 approved and must be paid within sixty days of submission. 40 8. It is a violation of this article for any warrantor to: 41 (a) fail to perform any of its warranty obligations with respect to 42 its warranted products; 43 (b) fail to include, in written notices of factory campaigns to recre- 44 ation vehicle owners and dealers, the expected date by which necessary 45 parts and equipment, including tires and chassis or chassis parts, will 46 be available to dealers to perform the campaign work. The warrantor may 47 ship parts to the dealer to effect the campaign work, and, if such parts 48 are in excess of the dealer's requirements, the dealer may return unused 49 parts to the warrantor for credit after completion of the campaign; 50 (c) fail to compensate any of its dealers for authorized repairs 51 effected by the dealer on recreation vehicles or products damaged in 52 manufacture or transit to the dealer, if the carrier is designated by 53 the warrantor, factory branch, distributor, or distributor branch; 54 (d) fail to compensate any of its dealers in accordance with the sche- 55 dule of compensation provided to the dealer pursuant to this section if 56 performed in a timely and competent manner;S. 8379 9 1 (e) intentionally misrepresent in any way to purchasers of recreation 2 vehicles that warranties with respect to the manufacture, performance, 3 or design of the vehicle are made by the dealer as warrantor or co-war- 4 rantor; or 5 (f) require the dealer to make warranties to customers in any manner 6 related to the manufacture of the recreation vehicle. 7 9. It is a violation of this article for any dealer to: 8 (a) fail to perform pre-delivery inspection functions, as specified by 9 the warrantor, in a competent and timely manner; 10 (b) fail to perform warranty service work authorized by the warrantor 11 in a reasonably competent and timely manner on any transient customer's 12 vehicle of the same line-make; 13 (c) fail to accurately document the time spent completing each repair, 14 the total number of repair attempts conducted on a single unit, and the 15 number of repair attempts for the same repair conducted on a single 16 vehicle; 17 (d) fail to maintain written records, including a consumer's signa- 18 ture, regarding the amount of time a unit is stored for the consumer's 19 convenience during a repair; or 20 (e) make fraudulent warranty claims or misrepresent the terms of any 21 warranty. 22 10. A dealer shall take reasonable steps to notify a warrantor of a 23 second repair attempt, if the dealer has knowledge of both attempts, 24 which impairs the use or safety of the vehicle. Failure to make such 25 notification is not a cause for termination. 26 § 1107. Indemnification. Notwithstanding the terms of any manufactur- 27 er-dealer agreement, it is a violation of this article for: 28 1. A warrantor to fail to indemnify and hold harmless its new recre- 29 ation vehicle dealer against any losses or damages to the extent that 30 the losses or damages are caused by the negligence or willful misconduct 31 of the warrantor. A new recreation vehicle dealer may not be denied 32 indemnification for failing to discover, disclose, or remedy a defect in 33 the design or manufacturing of a new recreation vehicle or new recre- 34 ation trailer. A new recreation vehicle dealer may be denied indemnifi- 35 cation if the new recreation vehicle dealer fails to remedy a known and 36 announced defect in accordance with the written instructions of a 37 warrantor for whom the new recreation vehicle dealer is obligated to 38 perform warranty service. A new recreation vehicle dealer shall provide 39 to a warrantor a copy of any pending lawsuit in which allegations are 40 made that are covered by the provisions of this subdivision within ten 41 days after receiving such suit. Notwithstanding anything to the contra- 42 ry, this subdivision shall continue to apply even after the new recre- 43 ation vehicle or new recreation trailer is titled. 44 2. A new recreation vehicle dealer to fail to indemnify and hold harm- 45 less its warrantor against any losses or damages to the extent that the 46 losses or damages are caused by the negligence or willful misconduct of 47 the new recreation vehicle dealer. A warrantor shall provide to a new 48 recreation vehicle dealer a copy of any pending lawsuit or similar 49 proceeding in which allegations are made that come within the provisions 50 of this section within ten days after receiving such suit. Notwith- 51 standing anything to the contrary, this subdivision shall continue to 52 apply even after the new recreation vehicle or new recreation trailer is 53 titled. 54 § 1108. Inspection and rejection by the dealer. 1. Whenever a new 55 recreation vehicle is damaged prior to transit to the dealer or is 56 damaged in transit to the dealer when the carrier or means of transpor-S. 8379 10 1 tation has been selected by the manufacturer or distributor, the dealer 2 shall notify the manufacturer or distributor of the damage within the 3 timeframe specified in the manufacturer/dealer agreement and: 4 (a) request from the manufacturer or distributor authorization to 5 replace the components, parts, and accessories damaged or otherwise 6 correct the damage; or 7 (b) reject the vehicle within the timeframe set forth in subdivision 8 four of this section. 