Provides certain warranties and protections for purchasers of new and used motor vehicles; includes commercial and business purchasers under the Lemon Law.
STATE OF NEW YORK
________________________________________________________________________
2226
2023-2024 Regular Sessions
IN ASSEMBLY
January 25, 2023
___________
Introduced by M. of A. GUNTHER, STIRPE -- read once and referred to the
Committee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to warranties and
protections for purchasers of new and used motor vehicles
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraphs 1 and 5 of subdivision (a) of section 198-a of
2 the general business law, paragraph 1 as amended by chapter 530 of the
3 laws of 1990, paragraph 5 as added by chapter 799 of the laws of 1986,
4 are amended to read as follows:
5 (1) ["Consumer"] "Purchaser" means the purchaser, lessee or transfer-
6 ee, other than for purposes of resale, of a motor vehicle which is used
7 primarily for personal, family or household, or commercial or business
8 purposes and any other person entitled by the terms of the manufactur-
9 er's warranty to enforce the obligations of such warranty;
10 (5) "Lessee" means any [consumer] purchaser who leases a motor vehicle
11 pursuant to a written lease agreement which provides that the lessee is
12 responsible for repairs to such motor vehicle.
13 § 2. Subdivision (b) of section 198-a of the general business law, as
14 amended by chapter 279 of the laws of 1989, paragraph 1 as amended by
15 chapter 217 of the laws of 1990, is amended to read as follows:
16 (b) (1) If a new motor vehicle which is sold and registered in this
17 state does not conform to all express warranties during the first eigh-
18 teen thousand miles of operation or during the period of two years
19 following the date of original delivery of the motor vehicle to such
20 [consumer] purchaser, whichever is the earlier date, the [consumer]
21 purchaser shall during such period report the nonconformity, defect or
22 condition to the manufacturer, its agent or its authorized dealer. If
23 the notification is received by the manufacturer's agent or authorized
24 dealer, the agent or dealer shall within seven days forward written
25 notice thereof to the manufacturer by certified mail, return receipt
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD01851-01-3
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1 requested, and shall include in such notice a statement indicating
2 whether or not such repairs have been undertaken. The manufacturer, its
3 agent or its authorized dealer shall correct said nonconformity, defect
4 or condition at no charge to the [consumer] purchaser, notwithstanding
5 the fact that such repairs are made after the expiration of such period
6 of operation or such two year period.
7 (2) If a manufacturer's agent or authorized dealer refuses to under-
8 take repairs within seven days of receipt of the notice by a [consumer]
9 purchaser of a nonconformity, defect or condition pursuant to paragraph
10 one of this subdivision, the [consumer] purchaser may immediately
11 forward written notice of such refusal to the manufacturer by certified
12 mail, return receipt requested. The manufacturer or its authorized
13 agent shall have twenty days from receipt of such notice of refusal to
14 commence such repairs. If within such twenty day period, the manufactur-
15 er or its authorized agent fails to commence such repairs, the manufac-
16 turer, at the option of the [consumer] purchaser, shall replace the
17 motor vehicle with a comparable motor vehicle, or accept return of the
18 vehicle from the [consumer] purchaser and refund to the [consumer]
19 purchaser the full purchase price or, if applicable, the lease price and
20 any trade-in allowance plus fees and charges. Such fees and charges
21 shall include but not be limited to all license fees, registration fees
22 and any similar governmental charges, less an allowance for the [consum-
23 er's] purchaser's use of the vehicle in excess of the first twelve thou-
24 sand miles of operation pursuant to the mileage deduction formula
25 defined in paragraph four of subdivision (a) of this section, and a
26 reasonable allowance for any damage not attributable to normal wear or
27 improvements.
28 § 3. Paragraphs 1 and 2 of subdivision (c) of section 198-a of the
29 general business law, paragraph 1 as amended by chapter 234 of the laws
30 of 1990, paragraph 2 as amended by chapter 29 of the laws of 1989, are
31 amended to read as follows:
32 (1) If, within the period specified in subdivision (b) of this
33 section, the manufacturer or its agents or authorized dealers are unable
34 to repair or correct any defect or condition which substantially impairs
35 the value of the motor vehicle to the [consumer] purchaser after a
36 reasonable number of attempts, the manufacturer, at the option of the
37 [consumer] purchaser, shall replace the motor vehicle with a comparable
38 motor vehicle, or accept return of the vehicle from the [consumer]
39 purchaser and refund to the [consumer] purchaser the full purchase price
40 or, if applicable, the lease price and any trade-in allowance plus fees
41 and charges. Any return of a motor vehicle may, at the option of the
42 [consumer] purchaser, be made to the dealer or other authorized agent of
43 the manufacturer who sold such vehicle to the [consumer] purchaser or to
44 the dealer or other authorized agent who attempted to repair or correct
45 the defect or condition which necessitated the return and shall not be
46 subject to any further shipping charges. Such fees and charges shall
47 include but not be limited to all license fees, registration fees and
48 any similar governmental charges, less an allowance for the [consumer's]
49 purchaser's use of the vehicle in excess of the first twelve thousand
50 miles of operation pursuant to the mileage deduction formula defined in
51 paragraph four of subdivision (a) of this section, and a reasonable
52 allowance for any damage not attributable to normal wear or improve-
53 ments.
