Bill Text: NY S04427 | 2019-2020 | General Assembly | Amended


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 2-0)

Status: (Engrossed) 2019-06-05 - referred to consumer affairs and protection [S04427 Detail]

Download: New_York-2019-S04427-Amended.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                         4427--A
                               2019-2020 Regular Sessions
                    IN SENATE
                                     March 11, 2019
                                       ___________
        Introduced  by  Sen.  THOMAS -- read twice and ordered printed, and when
          printed to be committed to the Committee  on  Consumer  Protection  --
          committee  discharged,  bill amended, ordered reprinted as amended and
          recommitted to said committee
        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
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD00481-02-9

        S. 4427--A                          2
     1  dealer, the agent or dealer shall  within  seven  days  forward  written
     2  notice  thereof  to  the  manufacturer by certified mail, return receipt
     3  requested, and shall include  in  such  notice  a  statement  indicating
     4  whether  or not such repairs have been undertaken. The manufacturer, its
     5  agent or its authorized dealer shall correct said nonconformity,  defect
     6  or  condition  at no charge to the [consumer] purchaser, notwithstanding
     7  the fact that such repairs are made after the expiration of such  period
     8  of operation or such two year period.
     9    (2)  If  a manufacturer's agent or authorized dealer refuses to under-
    10  take repairs within seven days of receipt of the notice by a  [consumer]
    11  purchaser  of a nonconformity, defect or condition pursuant to paragraph
    12  one of  this  subdivision,  the  [consumer]  purchaser  may  immediately
    13  forward  written notice of such refusal to the manufacturer by certified
    14  mail, return receipt requested.   The  manufacturer  or  its  authorized
    15  agent  shall  have twenty days from receipt of such notice of refusal to
    16  commence such repairs. If within such twenty day period, the manufactur-
    17  er or its authorized agent fails to commence such repairs, the  manufac-
    18  turer,  at  the  option  of  the [consumer] purchaser, shall replace the
    19  motor vehicle with a comparable motor vehicle, or accept return  of  the
    20  vehicle  from  the  [consumer]  purchaser  and  refund to the [consumer]
    21  purchaser the full purchase price or, if applicable, the lease price and
    22  any trade-in allowance plus fees and  charges.  Such  fees  and  charges
    23  shall  include but not be limited to all license fees, registration fees
    24  and any similar governmental charges, less an allowance for the [consum-
    25  er's] purchaser's use of the vehicle in excess of the first twelve thou-
    26  sand miles of  operation  pursuant  to  the  mileage  deduction  formula
    27  defined  in  paragraph  four  of  subdivision (a) of this section, and a
    28  reasonable allowance for any damage not attributable to normal  wear  or
    29  improvements.
    30    §  3.  Paragraphs  1  and 2 of subdivision (c) of section 198-a of the
    31  general business law, paragraph 1 as amended by chapter 234 of the  laws
    32  of  1990,  paragraph 2 as amended by chapter 29 of the laws of 1989, are
    33  amended to read as follows:
    34    (1) If, within  the  period  specified  in  subdivision  (b)  of  this
    35  section, the manufacturer or its agents or authorized dealers are unable
    36  to repair or correct any defect or condition which substantially impairs
    37  the  value  of  the  motor  vehicle  to the [consumer] purchaser after a
    38  reasonable number of attempts, the manufacturer, at the  option  of  the
    39  [consumer]  purchaser, shall replace the motor vehicle with a comparable
    40  motor vehicle, or accept return  of  the  vehicle  from  the  [consumer]
    41  purchaser and refund to the [consumer] purchaser the full purchase price
    42  or,  if applicable, the lease price and any trade-in allowance plus fees
    43  and charges. Any return of a motor vehicle may, at  the  option  of  the
    44  [consumer] purchaser, be made to the dealer or other authorized agent of
    45  the manufacturer who sold such vehicle to the [consumer] purchaser or to
    46  the  dealer or other authorized agent who attempted to repair or correct
    47  the defect or condition which necessitated the return and shall  not  be
    48  subject  to  any  further  shipping charges. Such fees and charges shall
    49  include but not be limited to all license fees,  registration  fees  and
    50  any similar governmental charges, less an allowance for the [consumer's]
    51  purchaser's  use  of  the vehicle in excess of the first twelve thousand
    52  miles of operation pursuant to the mileage deduction formula defined  in
    53  paragraph  four  of  subdivision  (a)  of this section, and a reasonable
    54  allowance for any damage not attributable to  normal  wear  or  improve-
    55  ments.

