N.Y. General Municipal Law § 109-d: Emergency vehicle warranties

§ 109-d. Emergency vehicle warranties. 1. Definitions. As used in this

section:

a. "Ambulance" means a motor vehicle designed, appropriately equipped

and used for the purpose of: (i) transporting emergency medical

personnel and equipment to sick or injured persons; and (ii) carrying

sick or injured persons by a person or entity registered or certified as

an ambulance service by the department of health, that was subject to a

manufacturer's express warranty at the time of original delivery and was

purchased or transferred in this state within either the first eighteen

thousand miles of operation or two years from the date of original

delivery, whichever is earlier.

b. "Fire vehicle" means a motor vehicle specially designed and

equipped for firefighting purposes which was subject to a manufacturer's

express warranty at the time of original delivery and was purchased or

transferred in this state within either the first two thousand hours of

service or two years from the date of original delivery, whichever is

earlier.

c. "Municipal consumer" means a political subdivision or fire company

which is the purchaser or transferee of a fire vehicle or ambulance and

any other person entitled by the terms of the warranty to enforce the

obligations of such warranty.

d. "Warranty" means the written warranty, so labeled, of the

manufacturer and any other warranties set forth in the manufacturer's or

its agent's bid or offer submitted where competitive bidding is required

by statute, rule, regulation or local law, including but not limited to,

a bid or offer submitted pursuant to the competitive bidding

requirements of section one hundred three of this article, and including

any conditions precedent to the enforcement of obligations under such

warranties.

2. Warranties. a. (i) If a new fire vehicle which is sold and

registered in this state does not conform to all express warranties

during the first two thousand hours of service or during the period of

two years following the date of original delivery of the fire vehicle to

the municipal consumer, whichever is the earlier date, or if a new

ambulance which is sold and registered in this state does not conform to

all express warranties during the first eighteen thousand miles of

operation or during the period of two years following the date of

original delivery of the ambulance to the municipal consumer, whichever

is the earlier date, the municipal consumer shall during such period

report the nonconformity, defect or condition to the manufacturer, its

agent or its authorized dealer. If the notification is received by the

manufacturer's agent or authorized dealer, the agent or dealer shall

within seven days forward written notice thereof to the manufacturer by

certified mail, return receipt requested, and shall include in such

notice a statement indicating whether or not such repairs have been

undertaken. The manufacturer, its agent or its authorized dealer shall

correct said nonconformity, defect or condition at no charge to the

municipal consumer, notwithstanding the fact that such repairs are made

after the expiration of such period of operation or such two year

period.

(ii) If a manufacturer's agent or authorized dealer refuses to

undertake repairs within seven days of receipt of the notice by a

municipal consumer of a nonconformity, defect or condition pursuant to

subparagraph (i) of this paragraph, the municipal consumer may

immediately forward written notice of such refusal to the manufacturer

by certified mail, return receipt requested. The manufacturer or its

authorized agent shall have twenty days from receipt of such notice of

refusal to commence such repairs. If within such twenty day period, the

manufacturer or its authorized agent fails to commence such repairs, the

manufacturer, at the option of the municipal consumer, shall replace the

fire vehicle or ambulance with a comparable vehicle, or accept return of

the fire vehicle or ambulance from the municipal consumer and refund to

the municipal consumer the full purchase price plus fees and charges.

Such fees and charges shall include but not be limited to all license

fees, registration fees and any similar governmental charges, less a

reasonable allowance for any damage not attributable to normal wear or

improvements.

b. (i) If, within the period specified in paragraph a of this

subdivision, the manufacturer or its agents or authorized dealers are

unable to repair or correct any defect or condition which substantially

impairs the value of the fire vehicle or ambulance to the municipal

consumer after a reasonable number of attempts, the manufacturer, at the

option of the municipal consumer, shall replace the fire vehicle or

ambulance with a comparable vehicle, or accept return of the fire

vehicle or ambulance from the municipal consumer and refund to the

municipal consumer the full purchase price plus fees and charges. Any

return of a fire vehicle or ambulance may, at the option of the

municipal consumer, be made to the dealer or other authorized agent of

the manufacturer who sold such fire vehicle or ambulance to the

municipal consumer or to the dealer or other authorized agent who

attempted to repair or correct the defect or condition which

necessitated the return and shall not be subject to any further shipping

charges. Such fees and charges shall include but not be limited to all

license fees, registration fees and any similar governmental charges,

less a reasonable allowance for any damage not attributable to normal

wear or improvements.