54 (2) A manufacturer which accepts return of the motor vehicle because
55 the motor vehicle does not conform to its warranty shall notify the
56 commissioner of the department of motor vehicles that the motor vehicle
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1 was returned to the manufacturer for nonconformity to its warranty and
2 shall disclose, in accordance with the provisions of section four
3 hundred seventeen-a of the vehicle and traffic law prior to resale
4 either at wholesale or retail, that it was previously returned to the
5 manufacturer for nonconformity to its warranty. Refunds shall be made to
6 the [consumer] purchaser and lienholder, if any, as their interests may
7 appear on the records of ownership kept by the department of motor vehi-
8 cles. Refunds shall be accompanied by the proper application for credit
9 or refund of state and local sales taxes as published by the department
10 of taxation and finance and by a notice that the sales tax paid on the
11 purchase price, lease price or portion thereof being refunded is refund-
12 able by the commissioner of taxation and finance in accordance with the
13 provisions of subdivision (f) of section eleven hundred thirty-nine of
14 the tax law. If applicable, refunds shall be made to the lessor and
15 lessee as their interests may appear on the records of ownership kept by
16 the department of motor vehicles, as follows: the lessee shall receive
17 the capitalized cost and the lessor shall receive the lease price less
18 the aggregate deposit and rental payments previously paid to the lessor
19 for the leased vehicle. The terms of the lease shall be deemed termi-
20 nated contemporaneously with the date of the arbitrator's decision and
21 award and no penalty for early termination shall be assessed as a result
22 thereof. Refunds shall be accompanied by the proper application form for
23 credit or refund of state and local sales tax as published by the
24 department of taxation and finance and a notice that the sales tax paid
25 on the lease price or portion thereof being refunded is refundable by
26 the commissioner of taxation and finance in accordance with the
27 provisions of subdivision (f) of section eleven hundred thirty-nine of
28 the tax law.
29 § 4. Subdivision (h) of section 198-a of the general business law, as
30 amended by chapter 799 of the laws of 1986, is amended to read as
31 follows:
32 (h) A manufacturer shall have up to thirty days from the date the
33 [consumer] purchaser notifies the manufacturer of his or her acceptance
34 of the arbitrator's decision to comply with the terms of that decision.
35 Failure to comply with the thirty day limitation shall also entitle the
36 [consumer] purchaser to recover a fee of twenty-five dollars for each
37 business day of noncompliance up to five hundred dollars. Provided,
38 however, that nothing contained in this subdivision shall impose any
39 liability on a manufacturer where a delay beyond the thirty day period
40 is attributable to a [consumer] purchaser who has requested a replace-
41 ment vehicle built to order or with options that are not comparable to
42 the vehicle being replaced or otherwise made compliance impossible with-
43 in said period. In no event shall a [consumer] purchaser who has
44 resorted to an informal dispute settlement mechanism be precluded from
45 seeking the rights or remedies available by law.
46 § 5. Subdivision (i) of section 198-a of the general business law, as
47 amended by chapter 415 of the laws of 1987, is amended to read as
48 follows:
49 (i) Any agreement entered into by a [consumer] purchaser for the
50 purchase of a new motor vehicle which waives, limits or disclaims the
51 rights set forth in this section shall be void as contrary to public
52 policy. Said rights shall inure to a subsequent transferee of such motor
53 vehicle.
54 Any provision of any agreement entered into by a [consumer] purchaser
55 for the purchase of a new motor vehicle which includes as an additional
56 cost for such motor vehicle an expense identified as being for the
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1 purpose of affording such [consumer] purchaser his or her rights under
2 this section, shall be void as contrary to public policy.
3 § 6. Subdivision (j) of section 198-a of the general business law, as
4 added by chapter 444 of the laws of 1983, is amended to read as follows:
5 (j) Any action brought pursuant to this section shall be commenced
6 within four years of the date of original delivery of the motor vehicle
7 to the [consumer] purchaser.