        S. 4427--A                          3
     1    (2)  A  manufacturer which accepts return of the motor vehicle because
     2  the motor vehicle does not conform to  its  warranty  shall  notify  the
     3  commissioner  of the department of motor vehicles that the motor vehicle
     4  was returned to the manufacturer for nonconformity to its  warranty  and
     5  shall  disclose,  in  accordance  with  the  provisions  of section four
     6  hundred seventeen-a of the vehicle  and  traffic  law  prior  to  resale
     7  either  at  wholesale  or retail, that it was previously returned to the
     8  manufacturer for nonconformity to its warranty. Refunds shall be made to
     9  the [consumer] purchaser and lienholder, if any, as their interests  may
    10  appear on the records of ownership kept by the department of motor vehi-
    11  cles.  Refunds shall be accompanied by the proper application for credit
    12  or  refund of state and local sales taxes as published by the department
    13  of taxation and finance and by a notice that the sales tax paid  on  the
    14  purchase price, lease price or portion thereof being refunded is refund-
    15  able  by the commissioner of taxation and finance in accordance with the
    16  provisions of subdivision (f) of section eleven hundred  thirty-nine  of
    17  the  tax  law.  If  applicable,  refunds shall be made to the lessor and
    18  lessee as their interests may appear on the records of ownership kept by
    19  the department of motor vehicles, as follows: the lessee  shall  receive
    20  the  capitalized  cost and the lessor shall receive the lease price less
    21  the aggregate deposit and rental payments previously paid to the  lessor
    22  for  the  leased  vehicle. The terms of the lease shall be deemed termi-
    23  nated contemporaneously with the date of the arbitrator's  decision  and
    24  award and no penalty for early termination shall be assessed as a result
    25  thereof. Refunds shall be accompanied by the proper application form for
    26  credit  or  refund  of  state  and  local  sales tax as published by the
    27  department of taxation and finance and a notice that the sales tax  paid
    28  on  the  lease  price or portion thereof being refunded is refundable by
    29  the  commissioner  of  taxation  and  finance  in  accordance  with  the
    30  provisions  of  subdivision (f) of section eleven hundred thirty-nine of
    31  the tax law.
    32    § 4. Subdivision (h) of section 198-a of the general business law,  as
    33  amended  by  chapter  799  of  the  laws  of 1986, is amended to read as
    34  follows:
    35    (h) A manufacturer shall have up to thirty  days  from  the  date  the
    36  [consumer]  purchaser notifies the manufacturer of his or her acceptance
    37  of the arbitrator's decision to comply with the terms of that  decision.
    38  Failure  to comply with the thirty day limitation shall also entitle the
    39  [consumer] purchaser to recover a fee of twenty-five  dollars  for  each
    40  business  day  of  noncompliance  up  to five hundred dollars. Provided,
    41  however, that nothing contained in this  subdivision  shall  impose  any
    42  liability  on  a manufacturer where a delay beyond the thirty day period
    43  is attributable to a [consumer] purchaser who has requested  a  replace-
    44  ment  vehicle  built to order or with options that are not comparable to
    45  the vehicle being replaced or otherwise made compliance impossible with-
    46  in said period. In  no  event  shall  a  [consumer]  purchaser  who  has
    47  resorted  to  an informal dispute settlement mechanism be precluded from
    48  seeking the rights or remedies available by law.
    49    § 5. Subdivision (i) of section 198-a of the general business law,  as
    50  amended  by  chapter  415  of  the  laws  of 1987, is amended to read as
    51  follows:
    52    (i) Any agreement entered into  by  a  [consumer]  purchaser  for  the
    53  purchase  of  a  new motor vehicle which waives, limits or disclaims the
    54  rights set forth in this section shall be void  as  contrary  to  public
    55  policy. Said rights shall inure to a subsequent transferee of such motor
    56  vehicle.

        S. 4427--A                          4
     1    Any  provision of any agreement entered into by a [consumer] purchaser
     2  for the purchase of a new motor vehicle which includes as an  additional
     3  cost  for  such  motor  vehicle  an  expense identified as being for the
     4  purpose of affording such [consumer] purchaser his or her  rights  under
     5  this section, shall be void as contrary to public policy.
     6    §  6. Subdivision (j) of section 198-a of the general business law, as
     7  added by chapter 444 of the laws of 1983, is amended to read as follows:
     8    (j) Any action brought pursuant to this  section  shall  be  commenced
     9  within  four years of the date of original delivery of the motor vehicle
    10  to the [consumer] purchaser.
    11    § 7. Subdivision (k) of section 198-a of the general business law,  as
    12  amended  by  chapter  611  of  the  laws  of 2005, is amended to read as
    13  follows:
    14    (k) Each [consumer] purchaser shall have the option of submitting  any
    15  dispute  arising  under  this  section  upon the payment of a prescribed
    16  filing fee to an alternate arbitration mechanism established pursuant to
    17  regulations promulgated hereunder by the New York state attorney  gener-
    18  al.  Upon  application  of  the  [consumer] purchaser and payment of the
    19  filing fee, all manufacturers  shall  submit  to  such  alternate  arbi-
    20  tration.
    21    Such  alternate arbitration shall be conducted by a professional arbi-
    22  trator or arbitration firm appointed by  and  under  regulations  estab-
    23  lished  by  the  New  York  state attorney general. Such mechanism shall
    24  [insure] ensure the personal objectivity  of  its  arbitrators  and  the
    25  right  of each party to present its case, to be in attendance during any
    26  presentation made by the other party and to rebut or refute such presen-
    27  tation. In all other  respects,  such  alternate  arbitration  mechanism
    28  shall  be governed by article seventy-five of the civil practice law and
    29  rules; provided, however, that notwithstanding paragraph (i) of subdivi-
    30  sion (a) of section seventy-five hundred two of the civil  practice  law
    31  and  rules,  special proceedings brought before a court pursuant to such
    32  article seventy-five in relation to an arbitration  hereunder  shall  be
    33  brought  only  in  the  county where the [consumer] purchaser resides or
    34  where the arbitration was held or is pending.