(ii) A manufacturer which accepts return of a fire vehicle or

ambulance because such vehicle does not conform to its warranty shall

notify the commissioner of motor vehicles that the fire vehicle or

ambulance was returned to the manufacturer for nonconformity to its

warranty and shall disclose, in accordance with the provisions of

section four hundred seventeen-c of the vehicle and traffic law prior to

resale either at wholesale or retail, that it was previously returned to

the manufacturer for nonconformity to its warranty. Refunds shall be

made to the municipal consumer and lienholder, if any, as their

interests may appear on the records of ownership kept by the department

of motor vehicles.

(iii) It shall be an affirmative defense to any claim under this

section that:

(A) the nonconformity, defect or condition does not substantially

impair the value of the fire vehicle or ambulance; or

(B) the nonconformity, defect or condition is the result of abuse,

neglect, or unauthorized modifications or alterations of the fire

vehicle or ambulance.

c. It shall be presumed that a reasonable number of attempts have been

undertaken to conform a fire vehicle or ambulance to the applicable

express warranties, if:

(i) the same nonconformity, defect or condition has been subject to

repair four or more times by the manufacturer or its agents or

authorized dealers within the first two thousand hours of service or

during the period of two years following the date of original delivery

of the fire vehicle to a municipal consumer, whichever is the earlier

date, or, within the first eighteen thousand miles of operation or

during the period of two years following the date of original delivery

of the ambulance to a municipal consumer, whichever is the earlier date,

but such nonconformity, defect or condition continues to exist; or

(ii) the fire vehicle or ambulance is out of service by reason of

repair of one or more nonconformities, defects or conditions for a

cumulative total of thirty or more calendar days during either period,

whichever is the earlier date.

d. The term of an express warranty, the two year warranty period and

the thirty day out of service period shall be extended by any time

during which repair services are not available to the municipal consumer

because of a war, invasion or strike, fire, flood or other natural

disaster.

3. Informal dispute settlement. a. (i) If a manufacturer has

established an informal dispute settlement mechanism, such mechanism

shall comply in all respects with the provisions of this section;

provided, however, that the provisions of subdivision two of this

section concerning refunds or replacement shall not apply to any

municipal consumer who has not first resorted to such mechanism. In the

event that an arbitrator in such an informal dispute mechanism awards a

refund or replacement fire vehicle or ambulance, he or she shall not

reduce the award to an amount less than the full purchase price or a

fire vehicle or ambulance of equal value, plus all fees and charges

except to the extent such reductions are specifically permitted under

subdivision two of this section.

(ii) A manufacturer shall have up to thirty days from the date the

municipal consumer notifies the manufacturer of their acceptance of the

arbitrator's decision to comply with the terms of that decision. Failure

to comply with the thirty day limitation shall also entitle the

municipal consumer to recover a fee of twenty-five dollars for each

business day of noncompliance up to five hundred dollars. Provided,

however, that nothing contained in this paragraph shall impose any

liability on a manufacturer where a delay beyond the thirty day period

is attributable to a municipal consumer who has requested a replacement

fire vehicle or ambulance built to order or with options that are not

comparable to the vehicle being replaced or otherwise made compliance

impossible within said period. In no event shall a municipal consumer

who has resorted to an informal dispute settlement mechanism be

precluded from seeking the rights or remedies available by law.

b. (i) Each municipal 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 municipal consumer and payment of the

filing fee, all manufacturers shall submit to such alternate

arbitration. Such alternate arbitration shall be conducted by a

professional arbitrator or arbitration firm appointed by and under

regulations established by the New York state attorney general. Such

mechanism shall insure the personal objectivity of its arbitrators and

the right of each party to present its case, to be in attendance during

any presentation made by the other party and to rebut or refute such

presentation. In all other respects, such alternate arbitration

mechanism shall be governed by article seventy-five of the civil

practice law and rules; provided, however, that notwithstanding

paragraph (i) of subdivision (a) of section seventy-five hundred two of

the civil practice law and rules, special proceedings brought before a

court pursuant to such article seventy-five in relation to an

arbitration hereunder shall be brought only in the county where the

municipal consumer is located or where the arbitration was held or is

pending.