8 § 7. Subdivision (k) of section 198-a of the general business law, as
9 amended by chapter 611 of the laws of 2005, is amended to read as
10 follows:
11 (k) Each [consumer] purchaser shall have the option of submitting any
12 dispute arising under this section upon the payment of a prescribed
13 filing fee to an alternate arbitration mechanism established pursuant to
14 regulations promulgated hereunder by the New York state attorney gener-
15 al. Upon application of the [consumer] purchaser and payment of the
16 filing fee, all manufacturers shall submit to such alternate arbi-
17 tration.
18 Such alternate arbitration shall be conducted by a professional arbi-
19 trator or arbitration firm appointed by and under regulations estab-
20 lished by the New York state attorney general. Such mechanism shall
21 [insure] ensure the personal objectivity of its arbitrators and the
22 right of each party to present its case, to be in attendance during any
23 presentation made by the other party and to rebut or refute such presen-
24 tation. In all other respects, such alternate arbitration mechanism
25 shall be governed by article seventy-five of the civil practice law and
26 rules; provided, however, that notwithstanding paragraph (i) of subdivi-
27 sion (a) of section seventy-five hundred two of the civil practice law
28 and rules, special proceedings brought before a court pursuant to such
29 article seventy-five in relation to an arbitration hereunder shall be
30 brought only in the county where the [consumer] purchaser resides or
31 where the arbitration was held or is pending.
32 § 8. Subdivision (l) of section 198-a of the general business law, as
33 amended by chapter 487 of the laws of 1990, is amended to read as
34 follows:
35 (l) A court may award reasonable attorney's fees to a prevailing
36 plaintiff or to a [consumer] purchaser who prevails in any judicial
37 action or proceeding arising out of an arbitration proceeding held
38 pursuant to subdivision (k) of this section. In the event a prevailing
39 plaintiff is required to retain the services of an attorney to enforce
40 collection of an award granted pursuant to this section, the court may
41 assess against the manufacturer reasonable attorney's fees for services
42 rendered to enforce collection of said award.
43 § 9. Subparagraph (i) of paragraph 1 of subdivision (m) of section
44 198-a of the general business law, as added by chapter 799 of the laws
45 of 1986, is amended to read as follows:
46 (i) that the arbitrators participating in such mechanism are trained
47 in arbitration and familiar with the provisions of this section, that
48 the arbitrators and [consumers] purchasers who request arbitration are
49 provided with a written copy of the provisions of this section, together
50 with the notice set forth below entitled "NEW CAR LEMON LAW BILL OF
51 RIGHTS", and that [consumers] purchasers, upon request, are given an
52 opportunity to make an oral presentation to the arbitrator;
53 § 10. Subparagraph (iv) of paragraph 3 of subdivision (m) of section
54 198-a of the general business law, as added by chapter 799 of the laws
55 of 1986, is amended to read as follows:
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1 (iv) the average number of days from the date of a [consumer's]
2 purchaser's initial request to arbitrate until the date of the final
3 arbitrator's decision and the average number of days from the date of
4 the final arbitrator's decision to the date on which performance was
5 satisfactorily carried out.
6 § 11. Paragraphs 4, 5, 6 and 7 of subdivision (n) of section 198-a of
7 the general business law, paragraphs 4, 5 and 7 as amended by chapter
8 635 of the laws of 2004, paragraph 6 as amended by chapter 26 of the
9 laws of 2005, are amended to read as follows:
10 (4) If, within the first eighteen thousand miles of operation or
11 during the period of two years following the date of original delivery
12 of the motor vehicle to such [consumer] purchaser, whichever is the
13 earlier date, the manufacturer of a motor home or its agents or its
14 authorized dealers or repair shops to which they refer a [consumer]
15 purchaser are unable to repair or correct any covered defect or condi-
16 tion which substantially impairs the value of the motor home to the
17 [consumer] purchaser after a reasonable number of attempts, the motor
18 home manufacturer, at the option of the [consumer] purchaser, shall
19 replace the motor home with a comparable motor home, or accept return of
20 the motor home from the [consumer] purchaser and refund to the [consum-
21 er] purchaser the full purchase price or, if applicable, the lease price
22 and any trade-in allowance plus fees and charges as well as the other
23 fees and charges set forth in paragraph one of subdivision (c) of this
24 section.
