(a) As used in this
section:
(1) "Consumer"
means the purchaser, lessee or transferee, other than for purposes of
resale, of a motor vehicle which is used primarily for personal, family or
household purposes and any other person entitled by the terms of the
manufacturer's warranty to enforce the obligations of such warranty;
* (2) "Motor vehicle" means a motor vehicle
excluding motorcycles and off-road vehicles, which was subject to a
manufacturer's express warranty at the time of original delivery and
either (i) was purchased, leased or transferred in this state within
either the first eighteen thousand miles of operation or two years from
the date of original delivery, whichever is earlier, or (ii) is registered
in this state;
* NB Effective until September 1, 2004
* (2) "Motor vehicle" means a motor vehicle
excluding off-road vehicles, which was subject to a manufacturer's express
warranty at the time of original delivery and either (i)
was purchased, leased or transferred in this state within either the first
eighteen thousand miles of operation or two years from the date of
original delivery, whichever is earlier, or (ii) is registered in this
state;
* NB Effective September 1, 2004
(3) "Manufacturer's
express warranty" or "warranty" means
the written warranty, so labeled, of the manufacturer of a new motor
vehicle, including any terms or conditions precedent to the enforcement of
obligations under that warranty.
(4) "Mileage deduction
formula" means the mileage which is in excess of twelve thousand
miles times the purchase price, or the lease price if applicable, of the
vehicle divided by one hundred thousand miles.
(5) "Lessee"
means any consumer who leases a motor vehicle pursuant to a written lease
agreement which provides that the lessee is responsible for repairs to
such motor vehicle.
(6) "Lease price"
means the aggregate of:
(i) the lessor's actual purchase cost;
(ii) the freight cost, if applicable;
(iii) the cost for accessories, if
applicable;
(iv) any fee paid to another to obtain the
lease; and
(v) an amount equal to five percent of the
lessor's actual purchase cost as prescribed in subparagraph (i) of this
paragraph.
(7) "Service fees"
-- means the portion of a lease payment attributable to:
(i) an amount for earned interest calculated
on the rental payments previously paid to the lessor for the leased
vehicle at an annual rate equal to two points above the prime rate in
effect on the date of the execution of the lease; and
(ii) any insurance or other costs expended by
the lessor for the benefit of the lessee.
(8) "Capitalized cost"
means the aggregate deposit and rental payments previously paid to the
lessor for the leased vehicle less service fees.
(b)
(1) If a new motor vehicle which is sold and
registered in this state does not conform to all express warranties during
the first eighteen thousand miles of operation or during the period of two
years following the date of original delivery of the motor vehicle to such
consumer, whichever is the earlier date, the consumer shall during such
period report the nonconformity, defect or condition to the manufacturer,
its agent or its authorized dealer. If the notification is received by the
manufacturer's agent or authorized dealer, the agent or dealer shall
within seven days forward written notice thereof to the manufacturer by
certified mail, return receipt requested, and shall include in such notice
a statement indicating whether or not such repairs have been undertaken.
The manufacturer, its agent or its authorized dealer shall correct said
nonconformity, defect or condition at no charge to the consumer,
notwithstanding the fact that such repairs are made after the expiration
of such period of operation or such two year period.
(2) If a manufacturer's agent or authorized
dealer refuses to undertake repairs within seven days of receipt of the
notice by a consumer of a nonconformity, defect or condition pursuant to
paragraph one of this subdivision, the consumer may immediately forward
written notice of such refusal to the manufacturer by certified mail,
return receipt requested. The manufacturer or its agent shall have twenty
days from receipt of such notice of refusal to commence such repairs. If
within such twenty day period, the manufacturer or its authorized agent
fails to commence such repairs, the manufacturer at the option of the
consumer, shall replace the motor vehicle with a comparable motor vehicle,
or accept return of the vehicle from the consumer and refund to the
consumer the full purchase price or, if applicable, the lease price and
any trade-in allowance plus fees and charges. Such fees and charges shall
include but not be limited to all license fees, registration fees and any
similar governmental charges, less an allowance for the consumer's use of
the vehicle in excess of the first twelve thousand miles of operation
pursuant to the mileage deduction formula defined in paragraph four of
subdivision (a) of this section, and a reasonable allowance for any damage
not attributable to normal wear or improvements.