    35    § 8. Subdivision (l) of section 198-a of the general business law,  as
    36  amended  by  chapter  487  of  the  laws  of 1990, is amended to read as
    37  follows:
    38    (l) A court may award  reasonable  attorney's  fees  to  a  prevailing
    39  plaintiff  or  to  a  [consumer]  purchaser who prevails in any judicial
    40  action or proceeding arising  out  of  an  arbitration  proceeding  held
    41  pursuant  to  subdivision (k) of this section. In the event a prevailing
    42  plaintiff is required to retain the services of an attorney  to  enforce
    43  collection  of  an award granted pursuant to this section, the court may
    44  assess against the manufacturer reasonable attorney's fees for  services
    45  rendered to enforce collection of said award.
    46    §  9.  Subparagraph  (i)  of paragraph 1 of subdivision (m) of section
    47  198-a of the general business law, as added by chapter 799 of  the  laws
    48  of 1986, is amended to read as follows:
    49    (i)  that  the arbitrators participating in such mechanism are trained
    50  in arbitration and familiar with the provisions of  this  section,  that
    51  the  arbitrators  and [consumers] purchasers who request arbitration are
    52  provided with a written copy of the provisions of this section, together
    53  with the notice set forth below entitled "NEW  CAR  LEMON  LAW  BILL  OF
    54  RIGHTS",  and  that  [consumers]  purchasers, upon request, are given an
    55  opportunity to make an oral presentation to the arbitrator;

        S. 4427--A                          5
     1    § 10. Subparagraph (iv) of paragraph 3 of subdivision (m)  of  section
     2  198-a  of  the general business law, as added by chapter 799 of the laws
     3  of 1986, is amended to read as follows:
     4    (iv)  the  average  number  of  days  from  the date of a [consumer's]
     5  purchaser's initial request to arbitrate until the  date  of  the  final
     6  arbitrator's  decision  and  the average number of days from the date of
     7  the final arbitrator's decision to the date  on  which  performance  was
     8  satisfactorily carried out.
     9    §  11. Paragraphs 4, 5, 6 and 7 of subdivision (n) of section 198-a of
    10  the general business law, paragraphs 4, 5 and 7 as  amended  by  chapter
    11  635  of  the  laws  of 2004, paragraph 6 as amended by chapter 26 of the
    12  laws of 2005, are amended to read as follows:
    13    (4) If, within the first  eighteen  thousand  miles  of  operation  or
    14  during  the  period of two years following the date of original delivery
    15  of the motor vehicle to such  [consumer]  purchaser,  whichever  is  the
    16  earlier  date,  the  manufacturer  of  a motor home or its agents or its
    17  authorized dealers or repair shops to  which  they  refer  a  [consumer]
    18  purchaser  are  unable to repair or correct any covered defect or condi-
    19  tion which substantially impairs the value of  the  motor  home  to  the
    20  [consumer]  purchaser  after  a reasonable number of attempts, the motor
    21  home manufacturer, at the option  of  the  [consumer]  purchaser,  shall
    22  replace the motor home with a comparable motor home, or accept return of
    23  the  motor home from the [consumer] purchaser and refund to the [consum-
    24  er] purchaser the full purchase price or, if applicable, the lease price
    25  and any trade-in allowance plus fees and charges as well  as  the  other
    26  fees  and  charges set forth in paragraph one of subdivision (c) of this
    27  section.
    28    (5) If an agent or authorized dealer of a motor home manufacturer or a
    29  repair shop to which they refer a [consumer] purchaser refuses to under-
    30  take repairs within seven days of receipt  of  notice  by  a  [consumer]
    31  purchaser of a nonconformity, defect or condition within the first eigh-
    32  teen  thousand  miles  of  operation  or  during the period of two years
    33  following the date of original  delivery  of  the  motor  home  to  such
    34  [consumer]  purchaser,  whichever  is  the  earlier date, the [consumer]
    35  purchaser may immediately forward written notice of such refusal to  the
    36  motor home manufacturer by certified mail, return receipt requested. The
    37  motor  home  manufacturer  or  its  authorized agent or a repair shop to
    38  which they refer a [consumer] purchaser  shall  have  twenty  days  from
    39  receipt  of  such  notice of refusal to commence such repairs. If within
    40  such twenty day period, the motor home manufacturer  or  its  authorized
    41  agent  or  repair shop to which they refer a [consumer] purchaser, fails
    42  to commence such repairs, the motor home manufacturer, at the option  of
    43  the [consumer] purchaser, shall replace the motor home with a comparable
    44  motor  home,  or  accept  return  of  the motor home from the [consumer]
    45  purchaser and refund to the [consumer] purchaser the full purchase price
    46  or, if applicable, the lease price, and any trade-in allowance or  other
    47  charges,  fees,  or  allowances. Such fees and charges shall include but
    48  not be limited to all license fees, registration fees, and  any  similar
    49  governmental charges, less an allowance for the [consumer's] purchaser's
    50  use of the vehicle in excess of the first twelve thousand miles of oper-
    51  ation  pursuant  to  the  mileage deduction formula defined in paragraph
    52  four of subdivision (a) of this section, and a reasonable allowance  for
    53  any damage not attributable to normal wear or improvements.
