Lemon Law - New York
Lemon Law
Lemon Law - "Lemon
law" is that body of state law which defines an automobile
owners rights when the manufacturer is not able to repair the
automobile within the limits specified. In
such cases, the automobile is referred to as a "lemon",
and is subject to the conditions of the state lemon law.
Your Lemon Law:
Disclaimer:
These pages are created to inform and educate the public about lemon
law and under the lemon law in your state. They are not and
should not be considered legal opinions or advice as to whether you
have rights under lemon law or whether you should pursue "a
lemon law case". If after reading this information,
you believe you qualify, you should seek the advice and counsel of
an attorney specializing in lemon law in your state. Remember
that each state's lemon laws vary.
198-a Warranties.
(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;
(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 authorized 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 lien holder, 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. Any provision of
any agreement entered into by a consumer for the purchase of a new
motor vehicle which includes as an additional cost for such motor
vehicle an expense identified as being for the purpose of affording
such consumer his or her rights under this section, shall be void as
contrary to public policy.
(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 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 WARRANTIES
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
LIABILITY 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 SUBSTANTIALLY IMPAIR THE VALUE OF YOUR CAR.
(7) IF A MANUFACTURER HAS
ESTABLISHED AN ARBITRATION 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 ATTORNEY'S 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 consumer 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.
198-b Sale or lease of used
motor vehicles.
a. Definitions.
As used in this section, the
following words shall have the following meanings:
1. "Consumer"
means the purchaser, or lessee, other than for purposes of resale,
of a used motor vehicle primarily used for personal, family, or
household purposes and subject to a warranty, and the spouse or
child of the purchaser or the lessee if either such motor vehicle or
the lease of such motor vehicle is transferred to the spouse or
child during the duration of any warranty applicable to such motor
vehicle, and any other person entitled by the terms of such warranty
to enforce the obligations of the warranty;
2. "Used motor
vehicle" means a motor vehicle, excluding motorcycles, motor
homes and off-road vehicles, which has been purchased, leased, or
transferred either after eighteen thousand miles of operation or two
years from the date of original delivery, whichever is earlier;
3. "Dealer" means
any person or business which sells, offers for sale, leases or
offers for lease a used vehicle after selling, offering for sale,
leasing or offering for lease three or more used vehicles in the
previous twelve month period, but does not include:
(a) a bank or financial
institution except in the case of a lease of a used motor vehicle,
(b) a business selling a
used vehicle to an employee of that business,
(c) a regulated public
utility which sells at public auction vehicles used in the ordinary
course of its operations, provided that any advertisements of such
sales conspicuously disclose the "as is" nature of the
sale,
(d) the sale of a leased
vehicle to that vehicle's lessee, a family member of the lessee, or
an employee of the lessee, or
(e) the state, its agencies,
bureaus, boards, commissions and authorities, and all of the
political subdivisions of the state, including the agencies and
authorities of such subdivisions;
4. "Service
contract" means a contract in writing for any period of time or
any specific mileage to refund, repair, replace, maintain or take
other action with respect to a used motor vehicle and provided at an
extra charge beyond the price of the used motor vehicle or of the
lease contract for the used motor vehicle;
5. (sic - missing)
6. "Repair
insurance" means a contract in writing for any period of time
or any specific mileage to refund, repair, replace, maintain or take
other action with respect to a used motor vehicle and which is
regulated by the insurance department.
b. Written warranty
required; terms.
1. No dealer shall sell or
lease a used motor vehicle to a consumer without giving the consumer
a written warranty which shall at minimum apply for the following
terms:
(a) If the used motor
vehicle has thirty-six thousand miles or less, the warranty shall be
at minimum ninety days or four thousand miles, whichever comes
first.
(b) If the used motor
vehicle has more than thirty-six thousand miles, but less than
eighty thousand miles, the warranty shall be at minimum sixty days
or three thousand miles, whichever comes first.
(c) If the used motor
vehicle has eighty thousand miles or more but no more than one
hundred thousand miles, the warranty shall be at a minimum thirty
days or one thousand miles, whichever comes first.
2. The written warranty
shall require the dealer or his agent to repair or, at the election
of the dealer, reimburse the consumer for the reasonable cost of
repairing the failure of a covered part. Covered parts shall at
least include the following items:
(a) Engine. All lubricated
parts, water pump, fuel pump, manifolds, engine block, cylinder
head, rotary engine housings and flywheel.
(b) Transmission. The
transmission case, internal parts, and the torque converter.
(c) Drive axle. Front and
rear drive axle housings and internal parts, axle shafts, propeller
shafts and universal joints.
(d) Brakes. Master cylinder,
vacuum assist booster, wheel cylinders, hydraulic lines and fittings
and disc brake calipers.
