New York Codes, Rules and Regulations
Title 15 - Department of Motor Vehicles
Chapter I - REGULATIONS OF THE COMMISSIONER
Subchapter I - Administrative Adjudication Of Traffic Violations
Part 127 - Safety Hearings
Section 127.13 - Adjudicatory proceedings

Universal Citation: 15 NY Comp Codes Rules and Regs ยง 127.13

Current through Register Vol. 46, No. 12, March 20, 2024

(a) This section applies to adjudicatory proceedings conducted pursuant to section 471-a of the Vehicle and Traffic Law.

(b) Request for a hearing. A request for a hearing shall be in writing and made on a form and in a manner prescribed by the commissioner. The request shall contain a short and plain statement of the facts relied upon by the dealer to support a claim that the franchiser has violated one or more specific provisions of article 17-a of the Vehicle and Traffic Law together with a request for a specific remedy other than damages. The request shall be accompanied by copies of all correspondence between the dealer and the franchiser and other documents relevant to the claims made in the request.

(c) Notice of hearing. The dealer and franchiser shall be given reasonable notice of a hearing. The notice shall include:

(1) a statement of the time, place and nature of the hearing;

(2) the addresses of the dealer and franchiser;

(3) the name and address of the presiding officer assigned to the matter;

(4) a statement of the legal authority and jurisdiction under which the hearing is to be held;

(5) a reference to the particular section of the statutes and rules involved, where possible;

(6) a short and plain statement of the matters asserted by the dealer;

(7) a statement advising the franchiser of the right to submit, within 20 days of receipt of such hearing notice, a short and plain statement of answers to the allegations of the request and of facts on which the franchiser relies in defense of such allegations;

(8) a statement advising the dealer of the right to submit, within 20 days of receipt of the franchiser answering statement an additional statement of facts and documentary material only to the extent of answering new matter raised by the franchiser;

(9) a statement that the dealer or franchiser may be represented by counsel; and

(10) a statement that interpreter services will be made available upon request of a deaf person, at no charge.

(d) Time and place of hearing. All hearings shall be commenced at the time and place specified in the notice of hearing, or as soon thereafter as practicable, but in no event sooner than 60 days from the date of the notice.

(e) Disclosure. At least 15 days prior to the commencement of a hearing, each party shall disclose to the other party all documents or other materials, including those that may have been, submit a copy of such disclosure to the presiding officer when disclosure to the other party is made.

(f) Recusal.

(1) A party may request recusal of a presiding officer. The request and the reason for it must be made in writing to the assigned presiding officer at the beginning of the hearing or as soon thereafter as the requestor receives information which forms the basis for such request, whichever occurs first. Denial of a request for recusal shall be reviewable by the Administrative Appeals Board under procedures established pursuant to articles 3-A of the Vehicle and Traffic Law, provided that a final, adverse determination is subsequently made which is appealable by the requestor to the Administrative Appeals Board.

(g) Conduct of hearings; evidence.

(1) The order of proof at a hearing shall be determined by the presiding officer. Testimony shall be given under oath or affirmation. The presiding officer, in his or her discretion, may exclude witnesses. The presiding officer may admit any relevant evidence in addition to oral testimony. Any witness may be questioned and/or cross-examined by the presiding officer, by the witness's counsel or representative, and by the party who did not call the witness.

(2) Rules governing the admissibility of evidence in a court of law are not applicable to hearings held by the department. Evidence which would not be admissible in court, such as hearsay, is admissible in a departmental hearing. The decision of the presiding officer shall be based upon a preponderance of the evidence.

(3) The privileges set forth in article 45 of the Civil Practice Law and Rules shall be applicable to adjudicatory proceedings conducted pursuant to this section.

(h) Adjournments. Adjournments of hearings may only be granted by the presiding officer responsible for the particular hearing, by a supervisor of such presiding officer. It is the department's policy to grant a request for adjournment for good cause if such request is made in writing and received at least seven days prior to the scheduled hearing and if no prior requests for adjournment have been made. Notwithstanding this policy, requests for adjournments made more than seven days prior to hearing may be denied by the presiding officer, or supervisor of the presiding officer, in their discretion. Grounds for such a denial include, but are not limited to, such a request being a second or subsequent request for adjournment, where there is reason to believe such request is merely an attempt to delay the holding of a hearing, or where an adjournment will significantly affect the availability of other witnesses scheduled to testify. Requests for adjournments within seven days of a scheduled hearing must be made in writing directly to the presiding officer. Such requests will generally not be granted. Such requests may be granted in the discretion of the presiding officer for good cause shown.

(i) Failure to appear; waiver. In any proceeding where no adjournment is requested or, if requested, is not granted, the failure of any party to appear shall be deemed to be a waiver of hearing. Upon any party's failure to appear, the presiding officer may receive testimony of available witnesses and enter evidence into the record.

(j) Resolution without a hearing. Either party may request a resolution of the dispute without a hearing. The request must be made in writing and must be received by the presiding officer at least 15 days prior to the scheduled hearing. The request must be accompanied by sufficient information to permit a determination of whether any unresolved material issue of fact exists and may be accompanied by a legal memorandum. A copy of such request and all supporting documentation must be served upon the other party when the request is submitted to the presiding officer. Proof of service upon the other party shall accompany the request to the presiding officer. The other party shall have the opportunity to respond to such request. Such response must be received by the presiding officer within 15 days of receipt of the request for resolution without a hearing. The response may be accompanied by a legal memorandum. A copy of any response must be served upon the requesting party when the response is submitted to the presiding officer. Proof of service upon the requesting party shall accompany the response to the presiding officer. If necessary, in order to allow the presiding officer to evaluate the request for a resolution without a hearing, the presiding officer may adjourn the scheduled hearing, with notice to all parties of the adjournment.

(k) The presiding officer shall render a decision not later than 90 days after the close of the hearing, or, if appropriate, the granting of a request for resolution without a hearing. The decision of the presiding officer shall be based upon the preponderance of the evidence. The presiding officer shall prepare a decision which shall include findings of fact, a determination on each charge, and, in the event of a determination of a violation, the remedy to be ordered.

Disclaimer: These regulations may not be the most recent version. New York may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.