    54    (6) If within the first eighteen thousand miles of operation or during
    55  the  period  of two years following the date of original delivery of the
    56  motor home to such [consumer] purchaser, whichever is the earlier  date,

        S. 4427--A                          6
     1  the  same covered nonconformity, defect or condition in a motor home has
     2  been subject to repair two times or a motor home has been out of service
     3  by reason of repair for twenty-one days,  whichever  occurs  first,  the
     4  [consumer]  purchaser must have reported this to the motor home manufac-
     5  turer or  its  authorized  dealer  by  certified  mail,  return  receipt
     6  requested,  and may institute any proceeding or other action pursuant to
     7  this section if the motor home has been out  of  service  by  reason  of
     8  three repair attempts or for at least thirty days. The special notifica-
     9  tion requirements of this paragraph shall only apply if the manufacturer
    10  or  its  authorized dealer provides a prior written copy of the require-
    11  ments of this paragraph to the [consumer] purchaser and receipt  of  the
    12  notice  is  acknowledged  by the [consumer] purchaser in writing. If the
    13  [consumer] purchaser who has received notice from the manufacturer fails
    14  to comply with the special notification requirements of this  paragraph,
    15  additional  repair  attempts  or days out of service by reason of repair
    16  shall not be taken into account in determining  whether  the  [consumer]
    17  purchaser  is  entitled  to  a remedy provided in paragraph four of this
    18  subdivision. However, additional repair attempts or days out of  service
    19  by  reason  of repair that occur after the [consumer] purchaser complies
    20  with such special notification requirements shall be taken into  account
    21  in  making that determination. It shall not count as a repair attempt if
    22  the repair facility is not  authorized  by  the  applicable  motor  home
    23  manufacturer  to  perform warranty work on the identified nonconformity.
    24  It shall count as only one repair attempt for a motor home if  the  same
    25  nonconformity  is  being addressed a second time due to the [consumer's]
    26  purchaser's decision to continue traveling and to seek the repair of the
    27  same nonconformity at another repair facility rather than wait  for  the
    28  initial repair to be completed.
    29    (7)  Nothing  in this section shall in any way limit any rights, reme-
    30  dies or causes of action that  a  [consumer]  purchaser  or  motor  home
    31  manufacturer  may  otherwise  have against the manufacturer of the motor
    32  home's chassis, or its propulsion and other components.
    33    § 12. Clause (i) of subparagraph (A) and the second undesignated para-
    34  graph of subparagraph (B) of paragraph 8 of subdivision (n)  of  section
    35  198-a  of  the general business law, as added by chapter 635 of the laws
    36  of 2004, are amended to read as follows:
    37    (i) that the arbitrators participating in such mechanism  are  trained
    38  in  arbitration  and  familiar with the provisions of this section, that
    39  the arbitrators and [consumers] purchasers who request  arbitration  are
    40  provided with a written copy of the provisions of this section, together
    41  with  the notice set forth below entitled "NEW MOTOR HOME LEMON LAW BILL
    42  OF RIGHTS", and that [consumers] purchasers, upon request, are given  an
    43  opportunity to make an oral presentation to the arbitrator;
    44    The  following  notice shall be provided to [consumers] purchasers and
    45  arbitrators and shall be printed in  conspicuous  ten  point  bold  face
    46  type:
    47    §  13.  Clause 4 of subparagraph (B) of paragraph 8 of subdivision (n)
    48  of section 198-a of the general business law, as added by chapter 635 of
    49  the laws of 2004, is amended to read as follows:
    50    (4) IF, WITHIN THE FIRST  EIGHTEEN  THOUSAND  MILES  OF  OPERATION  OR
    51  DURING  THE  PERIOD OF TWO YEARS FOLLOWING THE DATE OF ORIGINAL DELIVERY
    52  OF THE MOTOR VEHICLE TO SUCH  [CONSUMER]  PURCHASER,  WHICHEVER  IS  THE
    53  EARLIER  DATE  THE  MANUFACTURER  OF  A  MOTOR HOME OR ITS AGENTS OR ITS
    54  AUTHORIZED DEALERS OR REPAIR SHOPS TO  WHICH  THEY  REFER  A  [CONSUMER]
    55  PURCHASER  ARE  UNABLE TO REPAIR OR CORRECT ANY COVERED DEFECT OR CONDI-
    56  TION WHICH SUBSTANTIALLY IMPAIRS THE VALUE OF  THE  MOTOR  HOME  TO  THE