25 (5) If an agent or authorized dealer of a motor home manufacturer or a
26 repair shop to which they refer a [consumer] purchaser refuses to under-
27 take repairs within seven days of receipt of notice by a [consumer]
28 purchaser of a nonconformity, defect or condition within the first eigh-
29 teen thousand miles of operation or during the period of two years
30 following the date of original delivery of the motor home to such
31 [consumer] purchaser, whichever is the earlier date, the [consumer]
32 purchaser may immediately forward written notice of such refusal to the
33 motor home manufacturer by certified mail, return receipt requested. The
34 motor home manufacturer or its authorized agent or a repair shop to
35 which they refer a [consumer] purchaser shall have twenty days from
36 receipt of such notice of refusal to commence such repairs. If within
37 such twenty day period, the motor home manufacturer or its authorized
38 agent or repair shop to which they refer a [consumer] purchaser, fails
39 to commence such repairs, the motor home manufacturer, at the option of
40 the [consumer] purchaser, shall replace the motor home with a comparable
41 motor home, or accept return of the motor home from the [consumer]
42 purchaser and refund to the [consumer] purchaser the full purchase price
43 or, if applicable, the lease price, and any trade-in allowance or other
44 charges, fees, or allowances. Such fees and charges shall include but
45 not be limited to all license fees, registration fees, and any similar
46 governmental charges, less an allowance for the [consumer's] purchaser's
47 use of the vehicle in excess of the first twelve thousand miles of oper-
48 ation pursuant to the mileage deduction formula defined in paragraph
49 four of subdivision (a) of this section, and a reasonable allowance for
50 any damage not attributable to normal wear or improvements.
51 (6) If within the first eighteen thousand miles of operation or during
52 the period of two years following the date of original delivery of the
53 motor home to such [consumer] purchaser, whichever is the earlier date,
54 the same covered nonconformity, defect or condition in a motor home has
55 been subject to repair two times or a motor home has been out of service
56 by reason of repair for twenty-one days, whichever occurs first, the
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1 [consumer] purchaser must have reported this to the motor home manufac-
2 turer or its authorized dealer by certified mail, return receipt
3 requested, and may institute any proceeding or other action pursuant to
4 this section if the motor home has been out of service by reason of
5 three repair attempts or for at least thirty days. The special notifica-
6 tion requirements of this paragraph shall only apply if the manufacturer
7 or its authorized dealer provides a prior written copy of the require-
8 ments of this paragraph to the [consumer] purchaser and receipt of the
9 notice is acknowledged by the [consumer] purchaser in writing. If the
10 [consumer] purchaser who has received notice from the manufacturer fails
11 to comply with the special notification requirements of this paragraph,
12 additional repair attempts or days out of service by reason of repair
13 shall not be taken into account in determining whether the [consumer]
14 purchaser is entitled to a remedy provided in paragraph four of this
15 subdivision. However, additional repair attempts or days out of service
16 by reason of repair that occur after the [consumer] purchaser complies
17 with such special notification requirements shall be taken into account
18 in making that determination. It shall not count as a repair attempt if
19 the repair facility is not authorized by the applicable motor home
20 manufacturer to perform warranty work on the identified nonconformity.
21 It shall count as only one repair attempt for a motor home if the same
22 nonconformity is being addressed a second time due to the [consumer's]
23 purchaser's decision to continue traveling and to seek the repair of the
24 same nonconformity at another repair facility rather than wait for the
25 initial repair to be completed.
26 (7) Nothing in this section shall in any way limit any rights, reme-
27 dies or causes of action that a [consumer] purchaser or motor home
28 manufacturer may otherwise have against the manufacturer of the motor
29 home's chassis, or its propulsion and other components.