(e) Radiator.
(f) Steering. The steering
gear housing and all internal parts, power steering pump, valve
body, piston and rack.
(g) Alternator, generator,
starter, ignition system excluding the battery.
3. Such repair or
reimbursement shall be made by the dealer notwithstanding the fact
that the warranty period has expired, provided the consumer notifies
the dealer of the failure of a covered part within the specified
warranty period.
4. If the warranty provided
for in section one hundred ninety-eight-a of this chapter is in
effect at the time of the sale or lease of the used motor vehicle,
then the warranty specified in this section shall be required only
for the period of time, if any, between the expiration of such
section one hundred ninety-eight-a warranty and the period specified
in paragraph one of this subdivision.
5. The written warranty may
contain additional language excluding coverage:
(a) for a failure of a
covered part caused by a lack of customary maintenance;
(b) for a failure of a
covered part caused by collision, abuse, negligence, theft,
vandalism, fire or other casualty and damage from the environment
(windstorm, lightning, road hazards, etc.);
(c) if the odometer has been
stopped or altered such that the vehicle's actual mileage cannot be
readily determined or if any covered part has been altered such that
a covered part was thereby caused to fail;
(d) for maintenance services
and the parts used in connection with such services such as seals,
gaskets, oil or grease unless required in connection with the repair
of a covered part;
(e) for a motor tune-up;
(f) for a failure resulting
from racing or other competition;
(g) for a failure caused by
towing a trailer or another vehicle unless the used motor vehicle is
equipped for this as recommended by the manufacturer;
(h) if the used motor
vehicle is used to carry passengers for hire;
(i) if the used motor
vehicle is rented to someone other than the consumer as defined in
paragraph one of subdivision a of this section;
(j) for repair of valves
and/or rings to correct low compression and/or oil consumption which
are considered normal wear;
(k) to the extent otherwise
permitted by law, for property damage arising or allegedly arising
out of the failure of a covered part; and
(l) to the extent otherwise
permitted by law, for loss of the use of the used motor vehicle,
loss of time, inconvenience, commercial loss or consequential
damages.
c. Failure to honor
warranty.
1. If the dealer or his
agent fails to correct a malfunction or defect as required by the
warranty specified in this section which substantially impairs the
value of the used motor vehicle to the consumer after a reasonable
period of time, the dealer shall accept return of the used motor
vehicle from the consumer and refund to the consumer the full
purchase price, or in the case of a lease contract all payments made
under the contract, including sales or compensating use tax, less a
reasonable allowance for any damage not attributable to normal wear
or usage, and adjustment for any modifications which either increase
or decrease the market value of the vehicle or of the lease
contract, and in the case of a lease contract, shall cancel all
further payments due from the consumer under the lease contract. In
determining the purchase price to be refunded or in determining all
payments made under a lease contract to be refunded, the purchase
price, or all payments made under a lease contract, shall be deemed
equal to the sum of the actual cash difference paid for the used
motor vehicle, or for the lease contract, plus, if the dealer elects
to not return any vehicles traded-in by the consumer, the wholesale
value of any such traded-in vehicles as listed in the National Auto
Dealers Association Used Car Guide, or such other guide as may be
specified in regulations promulgated by the commissioner of motor
vehicles, as adjusted for mileage, improvements, and any major
physical or mechanical defects in the traded-in vehicle at the time
of trade-in. The dealer selling or leasing the used motor vehicle
shall deliver to the consumer a written notice including conspicuous
language indicating that if the consumer should be entitled to a
refund pursuant to this section, the value of any vehicle traded-in
by the consumer, if the dealer elects to not return it to the
consumer, for purposes of determining the amount of such refund will
be determined by reference to the National Auto Dealers Association
Used Car Guide wholesale value, or such other guide as may be
approved by the commissioner of motor vehicles, as adjusted for
mileage, improvements, and any major physical or mechanical defects,
rather than the value listed in the sales contract. Refunds shall be
made to the consumer and lien holder, if any, as their interests may
appear on the records of ownership kept by the department of motor
vehicles. If the amount to be refunded to the lien holder will be
insufficient to discharge the lien, the dealer shall notify the
consumer in writing by registered or certified mail that the
consumer has thirty days to pay the lien holder the amount which,
together with the amount to be refunded by the dealer, will be
sufficient to discharge the lien. The notice to the consumer shall
contain conspicuous language warning the consumer that failure to
pay such funds to the lien holder within thirty days will terminate
the dealer's obligation to provide a refund. If the consumer fails
to make such payment within thirty days, the dealer shall have no
further responsibility to provide a refund under this section.