(ii) A court may award reasonable attorney's fees to a municipal

consumer who prevails in any judicial action or proceeding arising out

of an arbitration proceeding held pursuant to subparagraph (i) of this

paragraph. In the event a municipal consumer is required to retain the

services of an attorney to enforce collection of an award granted

pursuant to this section, the court may assess against the manufacturer

reasonable attorney's fees for services rendered to enforce collection

of said award.

c. (i) Each manufacturer shall require that each informal dispute

settlement mechanism used by it provide, at a minimum, the following:

(A) that the arbitrators participating in such mechanism are trained

in arbitration and familiar with the provisions of this section, that

the arbitrators and municipal consumers who request arbitration are

provided with a written copy of the provisions of this section, together

with the notice set forth below entitled "NEW EMERGENCY VEHICLE LEMON

LAW BILL OF RIGHTS", and that municipal consumers, upon request, are

given an opportunity to make an oral presentation to the arbitrator;

(B) that the rights and procedures used in the mechanism comply with

federal regulations promulgated by the federal trade commission relating

to informal dispute settlement mechanisms; and

(C) that the remedies set forth under paragraph c of subdivision two

of this section are awarded if, after a reasonable number of attempts

have been undertaken under paragraph d of subdivision two of this

section to conform the vehicle to the express warranties, the defect or

nonconformity still exists.

(ii) The following notice shall be provided to municipal consumers and

arbitrators and shall be printed in conspicuous ten point bold face

type:

NEW EMERGENCY VEHICLE LEMON LAW BILL OF RIGHTS

(1) IN ADDITION TO ANY WARRANTIES OFFERED BY THE MANUFACTURER, YOUR

NEW FIRE VEHICLE, IF PURCHASED AND REGISTERED IN NEW YORK STATE, IS

WARRANTED AGAINST ALL MATERIAL DEFECTS FOR THE FIRST TWO THOUSAND HOURS

OF OPERATION OR TWO YEARS, WHICHEVER COMES FIRST AND YOUR NEW AMBULANCE,

IF PURCHASED AND REGISTERED IN NEW YORK STATE, IS WARRANTED AGAINST ALL

MATERIAL DEFECTS FOR THE FIRST EIGHTEEN THOUSAND MILES OR TWO YEARS,

WHICHEVER COMES FIRST.

(2) YOU MUST REPORT ANY PROBLEMS TO THE MANUFACTURER, ITS AGENT OR

AUTHORIZED DEALER.

(3) UPON NOTIFICATION, THE PROBLEM MUST BE CORRECTED FREE OF CHARGE.

(4) IF THE SAME PROBLEM CANNOT BE REPAIRED AFTER FOUR OR MORE

ATTEMPTS; OR IF YOUR FIRE VEHICLE OR AMBULANCE IS OUT OF SERVICE TO

REPAIR A PROBLEM FOR A TOTAL OF THIRTY DAYS DURING THE WARRANTY PERIOD;

OR IF THE MANUFACTURER OR ITS AGENT REFUSES TO REPAIR A SUBSTANTIAL

DEFECT OR CONDITION WITHIN TWENTY DAYS OF RECEIPT OF NOTICE SENT BY YOU

TO THE MANUFACTURER BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED; THEN

YOU MAY BE ENTITLED TO EITHER A COMPARABLE FIRE VEHICLE OR AMBULANCE,

OR, A REFUND OF YOUR PURCHASE PRICE PLUS LICENSE AND REGISTRATION FEES.