(c)
(1) If, within the period specified in
subdivision (b) of this section, the manufacturer or its agents or
authorized dealers are unable to repair or correct any defect or condition
which substantially impairs the value of the motor vehicle to the consumer
after a reasonable number of attempts, the manufacturer, at the option of
the consumer, shall replace the motor vehicle with a comparable motor
vehicle, or accept return of the vehicle from the consumer and refund to
the consumer the full purchase price or, if applicable, the lease price
and any trade-in allowance plus fees and charges. Any return of a motor
vehicle may, at the option of the consumer, be made to the dealer or other
authorized agent of the manufacturer who sold such vehicle to the consumer
or to the dealer or other authorized agent who attempted to repair or
correct the defect or condition which necessitated the return and shall
not be subject to any further shipping charges. Such fees and charges
shall include but not be limited to all license fees, registration fees
and any similar governmental charges, less an allowance for the consumer's
use of the vehicle in excess of the first twelve thousand miles of
operation pursuant to the mileage deduction formula defined in paragraph
four of subdivision (a) of this section, and a reasonable allowance for
any damage not attributable to normal wear or improvements.
(2) A manufacturer which accepts return of
the motor vehicle because the motor vehicle does not conform to its
warranty shall notify the commissioner of the department of motor vehicles
that the motor vehicle was returned to the manufacturer for nonconformity
to its warranty and shall disclose, in accordance with the provisions of
section four hundred seventeen-a of the vehicle and traffic law prior to
resale either at wholesale or retail, that it was previously returned to
the manufacturer for nonconformity to its warranty. Refunds shall be made
to the consumer and lienholder, if any, as their interests may appear on
the records of ownership kept by the department of motor vehicles. Refunds
shall be accompanied by the proper application for credit or refund of
state and local sales taxes as published by the department of taxation and
finance and by a notice that the sales tax paid on the purchase price,
lease price or portion thereof being refunded is refundable by the
commissioner of taxation and finance in accordance with the provisions of
subdivision (f) of section eleven hundred thirty-nine of the tax law. If
applicable, refunds shall be made to the lessor and lessee as their
interests may appear on the records of ownership kept by the department of
motor vehicles, as follows: the lessee shall receive the capitalized cost
and the lessor shall receive the lease price less the aggregate deposit
and rental payments previously paid to the lessor for the leased vehicle.
The terms of the lease shall be deemed terminated contemporaneously with
the date of the arbitrator's decision and award and no penalty for early
termination shall be assessed as a result thereof. Refunds shall be
accompanied by the proper application form for credit or refund of state
and local sales tax as published by the department of taxation and finance
and a notice that the sales tax paid on the lease price or portion thereof
being refunded is refundable by the Commissioner of Taxation and Finance
in accordance with the provisions of subdivision (f)
of section eleven hundred thirty-nine of the tax law.
(3) It shall be an affirmative defense to any
claim under this section that:
(i) the nonconformity, defect or condition
does not substantially impair such value; or
(ii) the nonconformity, defect or condition
is the result of abuse, neglect or unauthorized modifications or
alterations of the motor vehicle.
(d) It shall be presumed that a reasonable
number of attempts have been undertaken to conform a motor vehicle to the
applicable express warranties, if:
(1) the same nonconformity, defect or
condition has been subject to repair four or more times by the
manufacturer or its agents or authorized dealers within the first eighteen
thousand miles of operation or during the period of two years following
the date of original delivery of the motor vehicle to a consumer,
whichever is the earlier date, but such nonconformity, defect or condition
continues to exist: or
(2) the vehicle is out of service by reason
of repair of one or more nonconformities, defects or conditions for a
cumulative total of thirty or more calendar days during either period,
whichever is the earlier date.
(e) The term of an express warranty, the two
year warranty period and the thirty day out of service period shall be
extended by any time during which repair services are not available to the
consumer because of a war, invasion or strike, fire, flood or other
natural disaster.