        S. 4427--A                          7
     1  [CONSUMER]  PURCHASER  AFTER  A REASONABLE NUMBER OF ATTEMPTS, THE MOTOR
     2  HOME MANUFACTURER, AT THE OPTION  OF  THE  [CONSUMER]  PURCHASER,  SHALL
     3  REPLACE THE MOTOR HOME WITH A COMPARABLE MOTOR HOME, OR ACCEPT RETURN OF
     4  THE  MOTOR HOME FROM THE [CONSUMER] PURCHASER AND REFUND TO THE [CONSUM-
     5  ER] PURCHASER THE FULL PURCHASE PRICE OR, IF APPLICABLE, THE LEASE PRICE
     6  AND ANY TRADE-IN ALLOWANCE, PLUS FEES AND CHARGES, AS WELL AS THE  OTHER
     7  FEES  AND CHARGES, INCLUDING BUT NOT LIMITED TO ALL LICENSE FEES, REGIS-
     8  TRATION FEES, AND ANY SIMILAR GOVERNMENTAL CHARGES,  LESS  AN  ALLOWANCE
     9  FOR  THE [CONSUMER'S] PURCHASER'S USE OF THE VEHICLE IN EXCESS OF TWELVE
    10  THOUSAND MILES TIMES THE PURCHASE PRICE, OR THE LEASE PRICE IF  APPLICA-
    11  BLE, OF THE VEHICLE DIVIDED BY ONE HUNDRED THOUSAND MILES, AND A REASON-
    12  ABLE  ALLOWANCE  FOR  ANY  DAMAGE  NOT  ATTRIBUTABLE  TO  NORMAL WEAR OR
    13  IMPROVEMENTS.
    14    § 14. Subdivision (o) of section 198-a of the general business law, as
    15  added by chapter 147 of the laws of 1994, is amended to read as follows:
    16    (o) At the time of purchase or  lease  of  a  motor  vehicle  from  an
    17  authorized  dealer  in this state, the manufacturer shall provide to the
    18  dealer or leaseholder, and the dealer or leaseholder  shall  provide  to
    19  the  [consumer] purchaser a notice, printed in not less than eight point
    20  bold face type, entitled "New Car Lemon Law Bill of Rights". The text of
    21  such notice shall be identical with the notice required by paragraph two
    22  of subdivision (m) of this section.
    23    § 15. Paragraph 1 of subdivision a of section  198-b  of  the  general
    24  business  law, as amended by chapter 530 of the laws of 1990, is amended
    25  to read as follows:
    26    1. ["Consumer"] "Purchaser" means the purchaser, or lessee, other than
    27  for purposes of resale, of a  used  motor  vehicle  primarily  used  for
    28  personal, family[,] or household, or business or commercial purposes and
    29  subject  to  a warranty, and the spouse or child of the purchaser or the
    30  lessee if either such motor vehicle or the lease of such  motor  vehicle
    31  is transferred to the spouse or child during the duration of any warran-
    32  ty  applicable  to  such motor vehicle, and any other person entitled by
    33  the terms of such warranty to enforce the obligations of the warranty;
    34    § 16. Paragraphs 1, 2 and 3 of subdivision b of section 198-b  of  the
    35  general  business law, paragraph 1 as amended by chapter 857 of the laws
    36  of 1990, paragraphs 2 and 3 as amended by chapter 444  of  the  laws  of
    37  1989, are amended to read as follows:
    38    1.  No dealer shall sell or lease a used motor vehicle to a [consumer]
    39  purchaser without giving the [consumer]  purchaser  a  written  warranty
    40  which shall at minimum apply for the following terms:
    41    (a)  If  the used motor vehicle has thirty-six thousand miles or less,
    42  the warranty shall be at minimum ninety days  or  four  thousand  miles,
    43  whichever comes first.
    44    (b) If the used motor vehicle has more than thirty-six thousand miles,
    45  but  less  than  eighty thousand miles, the warranty shall be at minimum
    46  sixty days or three thousand miles, whichever comes first.
    47    (c) If the used motor vehicle has eighty thousand miles or more but no
    48  more than one hundred thousand miles, the warranty shall be at a minimum
    49  thirty days or one thousand miles, whichever comes first.
    50    2. The written warranty shall require  the  dealer  or  his  agent  to
    51  repair  or,  at  the  election  of  the dealer, reimburse the [consumer]
    52  purchaser for the reasonable cost of repairing the failure of a  covered
    53  part. Covered parts shall at least include the following items:
    54    (a)  Engine.  All  lubricated parts, water pump, fuel pump, manifolds,
    55  engine block, cylinder head, rotary engine housings and flywheel.

        S. 4427--A                          8
     1    (b) Transmission. The  transmission  case,  internal  parts,  and  the
     2  torque converter.
     3    (c) Drive axle. Front and rear drive axle housings and internal parts,
     4  axle shafts, propeller shafts and universal joints.
     5    (d)  Brakes.  Master cylinder, vacuum assist booster, wheel cylinders,
     6  hydraulic lines and fittings and disc brake calipers.
     7    (e) Radiator.