30 § 12. Clause (i) of subparagraph (A) and the second undesignated para-
31 graph of subparagraph (B) of paragraph 8 of subdivision (n) of section
32 198-a of the general business law, as added by chapter 635 of the laws
33 of 2004, are amended to read as follows:
34 (i) that the arbitrators participating in such mechanism are trained
35 in arbitration and familiar with the provisions of this section, that
36 the arbitrators and [consumers] purchasers who request arbitration are
37 provided with a written copy of the provisions of this section, together
38 with the notice set forth below entitled "NEW MOTOR HOME LEMON LAW BILL
39 OF RIGHTS", and that [consumers] purchasers, upon request, are given an
40 opportunity to make an oral presentation to the arbitrator;
41 The following notice shall be provided to [consumers] purchasers and
42 arbitrators and shall be printed in conspicuous ten point bold face
43 type:
44 § 13. Clause 4 of subparagraph (B) of paragraph 8 of subdivision (n)
45 of section 198-a of the general business law, as added by chapter 635 of
46 the laws of 2004, is amended to read as follows:
47 (4) IF, WITHIN THE FIRST EIGHTEEN THOUSAND MILES OF OPERATION OR
48 DURING THE PERIOD OF TWO YEARS FOLLOWING THE DATE OF ORIGINAL DELIVERY
49 OF THE MOTOR VEHICLE TO SUCH [CONSUMER] PURCHASER, WHICHEVER IS THE
50 EARLIER DATE THE MANUFACTURER OF A MOTOR HOME OR ITS AGENTS OR ITS
51 AUTHORIZED DEALERS OR REPAIR SHOPS TO WHICH THEY REFER A [CONSUMER]
52 PURCHASER ARE UNABLE TO REPAIR OR CORRECT ANY COVERED DEFECT OR CONDI-
53 TION WHICH SUBSTANTIALLY IMPAIRS THE VALUE OF THE MOTOR HOME TO THE
54 [CONSUMER] PURCHASER AFTER A REASONABLE NUMBER OF ATTEMPTS, THE MOTOR
55 HOME MANUFACTURER, AT THE OPTION OF THE [CONSUMER] PURCHASER, SHALL
56 REPLACE THE MOTOR HOME WITH A COMPARABLE MOTOR HOME, OR ACCEPT RETURN OF
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1 THE MOTOR HOME FROM THE [CONSUMER] PURCHASER AND REFUND TO THE [CONSUM-
2 ER] PURCHASER THE FULL PURCHASE PRICE OR, IF APPLICABLE, THE LEASE PRICE
3 AND ANY TRADE-IN ALLOWANCE, PLUS FEES AND CHARGES, AS WELL AS THE OTHER
4 FEES AND CHARGES, INCLUDING BUT NOT LIMITED TO ALL LICENSE FEES, REGIS-
5 TRATION FEES, AND ANY SIMILAR GOVERNMENTAL CHARGES, LESS AN ALLOWANCE
6 FOR THE [CONSUMER'S] PURCHASER'S USE OF THE VEHICLE IN EXCESS OF TWELVE
7 THOUSAND MILES TIMES THE PURCHASE PRICE, OR THE LEASE PRICE IF APPLICA-
8 BLE, OF THE VEHICLE DIVIDED BY ONE HUNDRED THOUSAND MILES, AND A REASON-
9 ABLE ALLOWANCE FOR ANY DAMAGE NOT ATTRIBUTABLE TO NORMAL WEAR OR
10 IMPROVEMENTS.
11 § 14. Subdivision (o) of section 198-a of the general business law, as
12 added by chapter 147 of the laws of 1994, is amended to read as follows:
13 (o) At the time of purchase or lease of a motor vehicle from an
14 authorized dealer in this state, the manufacturer shall provide to the
15 dealer or leaseholder, and the dealer or leaseholder shall provide to
16 the [consumer] purchaser a notice, printed in not less than eight point
17 bold face type, entitled "New Car Lemon Law Bill of Rights". The text of
18 such notice shall be identical with the notice required by paragraph two
19 of subdivision (m) of this section.
20 § 15. Paragraph 1 of subdivision a of section 198-b of the general
21 business law, as amended by chapter 530 of the laws of 1990, is amended
22 to read as follows:
23 1. ["Consumer"] "Purchaser" means the purchaser, or lessee, other than
24 for purposes of resale, of a used motor vehicle primarily used for
25 personal, family[,] or household, or business or commercial purposes and
26 subject to a warranty, and the spouse or child of the purchaser or the
27 lessee if either such motor vehicle or the lease of such motor vehicle
28 is transferred to the spouse or child during the duration of any warran-
29 ty applicable to such motor vehicle, and any other person entitled by
30 the terms of such warranty to enforce the obligations of the warranty;
31 § 16. Paragraphs 1, 2 and 3 of subdivision b of section 198-b of the
32 general business law, paragraph 1 as amended by chapter 857 of the laws
33 of 1990, paragraphs 2 and 3 as amended by chapter 444 of the laws of
34 1989, are amended to read as follows:
35 1. No dealer shall sell or lease a used motor vehicle to a [consumer]
36 purchaser without giving the [consumer] purchaser a written warranty
37 which shall at minimum apply for the following terms:
38 (a) If the used motor vehicle has thirty-six thousand miles or less,
39 the warranty shall be at minimum ninety days or four thousand miles,
40 whichever comes first.
41 (b) If the used motor vehicle has more than thirty-six thousand miles,
42 but less than eighty thousand miles, the warranty shall be at minimum
43 sixty days or three thousand miles, whichever comes first.
44 (c) If the used motor vehicle has eighty thousand miles or more but no
45 more than one hundred thousand miles, the warranty shall be at a minimum
46 thirty days or one thousand miles, whichever comes first.
47 2. The written warranty shall require the dealer or his agent to
48 repair or, at the election of the dealer, reimburse the [consumer]
49 purchaser for the reasonable cost of repairing the failure of a covered
50 part. Covered parts shall at least include the following items:
51 (a) Engine. All lubricated parts, water pump, fuel pump, manifolds,
52 engine block, cylinder head, rotary engine housings and flywheel.