(f) Nothing in this section shall in any way
limit the rights or remedies which are otherwise available to a consumer
under any other law.
(g) If a manufacturer has established an
informal dispute settlement mechanism, such mechanism shall comply in all
respects with the provisions of this section and the provisions of
subdivision (c) of this section concerning refunds or replacement shall
not apply to any consumer who has not first resorted to such mechanism. In
the event that an arbitrator in such an informal dispute mechanism awards
a refund or replacement vehicle, he or she shall not reduce the award to
an amount less than the full purchase price or the lease price, if
applicable, or a vehicle of equal value, plus all fees and charges except
to the extent such reductions are specifically permitted under subdivision
(c) of this section.
(h) A manufacturer shall have up to thirty
days from the date the consumer notifies the manufacturer of his or her
acceptance of the arbitrator's decision to comply with the terms of that
decision. Failure to comply with the thirty day limitation shall also
entitle the consumer to recover a fee of twenty-five dollars for each
business day of noncompliance up to five hundred dollars. Provided,
however, that nothing contained in this subdivision shall impose any
liability on a manufacturer where a delay beyond the thirty day period is
attributable to a consumer who has requested a replacement vehicle built
to order or with options that are not comparable to the vehicle being
replaced or otherwise made compliance impossible within said period. In no
event shall a consumer who has resorted to an informal dispute settlement
mechanism be precluded from seeking the rights or remedies available by
law.
(i) Any agreement entered into by a consumer
for the purchase of a new motor vehicle which waives, limits or disclaims
the rights set forth in this section shall be void as contrary to public
policy. Said rights shall inure to a subsequent transferee of such motor
vehicle.
(j) Any action brought pursuant to this
section shall be commenced within four years of the date of original
delivery of the motor vehicle to the consumer.
(k) Each consumer shall have the option of
submitting any dispute arising under this section upon the payment of a
prescribed filing fee to an alternate arbitration mechanism established
pursuant to regulations promulgated hereunder by the New York state
attorney general. Upon application of the consumer and payment of the
filing fee, all manufacturers shall submit to such alternate arbitration.
Such alternate arbitration shall be conducted by a professional arbitrator
or arbitration firm appointed by and under regulations established by the
New York state attorney general. Such mechanism shall insure the personal
objectivity of its arbitrators and the right of each party to present its
case, to be in attendance during any presentation made by the other party
and to rebut or refute such presentation. In all other respects, such
alternate arbitration mechanism shall be governed by article seventy-five
of the civil practice law and rules.
(l) A court may award reasonable attorney's
fees to a prevailing plaintiff or to a consumer who prevails in any
judicial action or proceeding arising out of an arbitration proceeding
held pursuant to subdivision (k) of this section. In the event a
prevailing plaintiff is required to retain the services of an attorney to
enforce the collection of an award granted pursuant to this section, the
court may assess against the manufacturer reasonable attorney's fees for
services rendered to enforce collection of said award.
(m)
(1) Each manufacturer shall require that each
informal dispute settlement mechanism used by it provide, at a minimum,
the following:
(i) that the arbitrators participating in
such mechanism are trained in arbitration and familiar with the provisions
of this section, that the arbitrators and consumers who request
arbitration are provided with a written copy of the provisions of this
section, together with the notice set forth below entitled "NEW CAR LEMON
LAW BILL OF RIGHTS", and that consumers, upon request, are given an
opportunity to make an oral presentation to the arbitrator;
(ii) that the rights and procedures used in
the mechanism comply with federal regulations promulgated by the federal
trade commission relating to informal dispute settlement mechanisms; and
(iii) that the remedies set forth under
subdivision (c) of this section are awarded if, after a reasonable number
of attempts have been undertaken under subdivision (d) of this section to
conform the vehicle to the express warranties, the defect or nonconformity
still exists.