     8    (f) Steering. The steering gear housing and all internal parts,  power
     9  steering pump, valve body, piston and rack.
    10    (g)  Alternator,  generator,  starter,  ignition  system excluding the
    11  battery.
    12    3. Such repair or reimbursement shall be made by the  dealer  notwith-
    13  standing  the  fact  that  the warranty period has expired, provided the
    14  [consumer] purchaser notifies the dealer of the  failure  of  a  covered
    15  part within the specified warranty period.
    16    §  17.  Subparagraph  (i)  of  paragraph 4 of subdivision b of section
    17  198-b of the general business law, as amended by chapter 444 of the laws
    18  of 1989 and as renumbered by chapter 530 of the laws of 1990, is amended
    19  to read as follows:
    20    (i) if the used motor vehicle is rented  to  someone  other  than  the
    21  [consumer]  purchaser  as  defined  in paragraph one of subdivision a of
    22  this section;
    23    § 18. Paragraph 1 of subdivision c of section  198-b  of  the  general
    24  business  law, as amended by chapter 444 of the laws of 1989, is amended
    25  to read as follows:
    26    1. If the dealer or his agent fails to correct a malfunction or defect
    27  as required by the warranty specified in this section which substantial-
    28  ly impairs the value  of  the  used  motor  vehicle  to  the  [consumer]
    29  purchaser  after  a  reasonable  period of time, the dealer shall accept
    30  return of the used motor  vehicle  from  the  [consumer]  purchaser  and
    31  refund  to  the  [consumer] purchaser the full purchase price, or in the
    32  case of a lease contract all payments made under the contract, including
    33  sales or compensating use tax,  less  a  reasonable  allowance  for  any
    34  damage  not attributable to normal wear or usage, and adjustment for any
    35  modifications which either increase or decrease the market value of  the
    36  vehicle  or  of the lease contract, and in the case of a lease contract,
    37  shall cancel all further payments  due  from  the  [consumer]  purchaser
    38  under  the  lease  contract.  In  determining  the  purchase price to be
    39  refunded or in determining all payments made under a lease  contract  to
    40  be  refunded,  the  purchase  price,  or all payments made under a lease
    41  contract, shall be deemed equal to the sum of the actual cash difference
    42  paid for the used motor vehicle, or for the lease contract, plus, if the
    43  dealer elects to not return any vehicles  traded-in  by  the  [consumer]
    44  purchaser,  the wholesale value of any such traded-in vehicles as listed
    45  in the National Auto Dealers Association Used Car Guide, or  such  other
    46  guide as may be specified in regulations promulgated by the commissioner
    47  of  motor vehicles, as adjusted for mileage, improvements, and any major
    48  physical or mechanical defects in the traded-in vehicle at the  time  of
    49  trade-in.  The  dealer  selling  or leasing the used motor vehicle shall
    50  deliver to the [consumer] purchaser a written notice including conspicu-
    51  ous language indicating that if the [consumer] purchaser should be enti-
    52  tled to a refund pursuant to this section,  the  value  of  any  vehicle
    53  traded-in  by  the  [consumer]  purchaser,  if  the dealer elects to not
    54  return it to the [consumer] purchaser, for purposes of  determining  the
    55  amount  of  such  refund will be determined by reference to the National
    56  Auto Dealers Association Used Car Guide wholesale value, or  such  other

        S. 4427--A                          9
     1  guide  as  may  be  approved  by  the commissioner of motor vehicles, as
     2  adjusted for mileage, improvements, and any major physical or mechanical
     3  defects, rather than the value listed in  the  sales  contract.  Refunds
     4  shall  be  made  to  the [consumer] purchaser and lienholder, if any, as
     5  their interests may appear on the  records  of  ownership  kept  by  the
     6  department  of motor vehicles. If the amount to be refunded to the lien-
     7  holder will be insufficient to discharge  the  lien,  the  dealer  shall
     8  notify  the  [consumer]  purchaser in writing by registered or certified
     9  mail that the [consumer] purchaser has thirty days to pay the lienholder
    10  the amount which, together with the amount to be refunded by the dealer,
    11  will be sufficient to discharge the lien. The notice to  the  [consumer]
    12  purchaser  shall  contain  conspicuous  language  warning the [consumer]
    13  purchaser that failure to pay such funds to the lienholder within thirty
    14  days will terminate the dealer's obligation to provide a refund. If  the
    15  [consumer]  purchaser fails to make such payment within thirty days, the
    16  dealer shall have no further responsibility to provide  a  refund  under
    17  this  section.   Alternatively, the dealer may elect to offer to replace
    18  the used motor vehicle with  a  comparably  priced  vehicle,  with  such
    19  adjustment in price as the parties may agree to. The [consumer] purchas-
    20  er  shall  not  be  obligated  to  accept a replacement vehicle, but may
    21  instead elect to receive the refund  provided  under  this  section.  It
    22  shall be an affirmative defense to any claim under this section that:
    23    (a)  The  malfunction  or  defect  does  not substantially impair such
    24  value; or
    25    (b) The malfunction or defect is  the  result  of  abuse,  neglect  or
    26  unreasonable modifications or alterations of the used motor vehicle.