9 2. If the manufacturer or distributor refuses or fails to authorize 10 repair of such damage within ten days after receipt of notification, or 11 if the dealer rejects the recreation vehicle because of damage, owner- 12 ship of the new recreation vehicle shall revert to the manufacturer or 13 distributor. 14 3. The dealer shall exercise due care in custody of the damaged recre- 15 ation vehicle, but the dealer shall have no other obligations, financial 16 or otherwise, with respect to that recreational vehicle. 17 4. The timeframe for inspection and rejection by the dealer must be 18 part of the manufacturer/dealer agreement and may not be less than two 19 business days after the physical delivery of the recreation vehicle. 20 5. Any recreation vehicle that has, at the time of delivery to the 21 dealer, an unreasonable amount of miles on its odometer, as determined 22 by the dealer, may be subject to rejection by the dealer and reversion 23 of the recreation vehicle to the manufacturer or distributor. In no 24 instance shall a dealer deem an amount less than the distance between 25 the dealer and the manufacturer's factory or a distributor's point of 26 distribution, plus one hundred miles, as unreasonable. 27 § 1109. Coercion of dealer prohibited. 1. A manufacturer or distribu- 28 tor may not coerce or attempt to coerce a dealer to: 29 (a) purchase a product that the dealer did not order; 30 (b) enter into an agreement with the manufacturer or distributor; or 31 (c) enter into an agreement that requires the dealer to submit its 32 disputes to binding arbitration or otherwise waive rights or responsi- 33 bilities provided under this article. 34 2. As used in this section, the term "coerce" includes, but is not 35 limited to, threatening to terminate, cancel, or not renew a 36 manufacturer/dealer agreement without good cause or threatening to with- 37 hold product lines the dealer is entitled to purchase pursuant to the 38 manufacturer/dealer agreement or delay product delivery as an inducement 39 to amending the manufacturer/dealer agreement. 40 § 1110. Preservation of consumer protection statutes. Nothing 41 contained in this article shall in any way be construed or interpreted 42 to modify, limit or affect the full powers and duties heretofore or 43 hereafter granted to consumer protection agencies created by statute or 44 regulation enacted by state, city, county or local municipalities and 45 the rights of consumers to make complaints thereto, it being the intent 46 of this article to provide for the settlement and/or determination of 47 disputes under this article as between dealers and distributors as 48 defined in section eleven hundred of this article. 49 § 1111. Private actions. 1. A dealer who is or may be aggrieved by a 50 violation of this article shall be entitled to request an adjudicatory 51 proceeding, as prescribed in section eleven hundred fifteen of this 52 article, or in lieu thereof, sue for, and have, injunctive relief and 53 damages in any court of the state having jurisdiction over the parties. 54 In any such judicial action or proceeding, the court may award necessary 55 costs and disbursements plus a reasonable attorney's fee to any party.S. 8379 11 1 2. Whenever a dealer provides for the use of arbitration to resolve a 2 controversy arising out of or relating to such contract, arbitration may 3 be used to settle such controversy only if after such controversy arises 4 all parties to such controversy consent in writing to use arbitration to 5 settle such controversy. 6 § 1112. Powers of the commissioner of motor vehicles. 1. In addition 7 to any other powers and duties of the commissioner of motor vehicles set 8 forth in the vehicle and traffic law, such commissioner shall have the 9 power to enforce the provisions of this article, in accordance with 10 section eleven hundred fifteen of this article. 11 2. The commissioner of motor vehicles shall prescribe such rules and 12 regulations as such commissioner shall deem necessary for the implemen- 13 tation of this section and section eleven hundred fifteen of this arti- 14 cle. 15 § 1113. Construction of article. The provisions of this article shall 16 be in addition to and not in lieu of those contained in the uniform 17 commercial code. 18 § 1114. Notice requirement. 1. A dealer shall not display for sale, 19 exchange or sell any new recreation vehicle, or any used recreation 20 vehicle, that was originally sold by a manufacturer or distributor for 21 distribution outside the United States without prominently displaying a 22 label on such recreation vehicle stating that "This recreation vehicle 23 was not sold by the manufacturer or distributor for distribution within 24 the United States. It may not have the same standard features, emissions 25 equipment, safety equipment, optional equipment, specifications and 26 warranty, or otherwise be identical to other recreation vehicles which 27 are sold by the manufacturer or distributor for distribution in the 28 United States". 29 2. Any person who violates this section and any person who knowingly 30 aids and abets any such violation of this section shall be liable to any 31 person aggrieved to the extent of any additional margin obtained or 32 obtainable on such purchase and resale. 33 § 1115. Adjudicatory proceedings. 1. Request for an adjudicatory 34 proceeding. (a) Any dealer who is or may be aggrieved by a violation of 35 this article may request mediation with the manufacturer or distributor. 