(2) The following notice shall be provided to
consumers and arbitrators and shall be printed in conspicuous ten point
bold face type:
NEW CAR LEMON LAW BILL OF RIGHTS
(1) IN ADDITION TO ANY WARRANTlES OFFERED BY
THE MANUFACTURER, YOUR NEW CAR, IF PURCHASED AND REGISTERED IN NEW YORK
STATE, IS WARRANTED AGAINST ALL MATERIAL DEFECTS FOR EIGHTEEN THOUSAND
MILES OR TWO YEARS, WHICHEVER COMES FIRST.
(2) YOU MUST REPORT ANY PROBLEMS TO THE
MANUFACTURER, ITS AGENT, OR AUTHORIZED DEALER.
(3) UPON NOTIFICATION, THE PROBLEM MUST BE
CORRECTED FREE OF CHARGE.
(4) IF THE SAME PROBLEM CANNOT BE REPAIRED
AFTER FOUR OR MORE ATTEMPTS; OR IF YOUR CAR IS OUT OF SERVICE TO REPAIR A
PROBLEM FOR A TOTAL OF THIRTY DAYS DURING THE WARRANTY PERIOD; OR IF THE
MANUFACTURER OR ITS AGENT REFUSES TO REPAIR A SUBSTANTIAL DEFECT OR
CONDITION WITHIN TWENTY DAYS OF RECEIPT OF NOTICE SENT BY YOU TO THE
MANUFACTURER BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED; THEN YOU MAY BE
ENTITLED TO EITHER A COMPARABLE CAR OR A REFUND OF YOUR PURCHASE PRICE,
PLUS LICENSE AND REGISTRATION FEES, MINUS A MILEAGE ALLOWANCE ONLY IF THE
VEHICLE HAS BEEN DRIVEN MORE THAN 12,000 MILES. SPECIAL NOTIFICATION
REQUIREMENTS MAY APPLY TO MOTOR HOMES.
(5) A MANUFACTURER MAY DENY LlABILITY IF THE
PROBLEM IS CAUSED BY ABUSE, NEGLECT, OR UNAUTHORIZED MODIFICATIONS OF THE
CAR.
(6) A MANUFACTURER MAY REFUSE TO EXCHANGE A
COMPARABLE CAR OR REFUND YOUR PURCHASE PRICE IF THE PROBLEM DOES NOT
SUBSTANTlALLY IMPAIR THE VALUE OF YOUR CAR.
(7) IF A MANUFACTURER HAS ESTABLISHED AN
ARBITRA- TION PROCEDURE, THE MANUFACTURER MAY REFUSE TO EXCHANGE A
COMPARABLE CAR OR REFUND YOUR PURCHASE PRICE UNTIL YOU FIRST RESORT TO THE
PROCEDURE.
(8) IF THE MANUFACTURER DOES NOT HAVE AN
ARBITRATION PROCEDURE, YOU MAY RESORT TO ANY REMEDY BY LAW AND MAY BE
ENTITLED TO YOUR ATTORNEYS FEES IF YOU PREVAIL.
(9) NO CONTRACT OR AGREEMENT CAN VOID ANY OF
THESE RIGHTS.
(10) AS AN ALTERNATIVE TO THE ARBITRATION
PROCEDURE MADE AVAILABLE THROUGH THE MANUFACTURER, YOU MAY INSTEAD CHOOSE
TO SUBMIT YOUR CLAIM TO AN INDEPENDENT ARBITRATOR, APPROVED BY THE
ATTORNEY GENERAL. YOU MAY HAVE TO PAY A FEE FOR SUCH AN ARBITRATION.
CONTACT YOUR LOCAL CONSUMER OFFICE OR ATTORNEY GENERAL'S OFFICE TO FIND
OUT HOW TO ARRANGE FOR INDEPENDENT ARBITRATION.
(3) All informal dispute settlement
mechanisms shall maintain the following records:
(i) the number of purchase price and lease
price refunds and vehicle replacements requested, the number of each
awarded in arbitration, the amount of each award and the number of awards
that were complied with in a timely manner;
(ii) the number of awards where additional
repairs or a warranty extension was the most prominent remedy, the amount
or value of each award, and the number of such awards that were complied
with in a timely manner;
(iii) the number and total dollar amount of
awards where some form of reimbursement for expenses or compensation for
losses was the most prominent remedy, the amount or value of each award
and the number of such awards that were complied with in a timely manner;
and
(iv) the average number of days from the date
of a consumer's initial request to arbitrate until the date of the final
arbitrator's decision and the average number of days from the date of the
final arbitrator's decision to the date on which performance was
satisfactorily carried out.
