Proposed rules for the Emergency Vehicle Lemon Law arbitration program

Part 304 of Title 13 of the NYCRR

ARBITRATION PROGRAM REGULATIONS

Pursuant to General Municipal Law, Article 5-A, section 109-d
Title 13 NYCRR Chap. VIII Part 304
Municipal Consumer Warranty on Emergency Vehicles – Arbitration Program Regulations

Part 304.1 Purpose

(a) These regulations are promulgated pursuant to General Municipal Law (“GML”), Article 5-A, section 109-d, added by chapter 387 of the Laws of 2018.  They set forth the procedures for the operation of an alternative arbitration mechanism (the “Program”) as required by GML section 109-d(3)(b)(i).

(b) These regulations are designed to promote the independent, speedy, efficient and fair disposition of disputes concerning defective ambulances and fire vehicles.

Part 304.2 Definitions

(a) Unless otherwise stated, terms used in these regulations are as defined in GML section 109-d.

(b) The term “Administrator” shall mean a professional arbitration firm or individual appointed by the Attorney General to administer the Program.

Part 304.3 Appointment of Administrator

(a) The Attorney General shall appoint an Administrator or Administrators to a definite term not to exceed two years.  The term shall be renewable.

(b) The following criteria shall be considered in the selection of an Administrator: capability, objectivity, non-affiliation with a manufacturer’s arbitration program, reliability, experience, financial stability, extent of geographic coverage, and fee structure.

(c) The Attorney General shall give appropriate public notice at least 60 days prior to the expiration of an Administrator’s term inviting any interested qualified party to apply in writing for the position of Administrator within 30 days from the date of the public notice.

(d) Upon a vacancy occurring prior to the expiration of an Administrator’s term, the time periods in subdivision (c) shall not apply and the Attorney General shall take appropriate steps to assure the continued administration of the Program.

Part 304.4 Appointment of Administrator

(a) The Attorney General shall prescribe and make available “Request for Arbitration” forms for GML section 109-d claims.  To apply for arbitration under the Program, a municipal consumer shall obtain, complete and submit the appropriate form to the Attorney General.

(b) Those municipal consumers wishing a hearing on documents only shall so indicate on the form.

(c) The municipal consumer shall indicate on the form its choice of remedy (i.e., either refund or comparable replacement vehicle), in the event the arbitrator rules in favor of the municipal consumer.  Such choice shall be followed by the arbitrator unless the municipal consumer advises the Administrator in writing of a change in its choice of remedy prior to the arbitrator’s rendering of a decision.

(d) Upon receipt, the Attorney General shall date-stamp and assign a case number to the form.

(e) The Attorney General shall review the submitted form for completeness and eligibility and shall either accept it or reject it.

(f) If the form is rejected by the Attorney General, the Attorney General shall promptly return the form, notifying the municipal consumer in writing of the reason(s) for the rejection and, where possible, inviting the municipal consumer to correct the deficiencies.

(g) If the form is accepted by the Attorney General, the Attorney General shall refer it to the Administrator for processing.  The Attorney General shall promptly notify the municipal consumer in writing of the acceptance of the form and of its referral to the Administrator.  The Attorney General shall prescribe a filing fee to be paid by the municipal consumer.  Such notice shall also advise the municipal consumer to pay the prescribed filing fee directly to the Administrator.

(h) If, after 30 days from the date of the notice of acceptance, the Administrator fails to receive the prescribed filing fee, the Administrator shall promptly advise the municipal consumer in writing that unless such fee is received within 60 days from the date of the first notice, the form will be returned and the case marked closed.  After such time, if the municipal consumer wishes to pursue a claim under the Program, the municipal consumer must submit a new form to the Attorney General.

(i) Participation in any informal dispute resolution mechanism that is not binding on the municipal consumer shall not affect the eligibility of a municipal consumer to participate in the Program.

Part 304.5 Filing Date

On the day the Administrator receives the prescribed filing fee, the Administrator shall date stamp the “Request for Arbitration” form.  Such date shall be considered the “filing date”.

Part 304.6 Assignment of Arbitrator

(a) After the filing date, the Administrator shall assign an arbitrator to hear and decide the case.  Notice of assignment shall be mailed to the arbitrator and the parties along with a copy of these regulations and GML section 109-d.

(b) The arbitrator assigned shall not have any bias, any financial or personal interest in the outcome of the hearing, or any current connection to the sale, distribution or manufacture of ambulances or fire vehicles.

(c) Upon a finding by the Administrator, at any stage of the process, of grounds to disqualify the arbitrator, the Administrator shall dismiss the arbitrator and assign another arbitrator to the case.

