N.Y. Comp. Codes R. & Regs. tit. 19 § 1210.2

Current through Register Vol. 46, No. 25, June 18, 2024

Section 1210.2 - Definitions

For the purposes of this Part:

(a) The term acceptable deposit account control agreement shall mean an agreement which identifies a deposit account having a balance of not less than $50,000 in the case of an applicant for certification as a manufacturer or a certificate holder certified as a manufacturer, not less than $25,000 in the case of an applicant for certification as a retailer or a certificate holder certified as a retailer, not less than $10,000 in the case of an applicant for certification as an installer or a certificate holder certified as an installer, and not less than $5,000 in the case of an applicant for certification as a mechanic or a certificate holder certified as a mechanic, and which grants the Department of State a security interest in and control of such deposit account; provided that:

(1) such agreement is in form provided by or otherwise acceptable to the Department of State; is executed by an applicant for certification or a certificate holder, as the depositor- debtor; is executed by the bank with which such deposit account is maintained, as depository; and includes:

(i) an agreement by the depository and the depositor-debtor that the Department of State may withdraw funds from the deposit account and apply such funds toward any permitted application, and that funds in the deposit account will be paid to the Department of State, upon written demand by the Department of State, for application by the Department of State toward any permitted application;

(ii) provisions granting the Department of State a security interest in the deposit account to secure the obligation of the depositor to pay the claims, pay the penalties, take the repairs or corrective actions, and satisfy the article 21-B orders and article 21-B judgments mentioned in subdivision (x) of this section, and to secure the right of the Department of State to withdraw funds from the account and to apply such funds toward any permitted applications;

(iii) provisions granting the Department of State control (as that term is used in article 9 of the Uniform Commercial Code) of the deposit account, including but not necessarily limited to an agreement by the depositor-debtor, the Department of State, and the depository that the depository will comply with instructions originated by the Department of State directing disposition of the funds in the account without further consent by the depositor- debtor;

(iv) an agreement by the depository that any security interest in, or right of recoupment or set off against, the account then held or thereafter acquired by the depository is and shall be subject and subordinate to the security interest granted to the Department of State;

(v) an agreement by the depositor-debtor and the depository that no withdrawal or other payment may be made from the account for any purpose (including but not limited to application toward any debt or obligation secured by or subject to any security interest or right of recoupment or set off now held or hereafter acquired by the depository), if such withdrawal or payment would cause the balance of the account to be reduced below the applicable minimum balance, without the written consent of the Department of State; and

(vi) such other certifications, acknowledgments, agreements, terms, and provisions as may be required by the Department of State;

(2) such deposit account is a deposit account (as that term is defined in section 9-102(a)(29) of the Uniform Commercial Code); has no stated date of maturity; and is not subject to any pledge, security interest, right of recoupment, or right of set off, other than the security interest granted to the Department of State; and

(3) the bank with which such deposit account is maintained is a bank (as that term is defined in section 9-102(a)(8) of the Uniform Commercial Code); is authorized to engage in the business of banking in the State of New York; has the State of New York as its jurisdiction for the purposes of section 9-304 of the Uniform Commercial Code; and is acceptable to the Department of State;

(b) The term acceptable letter of credit shall mean a letter of credit which:

(1) is in form provided by or otherwise acceptable to the Department of State;

(2) is issued by a bank or other financial institution which is qualified to do business in the State of New York and to issue letters of credit in the State of New York, and which is acceptable to the Department of State;

(3) names an applicant for certification or a certificate holder as the account party, and names the Department of State as the beneficiary;

(4) is in the sum of $50,000 in the case of an applicant for certification as a manufacturer or a certificate holder certified as a manufacturer, in the sum of $25,000 in the case of an applicant for certification as a retailer or a certificate holder certified as a retailer, in the sum of $10,000 in the case of an applicant for certification as an installer or a certificate holder certified as an installer, and in the sum of $5,000 in the case of an applicant for certification as a mechanic or a certificate holder certified as a mechanic;

(5) expressly provides that such letter of credit is irrevocable; is valid for a stated period of time of not less than one year; that such letter of credit will be automatically extended without amendment (other than expiration date) for a like period of time from the present or any future expiration date unless the issuer shall notify the Department of State in writing, by registered or certified mail, return receipt requested, received by the Department of State not less than 60 days prior to the present or any future expiration date, that the issuer elects not to extend such letter of credit; and that if the issuer gives such notice, the Department of State may draw upon such letter of credit up to the full amount thereof;

(6) provides any sum or sums, up to the stated limit mentioned in paragraph (4) of this subdivision, will be made available to the Department of State, and paid to the Department of State by the issuer, upon the presentation of the draft of the Department of State drawn on the issuer and accompanied by the statement signed by an employee or representative of the Department of State and indicating that the sums drawn are to be applied toward one or more permitted applications or that the Department of State has received notice of the issuer's election not to extend such letter of credit; and

(7) includes such other certifications, acknowledgments, agreements, terms, and provisions as may be required by the Department of State.