    27    § 19. Subparagraph (b) of paragraph 2 and paragraph 4 of subdivision c
    28  of  section 198-b of the general business law, as amended by chapter 444
    29  of the laws of 1989, are amended to read as follows:
    30    (b) The vehicle is out of service by reason of repair  or  malfunction
    31  or  defect  for  a  cumulative  total of fifteen or more days during the
    32  warranty period. Said period shall not include days when the  dealer  is
    33  unable to complete the repair because of the unavailability of necessary
    34  repair  parts. The dealer shall be required to exercise due diligence in
    35  attempting to obtain necessary repair parts. Provided, however, that  if
    36  a  vehicle  has been out of service for a cumulative total of forty-five
    37  days, even if a portion of that time is attributable to the unavailabil-
    38  ity of replacement parts, the [consumer] purchaser shall be entitled  to
    39  the replacement or refund remedies provided in this section.
    40    4. The term of any warranty, service contract or repair insurance, and
    41  the  fifteen  day  out-of-service  period, shall be extended by any time
    42  during which  repair  services  are  not  available  to  the  [consumer]
    43  purchaser  because  of  a  war, invasion or strike, fire, flood or other
    44  natural disaster.
    45    § 20. Subdivisions d and e of section 198-b of  the  general  business
    46  law,  as  amended  by  chapter  444  of the laws of 1989, paragraph 3 of
    47  subdivision d as amended by chapter 692 of the laws of 1994, are amended
    48  to read as follows:
    49    d. Waiver void. 1. Any agreement entered into by a [consumer] purchas-
    50  er for the purchase or lease of  a  used  motor  vehicle  which  waives,
    51  limits  or  disclaims the rights set forth in this article shall be void
    52  as contrary to public policy. Further, if a dealer  fails  to  give  the
    53  written warranty required by this article, the dealer nevertheless shall
    54  be deemed to have given said warranty as a matter of law.

        S. 4427--A                         10
     1    2.  Nothing in this section shall in any way limit the rights or reme-
     2  dies which are otherwise available to a [consumer] purchaser  under  any
     3  other law.
     4    3.  Notwithstanding  paragraph  one  of this subdivision, this article
     5  shall not apply to used motor vehicles sold for, or in  the  case  of  a
     6  lease  where  the  value  of  the used motor vehicle as agreed to by the
     7  [consumer] purchaser and the dealer which vehicle is the subject of  the
     8  contract  is,  less  than  one thousand five hundred dollars, or to used
     9  motor vehicles with over one hundred thousand miles at the time of  sale
    10  or  lease if said mileage is indicated in writing at the time of sale or
    11  lease. Further, this article shall not apply to the  sale  or  lease  of
    12  historical  motor vehicles as defined in section four hundred one of the
    13  vehicle and traffic law.
    14    e. Time of delivery, location of  warranty  and  notice.  The  written
    15  warranty  provided  for in subdivision b of this section and the written
    16  notice provided for in subdivision c of this section shall be  delivered
    17  to  the  [consumer]  purchaser  at  or  before  the  time the [consumer]
    18  purchaser signs the sales or lease contract for the used motor  vehicle.
    19  The warranty and the notice may be set forth on one sheet or on separate
    20  sheets.  They  may be separate from, attached to, or a part of the sales
    21  or lease contract. If they are part of the sales or lease contract, they
    22  shall be separated from the other contract provisions and each headed by
    23  a conspicuous title.
    24    § 21. The opening paragraph of paragraph 1 of subdivision f of section
    25  198-b of the general business law, as separately amended by chapters 444
    26  and 609 of the laws of 1989, is amended to read as follows:
    27    If a dealer has established or participates  in  an  informal  dispute
    28  settlement  procedure which complies in all respects with the provisions
    29  of part seven hundred three of title sixteen  of  the  code  of  federal
    30  regulations  the  provisions  of  this  article  concerning  refunds  or
    31  replacement shall not apply to any consumer who has not  first  resorted
    32  to  such procedure. Dealers utilizing informal dispute settlement proce-
    33  dures pursuant to this subdivision shall [insure] ensure  that  arbitra-
    34  tors  participating  in  such informal dispute settlement procedures are
    35  familiar with the provisions of this section and shall provide to  arbi-
    36  trators  and  [consumers]  purchasers who seek arbitration a copy of the
    37  provisions of  this  section  together  with  the  following  notice  in
    38  conspicuous ten point bold face type:
    39    § 22. Paragraphs 2, 3, 4, 5 and 6 of subdivision f of section 198-b of
    40  the general business law, paragraphs 2, 4 and 6 as separately amended by
    41  chapters  444  and  609  of  the laws of 1989, paragraph 3 as amended by
    42  chapter 323 of the laws of 1997, paragraph 5 as amended by  chapter  487
    43  of the laws of 1990, are amended to read as follows:
    44    2.  A  dealer  shall have up to thirty days from the date of notice by
    45  the  [consumer]  purchaser  that  the  arbitrator's  decision  has  been
    46  accepted  to  comply with the terms of such decision. Provided, however,
    47  that nothing contained in this subdivision shall impose any liability on
    48  a dealer where a delay beyond the thirty day period is attributable to a
    49  [consumer] purchaser who has requested a particular replacement  vehicle
    50  or otherwise made compliance impossible within said period.