53 (b) Transmission. The transmission case, internal parts, and the
54 torque converter.
55 (c) Drive axle. Front and rear drive axle housings and internal parts,
56 axle shafts, propeller shafts and universal joints.
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1 (d) Brakes. Master cylinder, vacuum assist booster, wheel cylinders,
2 hydraulic lines and fittings and disc brake calipers.
3 (e) Radiator.
4 (f) Steering. The steering gear housing and all internal parts, power
5 steering pump, valve body, piston and rack.
6 (g) Alternator, generator, starter, ignition system excluding the
7 battery.
8 3. Such repair or reimbursement shall be made by the dealer notwith-
9 standing the fact that the warranty period has expired, provided the
10 [consumer] purchaser notifies the dealer of the failure of a covered
11 part within the specified warranty period.
12 § 17. Subparagraph (i) of paragraph 4 of subdivision b of section
13 198-b of the general business law, as amended by chapter 444 of the laws
14 of 1989, such paragraph as renumbered by chapter 530 of the laws of
15 1990, is amended to read as follows:
16 (i) if the used motor vehicle is rented to someone other than the
17 [consumer] purchaser as defined in paragraph one of subdivision a of
18 this section;
19 § 18. Paragraph 1 of subdivision c of section 198-b of the general
20 business law, as amended by chapter 444 of the laws of 1989, is amended
21 to read as follows:
22 1. If the dealer or his agent fails to correct a malfunction or defect
23 as required by the warranty specified in this section which substantial-
24 ly impairs the value of the used motor vehicle to the [consumer]
25 purchaser after a reasonable period of time, the dealer shall accept
26 return of the used motor vehicle from the [consumer] purchaser and
27 refund to the [consumer] purchaser the full purchase price, or in the
28 case of a lease contract all payments made under the contract, including
29 sales or compensating use tax, less a reasonable allowance for any
30 damage not attributable to normal wear or usage, and adjustment for any
31 modifications which either increase or decrease the market value of the
32 vehicle or of the lease contract, and in the case of a lease contract,
33 shall cancel all further payments due from the [consumer] purchaser
34 under the lease contract. In determining the purchase price to be
35 refunded or in determining all payments made under a lease contract to
36 be refunded, the purchase price, or all payments made under a lease
37 contract, shall be deemed equal to the sum of the actual cash difference
38 paid for the used motor vehicle, or for the lease contract, plus, if the
39 dealer elects to not return any vehicles traded-in by the [consumer]
40 purchaser, the wholesale value of any such traded-in vehicles as listed
41 in the National Auto Dealers Association Used Car Guide, or such other
42 guide as may be specified in regulations promulgated by the commissioner
43 of motor vehicles, as adjusted for mileage, improvements, and any major
44 physical or mechanical defects in the traded-in vehicle at the time of
45 trade-in. The dealer selling or leasing the used motor vehicle shall
46 deliver to the [consumer] purchaser a written notice including conspicu-
47 ous language indicating that if the [consumer] purchaser should be enti-
48 tled to a refund pursuant to this section, the value of any vehicle
49 traded-in by the [consumer] purchaser, if the dealer elects to not
50 return it to the [consumer] purchaser, for purposes of determining the
51 amount of such refund will be determined by reference to the National
52 Auto Dealers Association Used Car Guide wholesale value, or such other
53 guide as may be approved by the commissioner of motor vehicles, as
54 adjusted for mileage, improvements, and any major physical or mechanical
55 defects, rather than the value listed in the sales contract. Refunds
56 shall be made to the [consumer] purchaser and lienholder, if any, as
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1 their interests may appear on the records of ownership kept by the
2 department of motor vehicles. If the amount to be refunded to the lien-
3 holder will be insufficient to discharge the lien, the dealer shall
4 notify the [consumer] purchaser in writing by registered or certified
5 mail that the [consumer] purchaser has thirty days to pay the lienholder
6 the amount which, together with the amount to be refunded by the dealer,
7 will be sufficient to discharge the lien. The notice to the [consumer]
8 purchaser shall contain conspicuous language warning the [consumer]
9 purchaser that failure to pay such funds to the lienholder within thirty
10 days will terminate the dealer's obligation to provide a refund. If the
11 [consumer] purchaser fails to make such payment within thirty days, the
12 dealer shall have no further responsibility to provide a refund under
13 this section. Alternatively, the dealer may elect to offer to replace
14 the used motor vehicle with a comparably priced vehicle, with such
15 adjustment in price as the parties may agree to. The [consumer] purchas-
16 er shall not be obligated to accept a replacement vehicle, but may
17 instead elect to receive the refund provided under this section. It
18 shall be an affirmative defense to any claim under this section that:
19 (a) The malfunction or defect does not substantially impair such
20 value; or
21 (b) The malfunction or defect is the result of abuse, neglect or
22 unreasonable modifications or alterations of the used motor vehicle.