(c) The term acceptable surety bond shall mean a surety bond which:

(1) is in form provided by or otherwise acceptable to the Department of State;

(2) is executed by an applicant for certification or by a certificate holder, as principal, and by a surety company qualified to do business as a surety in the State of New York and acceptable to the Department of State, as surety;

(3) is in the principal amount of $50,000 in the case of an applicant for certification as a manufacturer or a certificate holder certified as a manufacturer, in the principal amount of $25,000 in the case of an applicant for certification as a retailer or a certificate holder certified as a retailer, in the principal amount of $10,000 in the case of an applicant for certification as an installer or a certificate holder certified as an installer, and in the principal amount of $5,000 in the case of an applicant for certification as a mechanic or a certificate holder certified as a mechanic;

(4) is payable to the Department of State;

(5) provides that the Department of State may apply payments under the surety bond, up to the stated principal amount of the surety bond, toward any permitted application; and

(6) includes such other certifications, acknowledgments, agreements, terms, and provisions as may be required by the Department of State.

(d) The term article 21-B shall mean article 21-B of the Executive Law, as currently enacted and as hereafter amended from time to time.

(e) The term article 21-B introductory course shall mean a three-hour course of instruction covering the requirements of article 21-B and of this Part and such other topics related to manufactured homes as the Department of State may deem to be appropriate, and provided by the Department of State or by an instructional provider approved by the Department of State.

(f) The term article 21-B judgment shall mean a judgment entered or made by a court of competent jurisdiction in an action or proceeding involving an allegation that a substantial defect exists in the delivered condition, installation, service, or construction of a manufactured home, including, but not limited to, a judgment which is made in an action or proceeding commenced to review an article 21-B order and which confirms, affirms, annuls, reverses, modifies, or otherwise affects such article 21-B order.

(g) The term article 21-B order shall mean:

(1) a consent order made pursuant to section 1210.18(f) (Resolution of disputes) of this Part;

(2) a decision made by an administrative law judge pursuant to section 1210.18(g) of this Part which has become final and binding;

(3) a decision and order made by the Secretary of State or his or her designee pursuant to section 1210.18(h) of this Part which confirms or supersedes a decision of an administrative law judge and which has become final and binding; or

(4) a consent order, a decision of an administrative law judge, or a decision and order of the Secretary of State or his or her designee, which is made pursuant to section 1210.18(f), (g) or (h) of this Part and which is reviewed in any judicial action or proceeding; provided, however, that if such consent order, decision, or decision and order is confirmed, affirmed, annulled, reversed, modified, or otherwise affected in such judicial action or proceeding or in any appeal taken in such judicial action or proceeding, the term article 21-B order shall mean such consent order, decision, or decision and order as so confirmed, affirmed, annulled, reversed, modified, or otherwise affected.

(h) The term certificate holder shall mean a person or business entity holding a valid certification as a manufacturer, retailer, installer, or mechanic.

(i) The term certification shall mean a certification issued by the Department of State to a manufacturer, retailer, installer, or mechanic pursuant to article 21-B.

(j) The term certified shall mean certified by the Department of State as a manufacturer, retailer, installer, or mechanic pursuant to article 21-B.

(k) The term complaining party shall mean any homeowner, manufacturer, retailer, installer, mechanic, or lending entity filing a complaint under the dispute resolution procedures described in section 1210.18 (Resolution of disputes) of this Part.

(l) The term equivalent of a high school graduate shall mean a person who:

(1) holds a high school equivalency diploma issued by an education department of any of the states of the United States, or a comparable diploma issued by any commonwealth, territory or possession of the United States or by the Canal Zone, or a report from the United States Armed Forces certifying such person's successful completion of the tests of general educational development, high school level; or

(2) establishes to the reasonable satisfaction of the Department of State that he or she can comprehend written manufactured home installation instructions, written manufactured home service instructions, and other similar written material on a level which is at least equivalent to a high school graduate.

(m) The term homeowner shall mean an owner of a manufactured home; provided, however, that the term homeowner shall not include the manufacturer of the manufactured home or a retailer who owns the manufactured home for the purposes of resale.

(n) The term HUD data plate shall mean the data plate required to be affixed to a manufactured home pursuant to 24 CFR section 3280.5, as currently in effect and as hereafter amended from time to time, or any similar regulation that may hereafter be promulgated by the United States Department of Housing and Urban Development.

(o) The term installer's warranty seal shall mean a New York State installer's warranty seal obtained by an installer from the Department of State pursuant to section 603(2) of the Executive Law.

(p) The term limited certificate shall mean a certificate issued to a person pursuant to section 1210.4(c) (Standards for certification as a manufacturer), 1210.5(d) (Standards for certification as a retailer), 1210.6(f) (Standards for certification as an installer), or 1210.7(f) (Standards for certification as a mechanic) of this Part.

(q) The terms manufactured home park and manufactured home tenant shall have the meanings ascribed to such terms in section 233 of the Real Property Law.

(r) The term manufactured housing shall mean one or more manufactured homes.