Alternatively, the dealer may elect to offer to replace the used
motor vehicle with a comparably priced vehicle, with such adjustment
in price as the parties may agree to. The consumer shall not be
obligated to accept a replacement vehicle, but may instead elect to
receive the refund provided under this section. It shall be an
affirmative defense to any claim under this section that:
(a) The malfunction or
defect does not substantially impair such value; or
(b) The malfunction or
defect is the result of abuse, neglect or unreasonable modifications
or alterations of the used motor vehicle.
2. It shall be presumed that
a dealer has had a reasonable opportunity to correct a malfunction
or defect in a used motor vehicle, if:
(a) The same malfunction or
defect has been subject to repair three or more times by the selling
or leasing dealer or his agent within the warranty period, but such
malfunction or defect continues to exist; or
(b) The vehicle is out of
service by reason of repair or malfunction or defect for a
cumulative total of fifteen or more days during the warranty period.
Said period shall not include days when the dealer is unable to
complete the repair because of the unavailability of necessary
repair parts. The dealer shall be required to exercise due diligence
in attempting to obtain necessary repair parts. Provided, however,
that if a vehicle has been out of service for a cumulative total of
forty-five days, even if a portion of that time is attributable to
the unavailability of replacement parts, the consumer shall be
entitled to the replacement or refund remedies provided in this
section.
3. The term of any warranty,
service contract or repair insurance shall be extended by any time
period during which the used motor vehicle is in the possession of
the dealer or his duly authorized agent for the purpose of repairing
the used motor vehicle under the terms and obligations of said
warranty, service contract or repair insurance.
4. The term of any warranty,
service contract or repair insurance, and the fifteen 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.
d. Waiver void.
1. Any agreement entered
into by a consumer for the purchase or lease of a used motor vehicle
which waives, limits or disclaims the rights set forth in this
article shall be void as contrary to public policy. Further, if a
dealer fails to give the written warranty required by this article,
the dealer nevertheless shall be deemed to have given said warranty
as a matter of law.
2. Nothing in this section
shall in any way limit the rights or remedies which are otherwise
available to a consumer under any other law.
3. Notwithstanding paragraph
one of this subdivision, this article shall not apply to used motor
vehicles sold for, or in the case of a lease where the value of the
used motor vehicle as agreed to by the consumer and the dealer which
vehicle is the subject of the contract is, less than one thousand
five hundred dollars, or to used motor vehicles with over one
hundred thousand miles at the time of sale or lease if said mileage
is indicated in writing at the time of sale or lease. Further, this
article shall not apply to the sale or lease of historical motor
vehicles as defined in section four hundred one of the vehicle and
traffic law.
e. Time of delivery,
location of warranty and notice.
The written warranty provided for
in subdivision b of this section and the written notice provided for
in subdivision c of this section shall be delivered to the consumer
at or before the time the consumer signs the sales or lease contract
for the used motor vehicle. The warranty and the notice may be set
forth on one sheet or on separate sheets. They may be separate from,
attached to, or a part of the sales or lease contract. If they are
part of the sales or lease contract, they shall be separated from
the other contract provisions and each headed by a conspicuous
title.
f. Arbitration and
enforcement.
1. If a dealer has
established or participates in an informal dispute settlement
procedure which complies in all respects with the provisions of part
seven hundred three of title sixteen of the code of federal
regulations the provisions of this article concerning refunds or
replacement shall not apply to any consumer who has not first
resorted to such procedure. Dealers utilizing informal dispute
settlement procedures pursuant to this subdivision shall insure that
arbitrators participating in such informal dispute settlement
procedures are familiar with the provisions of this section and
shall provide to arbitrators and consumers who seek arbitration a
copy of the provisions of this section together with the following
notice in conspicuous ten point bold face type:
USED CAR LEMON LAW BILL OF RIGHTS
1. If you purchase a used car for
more than one thousand five hundred dollars, or lease a used car
where you and the dealer have agreed that the car's value is more
than one thousand five hundred dollars, from anyone selling or
leasing three or more used cars a year, you must be given a written
warranty.
2. If your used car has 18,000
miles or less, you may be protected by the new car lemon law.
3.
(a) If your used car has more than
18,000 miles and up to and including 36,000 miles, a warranty must
be provided for at least 90 days or 4,000 miles, whichever comes
first.
(b) If your used car has more than
36,000 miles but less than 80,000 miles, a warranty must be provided
for at least 60 days or 3,000 miles, whichever comes first.
(c) If your used car has 80,000
miles or more but no more than 100,000 miles, a warranty must be
provided for at least 30 days or 1,000 miles, whichever comes first.
Cars with over 100,000 miles are not covered.
4. If your engine, transmission,
drive axle, brakes, radiator, steering, alternator, generator,
starter, or ignition system (excluding the battery) are defective,
the dealer or his agent must repair or, if he so chooses, reimburse
you for the reasonable cost of repair.
