Bill Text: NY S00192 | 2021-2022 | General Assembly | Introduced
Bill Title: Provides certain warranties and protections for purchasers of new and used motor vehicles; includes commercial and business purchasers under the Lemon law.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Engrossed - Dead) 2022-05-23 - referred to consumer affairs and protection [S00192 Detail]
Download: New_York-2021-S00192-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 192 2021-2022 Regular Sessions IN SENATE (Prefiled) January 6, 2021 ___________ Introduced by Sen. THOMAS -- read twice and ordered printed, and when printed to be committed to the Committee on Consumer 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 EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02302-01-1S. 192 2 1 notice thereof to the manufacturer by certified mail, return receipt 2 requested, and shall include in such notice a statement indicating 3 whether or not such repairs have been undertaken. The manufacturer, its 4 agent or its authorized dealer shall correct said nonconformity, defect 5 or condition at no charge to the [consumer] purchaser, notwithstanding 6 the fact that such repairs are made after the expiration of such period 7 of operation or such two year period. 8 (2) If a manufacturer's agent or authorized dealer refuses to under- 9 take repairs within seven days of receipt of the notice by a [consumer] 10 purchaser of a nonconformity, defect or condition pursuant to paragraph 11 one of this subdivision, the [consumer] purchaser may immediately 12 forward written notice of such refusal to the manufacturer by certified 13 mail, return receipt requested. The manufacturer or its authorized 14 agent shall have twenty days from receipt of such notice of refusal to 15 commence such repairs. If within such twenty day period, the manufactur- 16 er or its authorized agent fails to commence such repairs, the manufac- 17 turer, at the option of the [consumer] purchaser, shall replace the 18 motor vehicle with a comparable motor vehicle, or accept return of the 19 vehicle from the [consumer] purchaser and refund to the [consumer] 20 purchaser the full purchase price or, if applicable, the lease price and 21 any trade-in allowance plus fees and charges. Such fees and charges 22 shall include but not be limited to all license fees, registration fees 23 and any similar governmental charges, less an allowance for the [consum-24er's] purchaser's use of the vehicle in excess of the first twelve thou- 25 sand miles of operation pursuant to the mileage deduction formula 26 defined in paragraph four of subdivision (a) of this section, and a 27 reasonable allowance for any damage not attributable to normal wear or 28 improvements. 29 § 3. Paragraphs 1 and 2 of subdivision (c) of section 198-a of the 30 general business law, paragraph 1 as amended by chapter 234 of the laws 31 of 1990, paragraph 2 as amended by chapter 29 of the laws of 1989, are 32 amended to read as follows: 33 (1) If, within the period specified in subdivision (b) of this 34 section, the manufacturer or its agents or authorized dealers are unable 35 to repair or correct any defect or condition which substantially impairs 36 the value of the motor vehicle to the [consumer] purchaser after a 37 reasonable number of attempts, the manufacturer, at the option of the 38 [consumer] purchaser, shall replace the motor vehicle with a comparable 39 motor vehicle, or accept return of the vehicle from the [consumer] 40 purchaser and refund to the [consumer] purchaser the full purchase price 41 or, if applicable, the lease price and any trade-in allowance plus fees 42 and charges. Any return of a motor vehicle may, at the option of the 43 [consumer] purchaser, be made to the dealer or other authorized agent of 44 the manufacturer who sold such vehicle to the [consumer] purchaser or to 45 the dealer or other authorized agent who attempted to repair or correct 46 the defect or condition which necessitated the return and shall not be 47 subject to any further shipping charges. Such fees and charges shall 48 include but not be limited to all license fees, registration fees and 49 any similar governmental charges, less an allowance for the [consumer's] 50 purchaser's use of the vehicle in excess of the first twelve thousand 51 miles of operation pursuant to the mileage deduction formula defined in 52 paragraph four of subdivision (a) of this section, and a reasonable 53 allowance for any damage not attributable to normal wear or improve- 54 ments. 55 (2) A manufacturer which accepts return of the motor vehicle because 56 the motor vehicle does not conform to its warranty shall notify theS. 192 3 1 commissioner of the department of motor vehicles that the motor vehicle 2 was returned to the manufacturer for nonconformity to its warranty and 3 shall disclose, in accordance with the provisions of section four 4 hundred seventeen-a of the vehicle and traffic law prior to resale 5 either at wholesale or retail, that it was previously returned to the 6 manufacturer for nonconformity to its warranty. Refunds shall be made to 7 the [consumer] purchaser and lienholder, if any, as their interests may 8 appear on the records of ownership kept by the department of motor vehi- 9 cles. Refunds shall be accompanied by the proper application for credit 10 or refund of state and local sales taxes as published by the department 11 of taxation and finance and by a notice that the sales tax paid on the 12 purchase price, lease price or portion thereof being refunded is refund- 13 able by the commissioner of taxation and finance in accordance with the 14 provisions of subdivision (f) of section eleven hundred thirty-nine of 15 the tax law. If applicable, refunds shall be made to the lessor and 16 lessee as their interests may appear on the records of ownership kept by 17 the department of motor vehicles, as follows: the lessee shall receive 18 the capitalized cost and the lessor shall receive the lease price less 19 the aggregate deposit and rental payments previously paid to the lessor 20 for the leased vehicle. The terms of the lease shall be deemed termi- 21 nated contemporaneously with the date of the arbitrator's decision and 22 award and no penalty for early termination shall be assessed as a result 23 thereof. Refunds shall be accompanied by the proper application form for 24 credit or refund of state and local sales tax as published by the 25 department of taxation and finance and a notice that the sales tax paid 26 on the lease price or portion thereof being refunded is refundable by 27 the commissioner of taxation and finance in accordance with the 28 provisions of subdivision (f) of section eleven hundred thirty-nine of 29 the tax law. 30 § 4. Subdivision (h) of section 198-a of the general business law, as 31 amended by chapter 799 of the laws of 1986, is amended to read as 32 follows: 33 (h) A manufacturer shall have up to thirty days from the date the 34 [consumer] purchaser notifies the manufacturer of his or her acceptance 35 of the arbitrator's decision to comply with the terms of that decision. 