(d) If any arbitrator should resign, die, withdraw or be unable to perform the duties of their position, the Administrator shall assign another arbitrator to the case and the period to render a decision shall be extended accordingly.

(e) Arbitrators shall undergo training established by the Administrator and the Attorney General.  This training shall include procedural techniques, the duties and responsibilities of arbitrators under the Programs, and the substantive provisions of GML section 109-d. 

Part 304.7 Scheduling of Arbitration Hearing

(a) Each manufacturer of ambulances or fire vehicles sold to municipal consumers in New York shall notify the Attorney General in writing, within 10 days after the effective date of these regulations of the name, address and telephone number of the person designated to receive notices under the GML section 109-d Program.  Such information shall be presumed correct unless updated by the manufacturer.

(b) The arbitration shall be conducted as an oral hearing, which may be conducted in person or virtually, including by videoconference or other real-time electronic means, unless the municipal consumer has requested, on the “Request for Arbitration” form, a hearing on documents only and both parties agree to a documents only hearing; provided, however, that the parties may mutually agree in writing to change the mode of hearing.  Upon such change, the parties shall notify the Administrator who shall comply with the request and, where necessary, such request shall waive the 40 day limit in which a decision must be rendered.

(c) Within five days of the filing date, the Administrator shall send the manufacturer’s designee a copy of the municipal consumer’s completed form along with a notice that it may respond in writing.  Such response shall be sent in triplicate, within 15 days of the filing date, to the Administrator, who shall promptly forward one copy to the municipal consumer.

(d) The municipal consumer may respond in writing to the manufacturer’s submission within 25 days of the filing date.  Such response shall be sent in triplicate to the Administrator, who shall promptly forward a copy to the manufacturer.

(e) An oral hearing, where appropriate, shall be scheduled no later than 35 days from the filing date, unless a later date is agreed to by both parties.  The Administrator shall notify both parties of the date, time and place of the hearing at least eight days prior to its scheduled date.

(f) Hearings shall be scheduled to accommodate, where possible, time-of-day needs of the municipal consumer and the manufacturer, including evening and weekend hours.

(g) Hearings shall also be scheduled to accommodate geographic needs of the municipal consumer.  Regular hearing sites shall be established at locations designated by the Administrator.  No hearing site established by the Administrator shall be discontinued without the approval of the Attorney General.  In addition, where a regular site is more than 100 miles from the municipal consumer’s location, a hearing must be scheduled at the request of the municipal consumer at a location designated by the Administrator within 100 miles of the municipal consumer’s location.

(h) In unusual circumstances, a party may present its case by telephone, provided that adequate advance notice is given to the Administrator and to the other party.  In such cases, the arbitrator and both parties shall be included and the party requesting the telephonic hearing shall pay all costs associated therewith.

Part 304.8 Adjournments

Either party may make a request to reschedule the hearing.  Except in unusual circumstances, such request shall be made to the Administrator orally or in writing at least two business days prior to the hearing date.  Upon a finding of good cause, the arbitrator may reschedule the hearing.  In unusual circumstances, the arbitrator may reschedule the hearing at any time prior to its commencement.

Part 304.9 Request for Additional Information or Documents

(a) A party, by application in writing to the Administrator, may request the arbitrator to direct the other party to produce any documents or information.  The arbitrator shall, upon receiving such request, or on their own initiative, direct the production of documents or information which they believe will reasonably assist a party in presenting the party’s case or assist the arbitrator in deciding the case.  The arbitrator’s direction for the production of documents and information shall allow a reasonable time for the gathering and production of such documents and information.

(b) All documents and information forwarded in compliance with the arbitrator’s direction shall be legible and received no later than three business days prior to the date of the hearing.  Each party shall bear its own photocopying costs.

(c) Upon failure of a party to comply with the arbitrator’s direction to produce documents and/or information, the arbitrator may draw a negative inference concerning any issue involving such documents or information.

(d) The term “documents” in this section shall include, but not be limited to, relevant manufacturer’s service bulletins, dealer work orders, diagnoses, bills, and all communications relating to the municipal consumer’s claim.

(e) At the request of either party or on their own initiative, the arbitrator, when they believe it appropriate, may subpoena any witnesses to appear or documents to be presented at the hearing.

Part 304.10 Representation by Counsel or Third Party

Any party may be represented by counsel or assisted by any third party.

Part 304.11 Interpreters

Any party wishing an interpreter shall make the necessary arrangements and assume the costs for such service.

Part 304.12 Hearing Procedure

(a) The conduct of the hearing shall afford each party a full and equal opportunity to present its case.

