N.Y. General Business Law § 670*2: Repair, replacement and refund under new wheelchair warranties

* § 670. Repair, replacement and refund under new wheelchair

warranties. 1. As used in this section:

a. "Collateral costs" means expenses incurred by a consumer in

connection with the repair of a nonconformity, including the costs of

obtaining an alternative wheelchair or other assistive device for

mobility.

b. "Consumer" means any of the following:

(1) The purchaser of a wheelchair, if the wheelchair was purchased

from a wheelchair dealer or manufacturer for purposes other than resale.

(2) A person to whom the wheelchair is transferred for purposes other

than resale, if the transfer occurs before the expiration of an express

warranty applicable to the wheelchair.

(3) A person who may enforce the warranty.

(4) A person who leases a wheelchair from a wheelchair lessor under a

written lease.

(5) State governmental agencies, subscribers to article forty-three of

the insurance law, corporations, subscribers of organizations organized

under article forty-four of the public health law, and programs governed

by title eleven of article five of the social services law.

c. "Demonstrator" means a wheelchair used primarily for the purpose of

demonstration to the public.

d. "Early termination cost" means any expense or obligation that a

wheelchair lessor incurs as a result of both the termination of a

written lease before the termination date set forth in that lease and

the return of a wheelchair to a manufacturer pursuant to subparagraph

three of paragraph b of subdivision three of this section. "Early

termination cost" includes a penalty for prepayment under a finance

arrangement.

e. "Early termination savings" means any expense or obligation that a

wheelchair lessor avoids as a result of both the termination of a

written lease before that termination date set forth in that lease and

the return of a wheelchair to a manufacturer pursuant to subparagraph

three of paragraph b of subdivision three of this section. "Early

termination savings" includes an interest charge that the wheelchair

lessor would have paid to finance the wheelchair or, if the wheelchair

lessor does not finance the wheelchair, the difference between the total

amount for which the lease obligates the consumer during the period of

the lease term remaining after the early termination and the present

value of that amount at the date of the early termination.

f. "Manufacturer" means a person who manufactures or assembles

wheelchairs and agents of that person, including an importer, a

distributor, factory branch, distributor branch and any warrantors of

the manufacturer's wheelchair, but does not include a wheelchair dealer.

g. "Wheelchair" means any wheelchair, including a demonstrator, that a

consumer purchases or accepts transfer of in this state.

h. "Wheelchair dealer" means a person who is in the business of

selling wheelchairs.

i. "Wheelchair lessor" means a person who leases a wheelchair to a

consumer, or who holds the lessor's rights, under a written lease.

j. "Nonconformity" means a condition or defect that substantially

impairs the use, value or safety of a wheelchair, and that is covered by

an express warranty applicable to the wheelchair or to a component of

the wheelchair, but does not include a condition or defect that is the

result of abuse, neglect or unauthorized modification or alteration of

the wheelchair by a consumer.

k. "Reasonable attempt to repair" means that, within the term of an

express warranty applicable to a new wheelchair, any nonconformity

within the warranty is either subject to repair by the manufacturer,

wheelchair lessor or any of the manufacturer's authorized wheelchair

dealers, for at least three times and a nonconformity continues, or that

the wheelchair is out of service for an aggregate of at least thirty

days because of warranty nonconformity, after having been returned to

the manufacturer, wheelchair lessor or any of the manufacturer's

authorized wheelchair dealers for repair.

2. a. A manufacturer who sells a wheelchair to a consumer, either

directly or through a wheelchair dealer, shall furnish the consumer with

an express warranty for the wheelchair. The duration of the express

warranty shall be not less than one year after first delivery of the

wheelchair to the consumer. In the absence of an express warranty from

the manufacturer, the manufacturer shall be deemed to have expressly

warranted to the consumer of a wheelchair that, for a period of one year

from the date of first delivery to the consumer, the wheelchair will be

free from any condition or defect which substantially impairs the value

of the wheelchair to the consumer.

b. The following notice shall be provided in conspicuous type and in

substantially the following form by the manufacturer, wheelchair dealer

or wheelchair lessor to each consumer at the time of purchase:

WHEELCHAIR LEMON LAW BILL OF RIGHTS

(1) By law, the manufacturer shall be deemed to have provided to you,

the purchaser of a wheelchair, a one year warranty which starts on the

date of first delivery to you. This warranty provides that the

wheelchair will be free from any condition or defect that substantially

impairs its use, value or safety.

(2) To ensure you receive the benefits of this warranty, you must

report any problems and make the wheelchair available to the

manufacturer, authorized wheelchair dealer or wheelchair lessor for

repair before one year after first delivery.

(3) Upon notification and the wheelchair's being made available to the

manufacturer or its authorized dealer, the problem must be corrected

free of charge.

(4) During the warranty period, if any condition or defect cannot be

repaired after three attempts or if your wheelchair is out of service

for a total of thirty days for repairs to any condition or defect which

substantially impairs the use, value or safety of the wheelchair, you

are entitled to either a comparable new wheelchair or a refund or, if

you are leasing a wheelchair, replacement of your wheelchair with a

comparable new wheelchair or a refund of the full purchase price plus

any finance charge and collateral costs, minus a reasonable allowance

for use.

(5) The warranty provided to you by law does not cover conditions or

defects that result from abuse, neglect or unauthorized modification or

alteration of the wheelchair and relieves the manufacturer of liability

for repairs in these instances.

(6) A manufacturer may refuse to replace a wheelchair or refund your

purchase price if a problem does not substantially impair the use, value

or safety of your wheelchair.

(7) You may submit any dispute with a manufacturer, dealer or lessor

arising from a dispute over the repair of your wheelchair to an

alternate arbitration mechanism established pursuant to rules

promulgated by the New York state attorney general.