    51    3. Upon the payment of a prescribed filing fee, a [consumer] purchaser
    52  shall  have  the  option  of  submitting  any dispute arising under this
    53  section to an alternate arbitration mechanism  established  pursuant  to
    54  regulations promulgated hereunder by the attorney general. Upon applica-
    55  tion  of  the  [consumer]  purchaser  and payment of the filing fee, the
    56  dealer shall submit to such alternate arbitration.

        S. 4427--A                         11
     1    Such alternate arbitration shall be conducted by a professional  arbi-
     2  trator  or  arbitration  firm  appointed by and under regulations estab-
     3  lished by the attorney general. Such mechanism shall ensure the personal
     4  objectivity of its arbitrators and the right of each  party  to  present
     5  its  case, to be in attendance during any presentation made by the other
     6  party and to rebut or refute such presentation. In all  other  respects,
     7  such alternate arbitration mechanism shall be governed by article seven-
     8  ty-five of the civil practice law and rules.
     9    The  notice  required  by  paragraph one of this subdivision, entitled
    10  Used Car Lemon Law Bill of Rights, shall be provided to arbitrators  and
    11  [consumers] purchasers who seek arbitration under this subdivision.
    12    A  dealer shall have thirty days from the date of mailing of a copy of
    13  the arbitrator's decision to such dealer to comply  with  the  terms  of
    14  such  decision.  Failure  to  comply  within the thirty day period shall
    15  entitle the [consumer] purchaser to recover, in addition  to  any  other
    16  recovery  to  which he may be entitled, a fee of twenty-five dollars for
    17  each business day  beyond  thirty  days  up  to  five  hundred  dollars;
    18  provided  however,  that  nothing  in  this subdivision shall impose any
    19  liability on a dealer where a delay beyond  the  thirty  day  period  is
    20  attributable  to  a  [consumer] purchaser who has requested a particular
    21  replacement vehicle or otherwise made compliance impossible within  said
    22  period.
    23    The  commissioner of motor vehicles or any person deputized by him may
    24  deny the application of any person for registration under  section  four
    25  hundred  fifteen  of the vehicle and traffic law and suspend or revoke a
    26  registration under such section or refuse to issue a renewal thereof  if
    27  he  or  such  deputy determines that such applicant or registrant or any
    28  officer, director, stockholder, or partner, or any other person directly
    29  or indirectly interested in the business has deliberately failed to  pay
    30  an arbitration award, which has not been stayed or appealed, rendered in
    31  an  arbitration  proceeding  pursuant  to  this paragraph for sixty days
    32  after the date of mailing of a copy of the award to the registrant.  Any
    33  action  taken  by  the  commissioner  of motor vehicles pursuant to this
    34  paragraph shall be governed by the procedures set forth  in  subdivision
    35  nine of section four hundred fifteen of the vehicle and traffic law.
    36    4.  In  no  event  shall a [consumer] purchaser who has resorted to an
    37  informal dispute settlement procedure  be  precluded  from  seeking  the
    38  rights or remedies available by law.
    39    5. In an action brought to enforce the provisions of this article, the
    40  court  may award reasonable attorney's fees to a prevailing plaintiff or
    41  to a [consumer]  purchaser  who  prevails  in  any  judicial  action  or
    42  proceeding  arising  out  of  an arbitration proceeding held pursuant to
    43  paragraph three of this subdivision. In the event a prevailing plaintiff
    44  is required to retain the services of an attorney to enforce  collection
    45  of  an  award  granted  pursuant  to  this section, the court may assess
    46  against the dealer reasonable attorney's fees for services  rendered  to
    47  enforce collection of said award.
    48    6.  Any  action  brought  pursuant  to this article shall be commenced
    49  within four years of the date of original delivery  of  the  used  motor
    50  vehicle to the [consumer] purchaser.
    51    §  23.  Subdivision g of section 198-b of the general business law, as
    52  added by chapter 147 of the laws of 1994, is amended to read as follows:
    53    g. Notice of [consumer] purchaser rights. At the time of  purchase  or
    54  lease  of  a  used motor vehicle from a dealer in this state, the dealer
    55  shall provide to the [consumer] purchaser a notice, printed in not  less
    56  than  eight  point  bold face type, entitled "Used Car Lemon Law Bill of

        S. 4427--A                         12
     1  Rights". The text of such notice shall  be  identical  with  the  notice
     2  required by paragraph one of subdivision f of this section.
     3    §  24.  Paragraph 3 of subdivision (b) of section 198-c of the general
     4  business law, as added by chapter 254 of the laws of 2010, is amended to
     5  read as follows:
     6    (3) The time period specified in paragraph one or two of this subdivi-
     7  sion may be shortened if the dealer and [consumer] purchaser  agree,  in
     8  writing, to a shorter time period.
     9    § 25. This act shall take effect immediately.
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