(n) Special provisions applicable to motor
homes:
(1) To the extent that the provisions of this
subdivision are inconsistent with the other provisions of this section,
the provisions of this subdivision shall apply.
(2) For purposes of this section, the
manufacturer of a motor home is any person, partnership, corporation,
factory branch, or other entity engaged in the business of manufacturing
or assembling new motor homes for sale in this state.
(3) This section does not apply to
nonconformities, defects or conditions in motor home systems, fixtures,
components, appliances, furnishings or accessories that are residential in
character.
(4) If, within the period specified in
subdivision (b) of this section, the manufacturer of a motor home or its
agents or its authorized dealers or repair shops to which they refer a
customer are unable to repair or correct any defect or condition which
substantially impairs the value of the motor home to the consumer after a
reasonable number of attempts, the motor home manufacturer, at the option
of the consumer, shall replace the motor home with a comparable motor
home, or accept return of the motor home from the consumer and refund to
the consumer the full purchase price or, if applicable, the lease price
and any trade-in allowance plus fees and charges as well as the other fees
and charges set forth in paragraph one of subdivision (c) of this section.
(5) If an agent or authorized dealer of a
motor home manufacturer or a repair shop to which they refer a consumer
refuses to undertake repairs within seven days of receipt of notice by a
consumer of a nonconformity, defect or condition pursuant to paragraph one
of subdivision (b) of this section, the consumer may immediately forward
written notice of such refusal to the motor home manufacturer by certified
mail, return receipt requested. The motor home manufacturer or its
authorized agent or a repair shop to which they refer a consumer shall
have twenty days from receipt of such notice of refusal to commence such
repairs. If within such twenty-day period, the motor home manufacturer or
its authorized agent or repair shop to which they refer a consumer, fails
to commence such repairs, the motor home manufacturer, at the option of
the consumer, shall replace the motor home with a comparable motor home,
or accept return of the motor home from the consumer and refund to the
consumer the full purchase price or, if applicable, the lease price, and
any trade-in allowance or other charges or allowances as set forth in
paragraph two of subdivision (b) of this section.
(6) If within the period specified in
subdivision (b) of this section, the same nonconformity, defect or
condition in a motor home has been subject to repair three times or a
motor home has been out of service by reason of repair for twenty-one
days, whichever occurs first, the consumer must have reported this to the
motor home manufacturer or its authorized dealer by certified mail, return
receipt requested, prior to instituting any proceeding or other action
pursuant to this section provided, however, that the special notification
requirements of this paragraph shall only apply if the manufacturer or its
authorized dealer provides a prior written copy of the requirements of
this paragraph to the consumer and receipt of the notice is acknowledged
by the consumer in writing. If the consumer who has received notice from
the manufacturer fails to comply with the special notification
requirements of this paragraph, additional repair attempts or days out of
service by reason of repair shall not be taken into account in determining
whether the consumer is entitled to a remedy provided in paragraph four of
this subdivision. However, additional repair attempts or days out of
service by reason of repair that occur after the consumer complies with
such special notification requirements shall be taken into account in
making that determination.
(7) Nothing in this section shall in any way
limit any rights, remedies or causes of action that a consumer or motor
home manufacturer may otherwise have against the manufacturer of the motor
home's chassis, or its propulsion and other components.
(o) At the time of purchase or lease of a
motor vehicle from an authorized dealer in this state, the manufacturer
shall provide to the dealer or leaseholder, and the dealer or leaseholder
shall provide to the consumer a notice, printed in not less than eight
point bold face type, entitled "New Car Lemon Law Bill of Rights". The
text of such notice shall be identical with the notice required by
paragraph two of subdivision (m) of this section.
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