36 The request for mediation shall be served by certified mail, or in such 37 manner as the dealer and the manufacturer or distributor have agreed. If 38 the dealer agrees to mediation, such mediation shall proceed in accord- 39 ance with the terms as agreed upon by the dealer and manufacturer or 40 distributor; provided, however, that if the dealer and manufacturer or 41 distributor have not agreed upon the terms of mediation (i) the dealer 42 and the manufacturer or distributor shall select a mediator within seven 43 days of service by the manufacturer or distributor of the request for 44 mediation; (ii) the mediation shall be completed within twenty-one days 45 of selection of the mediator, or within such period as the dealer and 46 the manufacturer or distributor shall agree; and (iii) the cost of medi- 47 ation shall be shared equally by the parties. If the matter is resolved 48 by mediation, a written memorandum of the agreement shall be executed by 49 the mediator, the dealer, and the manufacturer or distributor. 50 (b) If the matter has not been resolved by mediation, the dealer and 51 the manufacturer or distributor have not agreed to mediation, or the 52 mediation has not been completed within the period set forth in subpara- 53 graph (ii) of paragraph (a) of this subdivision, the manufacturer or 54 distributor may file with the commissioner of motor vehicles a request 55 for an adjudicatory proceeding pursuant to this section. The request 56 shall be in writing and contain a short and plain statement of the factsS. 8379 12 1 relied upon by the dealer to support a claim that the manufacturer or 2 distributor has violated one or more specific provisions of this article 3 together with a request for a specific remedy other than damages. The 4 request shall be accompanied by copies of all correspondence between the 5 dealer and the manufacturer or distributor and other documents relevant 6 to the claims made in the request. The request shall be accompanied by a 7 non-refundable filing fee of two thousand dollars. 8 (c) A true copy of the request with copies of all documents filed with 9 the request shall be served upon the manufacturer or distributor at the 10 same time as the request is filed with the commissioner of motor vehi- 11 cles by transmitting such documents in any manner specifically permitted 12 under the terms of the agreement or, if no such manner is specified in 13 such agreement, then by certified mail, return receipt requested, 14 addressed to the officer or employee of the manufacturer or distributor 15 from whom the dealer has received correspondence relevant to the claims 16 made in the request. A certificate of service shall accompany the 17 request. 18 (d) The hearing shall be at such time and place as the commissioner of 19 motor vehicles shall prescribe. The commissioner of motor vehicles shall 20 mail to the dealer and the manufacturer or distributor a notice stating 21 the name of the presiding officer assigned to the matter, and the place 22 and time of the hearing. The hearing shall be commenced as soon as prac- 23 ticable, but in no event sooner than sixty days from the date of the 24 notice. 25 (e) The notice shall be sent by ordinary mail to the address of the 26 dealer or attorney shown in the request and to the address to which the 27 copy of the request was sent as shown in the certificate of service or 28 such other address as the manufacturer or distributor has designated for 29 receiving such notices. The notice shall advise the manufacturer or 30 distributor of the right to submit within twenty days of receipt of such 31 notice a short and plain statement of answers to the allegations of the 32 request and of facts on which the manufacturer or distributor relies in 33 defense of such allegations. Such answering statement shall be mailed to 34 the commissioner of motor vehicles or his or her designee and the dealer 35 at addresses shown on the notice. 36 (f) The dealer may submit within twenty days of receipt of the 37 manufacturer's or distributor's answering statement and additional 38 statement of facts and documentary material only to the extent of 39 answering new matter raised by the manufacturer or distributor. Except 40 as set forth in paragraph (g) of this subdivision, after receipt by a 41 party of the notice from the commissioner of motor vehicles, all corre- 42 spondence and other communications relating to the dispute shall be with 43 the presiding officer with copies to the opposing party. 44 (g) In accordance with the rules and regulations prescribed by the 45 commissioner of motor vehicles, each party shall disclose to the other 46 all documents or other materials, including those that may have been 47 maintained in electronic form, that the party intends to introduce at 48 the hearing. 