23 § 19. Subparagraph (b) of paragraph 2 and paragraph 4 of subdivision c
24 of section 198-b of the general business law, as amended by chapter 444
25 of the laws of 1989, are amended to read as follows:
26 (b) The vehicle is out of service by reason of repair or malfunction
27 or defect for a cumulative total of fifteen or more days during the
28 warranty period. Said period shall not include days when the dealer is
29 unable to complete the repair because of the unavailability of necessary
30 repair parts. The dealer shall be required to exercise due diligence in
31 attempting to obtain necessary repair parts. Provided, however, that if
32 a vehicle has been out of service for a cumulative total of forty-five
33 days, even if a portion of that time is attributable to the unavailabil-
34 ity of replacement parts, the [consumer] purchaser shall be entitled to
35 the replacement or refund remedies provided in this section.
36 4. The term of any warranty, service contract or repair insurance, and
37 the fifteen day out-of-service period, shall be extended by any time
38 during which repair services are not available to the [consumer]
39 purchaser because of a war, invasion or strike, fire, flood or other
40 natural disaster.
41 § 20. Subdivisions d and e of section 198-b of the general business
42 law, as amended by chapter 444 of the laws of 1989, paragraph 3 of
43 subdivision d as amended by chapter 692 of the laws of 1994, are amended
44 to read as follows:
45 d. Waiver void. 1. Any agreement entered into by a [consumer] purchas-
46 er for the purchase or lease of a used motor vehicle which waives,
47 limits or disclaims the rights set forth in this article shall be void
48 as contrary to public policy. Further, if a dealer fails to give the
49 written warranty required by this article, the dealer nevertheless shall
50 be deemed to have given said warranty as a matter of law.
51 2. Nothing in this section shall in any way limit the rights or reme-
52 dies which are otherwise available to a [consumer] purchaser under any
53 other law.
54 3. Notwithstanding paragraph one of this subdivision, this article
55 shall not apply to used motor vehicles sold for, or in the case of a
56 lease where the value of the used motor vehicle as agreed to by the
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1 [consumer] purchaser and the dealer which vehicle is the subject of the
2 contract is, less than one thousand five hundred dollars, or to used
3 motor vehicles with over one hundred thousand miles at the time of sale
4 or lease if said mileage is indicated in writing at the time of sale or
5 lease. Further, this article shall not apply to the sale or lease of
6 historical motor vehicles as defined in section four hundred one of the
7 vehicle and traffic law.
8 e. Time of delivery, location of warranty and notice. The written
9 warranty provided for in subdivision b of this section and the written
10 notice provided for in subdivision c of this section shall be delivered
11 to the [consumer] purchaser at or before the time the [consumer]
12 purchaser signs the sales or lease contract for the used motor vehicle.
13 The warranty and the notice may be set forth on one sheet or on separate
14 sheets. They may be separate from, attached to, or a part of the sales
15 or lease contract. If they are part of the sales or lease contract, they
16 shall be separated from the other contract provisions and each headed by
17 a conspicuous title.
18 § 21. The opening paragraph of paragraph 1 of subdivision f of section
19 198-b of the general business law, as separately amended by chapters 444
20 and 609 of the laws of 1989, is amended to read as follows:
21 If a dealer has established or participates in an informal dispute
22 settlement procedure which complies in all respects with the provisions
23 of part seven hundred three of title sixteen of the code of federal
24 regulations the provisions of this article concerning refunds or
25 replacement shall not apply to any consumer who has not first resorted
26 to such procedure. Dealers utilizing informal dispute settlement proce-
27 dures pursuant to this subdivision shall [insure] ensure that arbitra-
28 tors participating in such informal dispute settlement procedures are
29 familiar with the provisions of this section and shall provide to arbi-
30 trators and [consumers] purchasers who seek arbitration a copy of the
31 provisions of this section together with the following notice in
32 conspicuous ten point bold face type:
33 § 22. Paragraphs 2, 3, 4, 5 and 6 of subdivision f of section 198-b of
34 the general business law, paragraphs 2, 4 and 6 as separately amended by
35 chapters 444 and 609 of the laws of 1989, paragraph 3 as amended by
36 chapter 323 of the laws of 1997, paragraph 5 as amended by chapter 487
37 of the laws of 1990, are amended to read as follows:
38 2. A dealer shall have up to thirty days from the date of notice by
39 the [consumer] purchaser that the arbitrator's decision has been
40 accepted to comply with the terms of such decision. Provided, however,
41 that nothing contained in this subdivision shall impose any liability on
42 a dealer where a delay beyond the thirty day period is attributable to a
43 [consumer] purchaser who has requested a particular replacement vehicle
44 or otherwise made compliance impossible within said period.