(8) No contract or agreement for the sale or lease of a wheelchair can

void any of these rights.

3. a. If a new wheelchair does not conform to an applicable express

warranty and the consumer reports the nonconformity to the manufacturer,

the wheelchair lessor or any of the manufacturer's authorized wheelchair

dealers and makes the wheelchair available for repair before one year

after first delivery of the wheelchair to a consumer, the nonconformity

shall be repaired at no charge to the consumer.

b. (1) If, after a reasonable attempt to repair, the nonconformity is

not repaired, the manufacturer shall carry out the requirement set forth

under either subparagraph two or three of this paragraph, whichever is

appropriate.

(2) At the direction of a consumer described under subparagraph one,

two or three of paragraph b of subdivision one of this section, do one

of the following:

(a) Accept return of the wheelchair and replace the wheelchair with a

comparable new wheelchair and refund any collateral costs.

(b) Accept return of the wheelchair and refund to the consumer and to

any holder of a perfected security interest in the consumer's

wheelchair, as their interest may appear, the full purchase price plus

any finance charge amount paid by the consumer at the point of sale and

collateral costs, less a reasonable allowance for use. A reasonable

allowance for use may not exceed the amount obtained by multiplying the

full purchase price of the wheelchair by a fraction, the denominator of

which is one thousand eight hundred twenty-five and the numerator of

which is the number of days that the wheelchair was driven before the

consumer first reported the nonconformity to the wheelchair dealer.

(3) (a) With respect to a consumer described under subparagraph four

of paragraph b of subdivision one of this section, accept return of the

wheelchair, refund to the wheelchair lessor and to any holder of a

perfected security interest in the wheelchair, as their interest may

appear, the current value of the written lease and refund to the

consumer the amount that the consumer paid under the written lease plus

any collateral costs, less a reasonable allowance for use.

(b) The current value of the written lease equals the total amount for

which that lease obligates the consumer during the period of the lease

remaining after its early termination, plus the wheelchair dealer's

early termination costs and the value of the wheelchair at the lease

expiration date if the lease sets forth that value, less the wheelchair

lessor's early termination savings.

(c) A reasonable allowance for use may not exceed the amount obtained

by multiplying the total amount for which the written lease obligates

the consumer by a fraction, the denominator of which is one thousand

eight hundred twenty-five and the numerator of which is the number of

days that the consumer drove the wheelchair before first reporting the

nonconformity to the manufacturer, wheelchair lessor or wheelchair

dealer.

c. To receive a comparable new wheelchair or a refund due under

subparagraph one or two of paragraph b of this subdivision, a consumer

described under subparagraph one, two or three of paragraph b of

subdivision one of this section, shall offer to the manufacturer of the

wheelchair having the nonconformity to transfer possession of that

wheelchair to that manufacturer. No later than twenty days after that

offer, the manufacturer shall provide the consumer with the comparable

new wheelchair or refund. When the manufacturer provides the new

wheelchair or refund, the consumer shall return the wheelchair having

the nonconformity to the manufacturer, along with any endorsements

necessary to transfer real possession to the manufacturer.

d. (1) To receive a refund due under subparagraph three of paragraph b

of this subdivision, a consumer described under subparagraph four of

paragraph b of subdivision one of this section shall offer to return the

wheelchair having the nonconformity to its manufacturer. No later than

thirty days after that offer, the manufacturer shall provide the refund

to the consumer. When the manufacturer provides the refund, the consumer

shall return to the manufacturer the wheelchair having the

nonconformity.

(2) To receive a refund due under subparagraph three of paragraph b of

this subdivision, a wheelchair lessor shall offer to transfer possession

of the wheelchair having the nonconformity to its manufacturer. No later

than thirty days after that offer, the manufacturer shall provide the

refund to the wheelchair lessor. When the manufacturer provides the

refund, the wheelchair lessor shall provide to the manufacturer any

endorsements necessary to transfer legal possession to the manufacturer.

(3) No person may enforce the lease against the consumer after the

consumer receives a refund due under subparagraph three of paragraph b

of this subdivision.

e. No wheelchair returned by a consumer or wheelchair lessor in this

state pursuant to paragraph b of this subdivision, or by a consumer or

wheelchair lessor in another state under a similar law of that state,

may be sold or leased again in this state unless full disclosure of the

reasons for return is made to any prospective buyer or lessee.

4. a. Each consumer shall have the option of submitting any dispute

arising under this section upon the payment of a prescribed filing fee

to an alternate arbitration mechanism established pursuant to

regulations promulgated hereunder by the New York state attorney

general. Upon application of the consumer and payment of the filing fee,

all manufacturers shall submit to such alternate arbitration.

b. Such alternate arbitration shall be conducted by a professional

arbitrator or arbitration firm appointed by and under regulations

established by the New York state attorney general. Such mechanism shall

insure the personal objectivity of its arbitrators and the right of each

party to present its case, to be in attendance during any presentation

made by the other party and to rebut or refute such presentation. In all

other respects, such alternate arbitration mechanism shall be governed

by article seventy-five of the civil practice law and rules. Where

applicable, any action required of a manufacturer, wheelchair dealer or

wheelchair lessor to comply with a final decision of such arbitrator

shall be completed within forty days of the date of such decision.

5. This section does not limit rights or remedies available to a

consumer under any other law.

6. Any waiver by a consumer of rights under this section is void.

7. In addition to pursuing any other remedy, a consumer may bring an

action to recover for any damages caused by a violation of this section.

The court shall award a consumer who prevails in such an action twice

the amount of any pecuniary loss, together with costs, disbursements and

reasonable attorney fees, and any equitable relief that the court

determines is appropriate.

* NB There are 2 § 670's