(s) The term manufactured housing unit shall mean a manufactured home.

(t) The term manufacturer's warranty seal shall mean a New York State manufacturer's warranty seal obtained by a manufacturer from the Department of State pursuant to section 603(1) of the Executive Law.

(u) The term non-retail sale shall mean:

(1) the sale of a manufactured home to a certified retailer for the purpose of resale by such certified retailer; or

(2) the resale of a manufactured home by a person who, in good faith, originally purchased such manufactured home for such person's personal residential use; or

(3) the sale of a manufactured home by a referee or any similar officer in connection with the foreclosure of a security interest, mortgage, or other lien in or on such manufactured home, or by a lending entity acting pursuant to a power of sale in any security agreement, mortgage, or other document creating a security interest, mortgage, or other lien in or on such manufactured home; or

(4) the sale of a manufactured home by the owner or operator of a manufactured home park to a new manufactured home tenant in such manufactured home park, provided that:

(i) such manufactured home was previously installed in such manufactured home park and was previously occupied by a former manufactured home tenant in such manufactured home park;

(ii) the owner or operator of such manufactured home park acquired such manufactured home from such former manufactured home tenant; and

(iii) such manufactured home is not moved or to be moved to a new site following the sale to such new manufactured home tenant.

(v) The term owner-occupant installer certificate shall mean a certificate issued to a person pursuant to section 1210.6(h) (Standards for certification as an installer) of this Part.

(w) The term Part 400 of this Title shall mean Part 400 (Hearing Rules of Procedure) of this Title (19 NYCRR section 400.1, et seq.), as currently in effect and as hereafter amended from time to time.

(x) The term permitted applications shall mean the manners in which the Department of State may apply funds withdrawn from a deposit account evidenced by an acceptable deposit account control agreement, or sums drawn under an acceptable letter of credit, or payments made under an acceptable surety bond, and shall include the following:

(1) payment of any claim arising by reason of any failure by the depositor, account party or principal, as the case may be, to comply with any applicable provision of article 21-B or this Part;

(2) payment of any penalty levied or assessed against the depositor, account party or principal, as the case may be, under article 21-B or this Part;

(3) payment for repairs or other corrective actions directed to be made or taken by any article 21-B order made against the depositor, account party or principal, as the case may be, or payment of such sums as may be required otherwise to satisfy such article 21-B order;

(4) payment for repairs or other corrective actions directed to be made or taken by any article 21-B judgment entered against the depositor, account party or principal, as the case may be, or payment of such sums as may be required otherwise to satisfy such article 21-B judgment;

(5) payment of any claim arising by reason of any failure by any employee holding a limited certificate to comply with any applicable provision of article 21-B or this Part while acting as an employee of the depositor, account party or principal, as the case may be;

(6) payment of any penalty levied or assessed under article 21-B or this Part against any employee holding a limited certificate in connection with any act or omission of such employee while acting as an employee of the depositor, account party or principal, as the case may be;

(7) payment for repairs or other corrective actions directed to be made or taken by any article 21-B order made against any employee holding a limited certificate in connection with any act or omission of such employee while acting as an employee of the depositor or principal, or payment of such sums as may be required otherwise to satisfy such article 21-B order; and

(8) payment for repairs or other corrective actions directed to be made or taken by any article 21-B judgment entered against any employee holding a limited certificate in connection with any act or omission of such employee while acting as an employee of the depositor or principal, or such sums as may be required otherwise to satisfy such article 21-B judgment.

(y) The term person shall mean an individual.

(z) The term required disclosure statement shall mean any written disclosure statement which a manufacturer, retailer, or lending entity is required to provide to the purchaser or purchasers of a manufactured home pursuant to any applicable Federal or State statute or regulation, and which is required to include a statement of all costs and expenses incidental to the purchase, financing and/or installation of such manufactured home.

(aa) The term responding parties shall mean the manufacturer, the retailer, and the installer of a manufactured home which is the subject of a complaint filed under the dispute resolution procedures described in section 1210.18 (Resolution of disputes) of this Part, and, if applicable, each mechanic who serviced such manufactured home, and the term responding party shall mean any one of the responding parties.

(ab) The term substantial defect shall be a defect or a number of defects or other conditions in the delivered condition, installation, service, or construction of a manufactured home which collectively can reasonably be expected to cost $500 or more to cure.

(ac) The term Uniform Code shall mean the New York State Uniform Fire Prevention and Building Code, as currently in effect and as hereafter amended from time to time.

(ad) The following terms shall have the meanings ascribed to such terms in section 601 of the Executive Law:

(1) business entity;

(2) delivered condition;

(3) installation;

(4) installer;

(5) lending entity;

(6) manufactured home;

(7) manufacturer;

(8) mechanic;

(9) retailer;

(10) service;

(11) State administrative agency;

(12) SAA; and

(13) advisory council.

N.Y. Comp. Codes R. & Regs. Tit. 19 § 1210.2

Amended New York State Register May 15, 2024/Volume XLVI, Issue 20, eff. 5/15/2024