45 3. Upon the payment of a prescribed filing fee, a [consumer] purchaser
46 shall have the option of submitting any dispute arising under this
47 section to an alternate arbitration mechanism established pursuant to
48 regulations promulgated hereunder by the attorney general. Upon applica-
49 tion of the [consumer] purchaser and payment of the filing fee, the
50 dealer shall submit to such alternate arbitration.
51 Such alternate arbitration shall be conducted by a professional arbi-
52 trator or arbitration firm appointed by and under regulations estab-
53 lished by the attorney general. Such mechanism shall ensure the personal
54 objectivity of its arbitrators and the right of each party to present
55 its case, to be in attendance during any presentation made by the other
56 party and to rebut or refute such presentation. In all other respects,
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1 such alternate arbitration mechanism shall be governed by article seven-
2 ty-five of the civil practice law and rules.
3 The notice required by paragraph one of this subdivision, entitled
4 Used Car Lemon Law Bill of Rights, shall be provided to arbitrators and
5 [consumers] purchasers who seek arbitration under this subdivision.
6 A dealer shall have thirty days from the date of mailing of a copy of
7 the arbitrator's decision to such dealer to comply with the terms of
8 such decision. Failure to comply within the thirty day period shall
9 entitle the [consumer] purchaser to recover, in addition to any other
10 recovery to which he may be entitled, a fee of twenty-five dollars for
11 each business day beyond thirty days up to five hundred dollars;
12 provided however, that nothing in this subdivision shall impose any
13 liability on a dealer where a delay beyond the thirty day period is
14 attributable to a [consumer] purchaser who has requested a particular
15 replacement vehicle or otherwise made compliance impossible within said
16 period.
17 The commissioner of motor vehicles or any person deputized by him may
18 deny the application of any person for registration under section four
19 hundred fifteen of the vehicle and traffic law and suspend or revoke a
20 registration under such section or refuse to issue a renewal thereof if
21 he or such deputy determines that such applicant or registrant or any
22 officer, director, stockholder, or partner, or any other person directly
23 or indirectly interested in the business has deliberately failed to pay
24 an arbitration award, which has not been stayed or appealed, rendered in
25 an arbitration proceeding pursuant to this paragraph for sixty days
26 after the date of mailing of a copy of the award to the registrant. Any
27 action taken by the commissioner of motor vehicles pursuant to this
28 paragraph shall be governed by the procedures set forth in subdivision
29 nine of section four hundred fifteen of the vehicle and traffic law.
30 4. In no event shall a [consumer] purchaser who has resorted to an
31 informal dispute settlement procedure be precluded from seeking the
32 rights or remedies available by law.
33 5. In an action brought to enforce the provisions of this article, the
34 court may award reasonable attorney's fees to a prevailing plaintiff or
35 to a [consumer] purchaser who prevails in any judicial action or
36 proceeding arising out of an arbitration proceeding held pursuant to
37 paragraph three of this subdivision. In the event a prevailing plaintiff
38 is required to retain the services of an attorney to enforce collection
39 of an award granted pursuant to this section, the court may assess
40 against the dealer reasonable attorney's fees for services rendered to
41 enforce collection of said award.
42 6. Any action brought pursuant to this article shall be commenced
43 within four years of the date of original delivery of the used motor
44 vehicle to the [consumer] purchaser.
45 § 23. Subdivision g of section 198-b of the general business law, as
46 added by chapter 147 of the laws of 1994, is amended to read as follows:
47 g. Notice of [consumer] purchaser rights. At the time of purchase or
48 lease of a used motor vehicle from a dealer in this state, the dealer
49 shall provide to the [consumer] purchaser a notice, printed in not less
50 than eight point bold face type, entitled "Used Car Lemon Law Bill of
51 Rights". The text of such notice shall be identical with the notice
52 required by paragraph one of subdivision f of this section.
53 § 24. Paragraph 3 of subdivision (b) of section 198-c of the general
54 business law, as added by chapter 254 of the laws of 2010, is amended to
55 read as follows:
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1 (3) The time period specified in paragraph one or two of this subdivi-
2 sion may be shortened if the dealer and [consumer] purchaser agree, in
3 writing, to a shorter time period.
4 § 25. This act shall take effect immediately.