(5) A MANUFACTURER MAY DENY LIABILITY IF THE PROBLEM IS CAUSED BY

ABUSE, NEGLECT, OR UNAUTHORIZED MODIFICATIONS OF THE FIRE VEHICLE OR

AMBULANCE.

(6) A MANUFACTURER MAY REFUSE TO EXCHANGE A COMPARABLE FIRE VEHICLE OR

AMBULANCE, OR, REFUND YOUR PURCHASE PRICE IF THE PROBLEM DOES NOT

SUBSTANTIALLY IMPAIR THE VALUE OF YOUR FIRE VEHICLE OR AMBULANCE.

(7) IF A MANUFACTURER HAS ESTABLISHED AN ARBITRATION PROCEDURE, THE

MANUFACTURER MAY REFUSE TO EXCHANGE A COMPARABLE FIRE VEHICLE OR

AMBULANCE, OR, REFUND YOUR PURCHASE PRICE UNTIL YOU FIRST RESORT TO THE

PROCEDURE.

(8) IF THE MANUFACTURER DOES NOT HAVE AN ARBITRATION PROCEDURE, YOU

MAY RESORT TO ANY REMEDY BY LAW AND MAY BE ENTITLED TO YOUR ATTORNEY'S

FEES IF YOU PREVAIL.

(9) NO CONTRACT OR AGREEMENT CAN VOID ANY OF THESE RIGHTS.

(10) AS AN ALTERNATIVE TO THE ARBITRATION PROCEDURE MADE AVAILABLE

THROUGH THE MANUFACTURER, YOU MAY INSTEAD CHOOSE TO SUBMIT YOUR CLAIM TO

AN INDEPENDENT ARBITRATOR, APPROVED BY THE ATTORNEY GENERAL. YOU MAY

HAVE TO PAY A FEE FOR SUCH AN ARBITRATION. CONTACT THE ATTORNEY

GENERAL'S OFFICE TO FIND OUT HOW TO ARRANGE FOR INDEPENDENT ARBITRATION.

(iii) All informal dispute settlement mechanisms shall maintain the

following records:

(A) the number of purchase price refunds and fire vehicle and

ambulance replacements requested, the number of each awarded in

arbitration, the amount of each award and the number of awards that were

complied with in a timely manner;

(B) the number of awards where additional repairs or a warranty

extension was the most prominent remedy, the amount or value of each

award, and the number of such awards that were complied with in a timely

manner;

(C) the number and total dollar amount of awards where some form of

reimbursement for expenses or compensation for losses was the most

prominent remedy, the amount or value of each award and the number of

such awards that were complied with in a timely manner; and

(D) the average number of days from the date of a municipal consumer's

initial request to arbitrate until the date of the final arbitrator's

decision and the average number of days from the date of the final

arbitrator's decision to the date on which performance was

satisfactorily carried out.

d. Any action brought pursuant to this section shall be commenced

within four years of the date of original delivery of the fire vehicle

or ambulance to the municipal consumer.

4. Notice of rights. At the time of purchase of a fire vehicle or

ambulance, the manufacturer, its agent or authorized dealer shall

provide to the municipal consumer a notice, printed in not less than

eight point bold face type, entitled "New Emergency Vehicle Lemon Law

Bill of Rights". The text of such notice shall be identical with the

notice required by paragraph c of subdivision three of this section.

5. Void agreements. Any agreement entered into by a municipal consumer

for the purchase of a new fire vehicle or ambulance which waives, limits

or disclaims the rights set forth in this section shall be void as

contrary to public policy. Said rights shall inure to a subsequent

transferee of such fire vehicle or ambulance. Any provision of any

agreement entered into by a municipal consumer for the purchase of a new

fire vehicle or ambulance which includes as an additional cost for such

vehicle an expense identified as being for the purpose of affording such

municipal consumer their rights under this section, shall be void as

contrary to public policy.

6. Preservation of rights. Nothing in this section shall in any way

limit the rights or remedies which are otherwise available to a

municipal consumer under any other law.