5. If the same problem cannot be
repaired after three or more attempts, you are entitled to return
the car and receive a refund of your purchase price or of all
payments made under your lease contract, and of sales tax and fees,
minus a reasonable allowance for any damage not attributable to
normal usage or wear, and, in the case of a lease contract, a
cancellation of all further payments you are otherwise required to
make under the lease contract.
6. If your car is out of service to
repair a problem for a total of fifteen days or more during the
warranty period you are entitled to return the car and receive a
refund of your purchase price or of all payments made under your
lease contract, and of sales tax and fees, minus a reasonable
allowance for any damage not attributable to normal usage or wear,
and, in the case of a lease contract, a cancellation of all further
payments you are otherwise required to make under the lease
contract.
7. A dealer may put into the
written warranty certain provisions which will prohibit your
recovery under certain conditions; however, the dealer may not cause
you to waive any rights under this law.
8. A dealer may refuse to refund
your purchase price, or the payments made under your lease contract,
if the problem does not substantially impair the value of your car,
or if the problem is caused by abuse, neglect, or unreasonable
modification.
9. If a dealer has established an
arbitration procedure, the dealer may refuse to refund your purchase
price until you first resort to the procedure. If the dealer does
not have an arbitration procedure, you may resort to any remedy
provided by law and may be entitled to your attorney's fees if you
prevail.
10. As an alternative to the
arbitration procedure made available through the dealer 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.
11. If any dealer refuses to honor
your rights or you are not satisfied by the informal dispute
settlement procedure, complain to the New York State Attorney
General, Executive Office, Capitol, Albany, N.Y. 12224.
2. A dealer shall have up to
thirty days from the date of notice by the consumer that the
arbitrator's decision has been accepted to comply with the terms of
such decision. Provided, however, that nothing contained in this
subdivision shall impose any liability on a dealer where a delay
beyond the thirty day period is attributable to a consumer who has
requested a particular replacement vehicle or otherwise made
compliance impossible within said period.
3. Upon the payment of a
prescribed filing fee, a consumer shall have the option of
submitting any dispute arising under this section to an alternate
arbitration mechanism established pursuant to regulations
promulgated hereunder by the attorney general. Upon application of
the consumer and payment of the filing fee, the dealer 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 attorney general. Such
mechanism shall ensure 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.
The notice required by paragraph
one of this subdivision, entitled Used Car Lemon Law Bill of Rights,
shall be provided to arbitrators and consumers who seek arbitration
under this subdivision.
A dealer shall have thirty days
from the date of mailing of a copy of the arbitrator's decision to
such dealer to comply with the terms of such decision. Failure to
comply within the thirty day period shall entitle the consumer to
recover, in addition to any other recovery to which he may be
entitled, a fee of twenty-five dollars for each business day beyond
thirty days up to five hundred dollars; provided however, that
nothing in this subdivision shall impose any liability on a dealer
where a delay beyond the thirty day period is attributable to a
consumer who has requested a particular replacement vehicle or
otherwise made compliance impossible within said period.
The commissioner of motor vehicles
or any person deputized by him may deny the application of any
person for registration under section four hundred fifteen of the
vehicle and traffic law and suspend or revoke a registration under
such section or refuse to issue a renewal thereof if he or such
deputy determines that such applicant or registrant or any officer,
director, stockholder, or partner, or any other person directly or
indirectly interested in the business has deliberately failed to pay
an arbitration award, which has not been stayed or appealed,
rendered in an arbitration proceeding pursuant to this paragraph for
sixty days after the date of mailing of a copy of the award to the
registrant. Any action taken by the commissioner of motor vehicles
pursuant to this paragraph shall be governed by the procedures set
forth in subdivision nine of section four hundred fifteen of the
vehicle and traffic law.
4. In no event shall a
consumer who has resorted to an informal dispute settlement
procedure be precluded from seeking the rights or remedies available
by law.
5. In an action brought to
enforce the provisions of this article, the 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 paragraph three of
this subdivision. In the event a prevailing plaintiff is required to
retain the services of an attorney to enforce collection of an award
granted pursuant to this section, the court may assess against the
dealer reasonable attorney's fees for services rendered to enforce
collection of said award.
6. Any action brought
pursuant to this article shall be commenced within four years of the
date of original delivery of the used motor vehicle to the consumer.
g. Notice of consumer
rights.
At the time of purchase or lease of
a used motor vehicle from a dealer in this state, the dealer shall
provide to the consumer a notice, printed in not less than eight
point bold face type, entitled "Used Car Lemon Law Bill of
Rights". The text of such notice shall be identical with the
notice required by paragraph one of subdivision f of this section.