49 2. Hearings and other proceedings and presiding officers. Except as 50 otherwise set forth in this section, hearings and other proceedings 51 authorized under this article shall comply with article three of the 52 state administrative procedure act and shall be presided over by the 53 presiding officer appointed by the commissioner of motor vehicles. The 54 presiding officer shall be admitted to practice as an attorney in the 55 state of New York and shall rule on all motions, procedures and other 56 legal objections.S. 8379 13 1 3. Resolution without a hearing. Either party may request resolution 2 of the dispute without a hearing. A request for a resolution without a 3 hearing shall be accompanied by sufficient information to permit a 4 determination of whether any unresolved material issue of fact exists, 5 and may be accompanied by a legal memorandum. The other party shall have 6 an opportunity to respond. Such a request shall be granted if the 7 presiding officer determines that no unresolved material issue of fact 8 is presented in the matter. No hearing shall be conducted until the 9 request for a resolution without a hearing has been determined. 10 4. Presiding officer decision. The presiding officer shall render a 11 decision upon the conclusion of the hearing or without a hearing pursu- 12 ant to subdivision three of this section not later than ninety days 13 after the close of the hearing or the granting of the request for resol- 14 ution without a hearing. The decision of the presiding officer shall be 15 based on the preponderance of the evidence. The presiding officer shall 16 prepare a decision which shall include: (a) findings of fact; (b) a 17 determination on each charge; and (c) in the event of a determination of 18 a violation of this article, the remedy to be ordered. The decision of 19 the presiding officer shall be deemed the determination of the commis- 20 sioner of motor vehicles. 21 5. Litigation costs. In any administrative proceeding pursuant to this 22 section, each party shall bear its own litigation costs and attorneys' 23 fees. 24 6. Penalties. Any party to a proceeding held pursuant to this section 25 shall comply with the commissioner of motor vehicle's decision in such 26 proceeding, unless a stay or extension of the date for compliance is 27 granted by such commissioner or a court of competent jurisdiction. If, 28 after notice to such party and an opportunity to respond, such commis- 29 sioner finds that a party has not complied with such commissioner's 30 decision by the designated date of compliance, unless a stay or exten- 31 sion of such date has been granted, such commissioner, in addition to 32 any other enforcement powers such commissioner holds, may assess such 33 party a civil penalty not to exceed one thousand dollars per day of 34 noncompliance. Civil penalties assessed under this section shall be paid 35 to such commissioner for deposit in the state treasury, and unpaid civil 36 penalties may be recovered by such commissioner in a civil action in the 37 name of such commissioner. In addition, as an alternative to such civil 38 action and provided that no proceeding for judicial review shall then be 39 pending and the time for initiation of such proceeding shall have 40 expired, such commissioner may file with the county clerk of the county 41 in which the dealer, manufacturer or distributor is located a final 42 order of such commissioner containing the amount of the penalty 43 assessed. The filing of such final order shall have the full force and 44 effect of a judgment duly docketed in the office of such clerk and may 45 be enforced in the same manner and with the same effect as that provided 46 by law in respect to executions issued against property upon judgments 47 by a court of record. 48 § 1116. Judicial review. A decision of the presiding officer under 49 section eleven hundred fifteen of this article shall be subject to 50 review by the supreme court in the manner provided by article seventy- 51 eight of the civil practice law and rules. 52 § 1117. Separability. If any part or provision of this article or the 53 application thereof to any person or circumstance be adjudged invalid by 54 any court of competent jurisdiction, such judgment shall be confined in 55 its operation to the part, provision or application directly involved in 56 the controversy in which such judgment shall have been rendered andS. 8379 14 1 shall not affect or impair the validity of the remainder of this article 2 or the application thereof to other persons or circumstances. 3 § 1118. Savings clause. Nothing in this article shall prohibit, limit, 4 restrict or impose conditions on: 5 1. The business activities (including, without limitation, the deal- 6 ings with manufacturers or distributors and their representatives and 7 affiliates) of any person that is primarily engaged in the business of 8 rental of recreation vehicles and activities incidental to that business 9 provided that (a) any recreation vehicles sold by such person are limit- 10 ed to used recreation vehicles that have been previously used exclusive- 11 ly and regularly by such person in the conduct of business and used 12 recreation vehicles traded in on recreation vehicles sold by such 13 person, (b) warranty repairs performed by such person on recreation 14 vehicles are limited to those recreation vehicles that it owns, previ- 15 ously owned or takes in trade, and (c) recreation vehicle financing 16 provided by such person to retail consumers for recreation vehicles is 17 limited to vehicles sold by such person in the conduct of business; or 18 2. The direct or indirect ownership, affiliation or control of a 19 person described in subdivision one of this section. 20 § 3. This act shall take effect on the one hundred eightieth day after 21 it shall have become a law and shall apply to any and all 22 manufacturer/dealer agreements entered into on or after such effective 23 date.