(b) The arbitrator shall administer an oath or affirmation to each individual who testifies.

(c) Formal rules of evidence shall not apply; the parties may introduce any relevant evidence.

(d) The arbitrator shall receive in evidence a decision rendered in a previous arbitration which was not binding on the municipal consumer and give it such weight as the arbitrator deems appropriate.

(e) The arbitrator shall receive relevant evidence of witnesses by affidavit, and such affidavits shall be given such weight as the arbitrator deems appropriate.

(f) The arbitrator shall have discretion to examine or ride in the municipal consumer’s ambulance or fire vehicle.  Both parties shall be afforded the opportunity to be present and accompany the arbitrator on any such examination or ride.

(g) The municipal consumer shall first present evidence in support of its claim, and the manufacturer shall then present its evidence.  Each party may question the witnesses called by the other.  The arbitrator may question any party or witness at any time during the hearing.

(h) The arbitrator shall maintain decorum at the hearing.

(i) The arbitrator may request additional evidence after the closing of the hearing.  All such evidence shall be submitted to the Administrator for transmission to the arbitrator and the parties.

Part 304.13 Hearing on Documents Only

If the hearing is on documents only, all documents shall be submitted to the Administrator no later than 30 days from the filing date.  The arbitrator shall render a timely decision based on all documents submitted.

Part 304.14 Defaults

(a) Upon the failure of a party to appear at an oral hearing, the arbitrator shall nevertheless conduct the hearing and render a timely decision based on the evidence presented and documents contained in the file.

(b) If neither party appears at the hearing, the arbitrator shall return the case to the Administrator who shall close it and so notify the parties.

(c) In a documents-only hearing, where the manufacturer fails to respond to the claim, the arbitrator shall render a decision based upon the documents contained in the file.

Part 304.15 Withdrawal or Settlement Prior to Decision

(a) A municipal consumer may withdraw its request for arbitration at any time prior to decision.  If the Administrator is notified by the municipal consumer of its request to withdraw the claim within seven business days of the filing date, the Administrator shall refund the filing fee.

(b) If the parties agree to a settlement more than seven business days after the filing date but prior to the issuance of a decision, they shall notify the Administrator in writing of the terms of the settlement.  Upon the request of the parties, the arbitrator shall issue a decision reflecting the settlement.

Part 304.16 Decision

(a) The arbitrator shall render a decision within 40 days from the filing date which shall be in writing on a form prescribed by the Administrator and approved by the Attorney General.  The decision shall be dated and signed by the arbitrator.  An electronic signature authorized by the arbitrator shall be deemed a valid signature.

(b) In their decision, the arbitrator shall determine whether the municipal consumer qualifies for relief pursuant to GML section 109-d.  If the arbitrator finds that the municipal consumer qualifies, the arbitrator shall award the specific remedies prescribed by the statute.

(c) The decision shall specify the monetary award where applicable.  A calculation of the amount, in accordance with GML section 109-d shall be included in the decision.  The decision shall also award the prescribed filing fee to a successful municipal consumer.

(d) The decision shall, where applicable, require that any action required by the manufacturer be completed within 30 days from the date the Administrator notifies the manufacturer of the decision.

(e) The Administrator shall review the decision for technical completeness and accuracy and advise the arbitrator of any suggested technical corrections, such as computational, typographical or other minor corrections.  Such changes shall be made only with the consent of the arbitrator.

(f) After review, the Administrator shall, within 45 days of the filing date, mail a copy of the final decision to both parties, the arbitrator, and the Attorney General.  The date of mailing to the parties shall be date-stamped by the Administrator on the decision as the date of issuance.

(g) Failure to mail the decision to the parties within the specified time period or failure to hold the hearing within the prescribed time shall not invalidate the decision.

(h) The arbitrator’s decision is binding on both parties and is final, subject only to judicial review pursuant to CPLR, Article 75.  The decision shall include a statement to this effect.

Part 304.17 Record keeping

(a) The Administrator shall keep all records pertaining to each arbitration for a period of at least two years and shall make the records of a particular arbitration available for inspection upon written request by a party to that arbitration, and shall make records of all arbitrations available to the Attorney General upon written request.

(b) The Administrator shall maintain records and statistics for the Program, as required by GML §109-d(3)(c)(iii).

Part 304.18 Miscellaneous Provisions

(a) All communications between the parties and the arbitrator, other than at oral hearings, shall be directed to the Administrator.

(b) If any provision of these regulations or the application of such provision to any persons or circumstances shall be held invalid, the validity of the remainder of these regulations and the applicability of such provision to other persons or circumstances shall not be affected thereby.