36 Failure to comply with the thirty day limitation shall also entitle the 37 [consumer] purchaser to recover a fee of twenty-five dollars for each 38 business day of noncompliance up to five hundred dollars. Provided, 39 however, that nothing contained in this subdivision shall impose any 40 liability on a manufacturer where a delay beyond the thirty day period 41 is attributable to a [consumer] purchaser who has requested a replace- 42 ment vehicle built to order or with options that are not comparable to 43 the vehicle being replaced or otherwise made compliance impossible with- 44 in said period. In no event shall a [consumer] purchaser who has 45 resorted to an informal dispute settlement mechanism be precluded from 46 seeking the rights or remedies available by law. 47 § 5. Subdivision (i) of section 198-a of the general business law, as 48 amended by chapter 415 of the laws of 1987, is amended to read as 49 follows: 50 (i) Any agreement entered into by a [consumer] purchaser for the 51 purchase of a new motor vehicle which waives, limits or disclaims the 52 rights set forth in this section shall be void as contrary to public 53 policy. Said rights shall inure to a subsequent transferee of such motor 54 vehicle. 55 Any provision of any agreement entered into by a [consumer] purchaser 56 for the purchase of a new motor vehicle which includes as an additionalS. 192 4 1 cost for such motor vehicle an expense identified as being for the 2 purpose of affording such [consumer] purchaser his or her rights under 3 this section, shall be void as contrary to public policy. 4 § 6. Subdivision (j) of section 198-a of the general business law, as 5 added by chapter 444 of the laws of 1983, is amended to read as follows: 6 (j) Any action brought pursuant to this section shall be commenced 7 within four years of the date of original delivery of the motor vehicle 8 to the [consumer] purchaser. 9 § 7. Subdivision (k) of section 198-a of the general business law, as 10 amended by chapter 611 of the laws of 2005, is amended to read as 11 follows: 12 (k) Each [consumer] purchaser shall have the option of submitting any 13 dispute arising under this section upon the payment of a prescribed 14 filing fee to an alternate arbitration mechanism established pursuant to 15 regulations promulgated hereunder by the New York state attorney gener- 16 al. Upon application of the [consumer] purchaser and payment of the 17 filing fee, all manufacturers shall submit to such alternate arbi- 18 tration. 19 Such alternate arbitration shall be conducted by a professional arbi- 20 trator or arbitration firm appointed by and under regulations estab- 21 lished by the New York state attorney general. Such mechanism shall 22 [insure] ensure the personal objectivity of its arbitrators and the 23 right of each party to present its case, to be in attendance during any 24 presentation made by the other party and to rebut or refute such presen- 25 tation. In all other respects, such alternate arbitration mechanism 26 shall be governed by article seventy-five of the civil practice law and 27 rules; provided, however, that notwithstanding paragraph (i) of subdivi- 28 sion (a) of section seventy-five hundred two of the civil practice law 29 and rules, special proceedings brought before a court pursuant to such 30 article seventy-five in relation to an arbitration hereunder shall be 31 brought only in the county where the [consumer] purchaser resides or 32 where the arbitration was held or is pending. 33 § 8. Subdivision (l) of section 198-a of the general business law, as 34 amended by chapter 487 of the laws of 1990, is amended to read as 35 follows: 36 (l) A court may award reasonable attorney's fees to a prevailing 37 plaintiff or to a [consumer] purchaser who prevails in any judicial 38 action or proceeding arising out of an arbitration proceeding held 39 pursuant to subdivision (k) of this section. In the event a prevailing 40 plaintiff is required to retain the services of an attorney to enforce 41 collection of an award granted pursuant to this section, the court may 42 assess against the manufacturer reasonable attorney's fees for services 43 rendered to enforce collection of said award. 44 § 9. Subparagraph (i) of paragraph 1 of subdivision (m) of section 45 198-a of the general business law, as added by chapter 799 of the laws 46 of 1986, is amended to read as follows: 47 (i) that the arbitrators participating in such mechanism are trained 48 in arbitration and familiar with the provisions of this section, that 49 the arbitrators and [consumers] purchasers who request arbitration are 50 provided with a written copy of the provisions of this section, together 51 with the notice set forth below entitled "NEW CAR LEMON LAW BILL OF 52 RIGHTS", and that [consumers] purchasers, upon request, are given an 53 opportunity to make an oral presentation to the arbitrator; 54 § 10. Subparagraph (iv) of paragraph 3 of subdivision (m) of section 55 198-a of the general business law, as added by chapter 799 of the laws 56 of 1986, is amended to read as follows:S. 192 5 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-21er] 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, theS. 192 6 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 OFS. 192 7 1 THE MOTOR HOME FROM THE [CONSUMER] PURCHASER AND REFUND TO THE [CONSUM-2ER] 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.S. 192 8 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 and as renumbered by chapter 530 of the laws of 1990, is amended 15 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, asS. 192 9 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 theS. 192 10 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,S. 192 11 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:S. 192 12 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.
