General Motors Corp. v Gatewood

[*1] General Motors Corp. v Gatewood 2005 NY Slip Op 51818(U) [9 Misc 3d 1127(A)] Decided on November 7, 2005 Supreme Court, Onondaga County Centra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 7, 2005
Supreme Court, Onondaga County

General Motors Corporation, Plaintiff,

against

Gail Gatewood, Defendant.



05-4420



JUSTIN E. PROPER, ESQ.

ROSE LAW FIRM, PLLC

Attorneys for Plaintiff

501 New Karner Road

Albany, NY 12205

RONALD J. PELLIGRA, ESQ.

Attorney for Defendant

205 S. Townsend Street

Syracuse, NY 13202

John V. Centra, J.

On April 15, 2005, Respondent filed a New Car Lemon Law Arbitration Program Request for Arbitration form with the New York State Attorney General's office alleging that Petitioner had failed to repair a water leak in Respondent's 2004 Chevrolet SSR. A hearing was scheduled for May 19, 2005 and was conducted on that date. At the hearing, the issues in dispute were (1) whether there were 4 or more repair attempts for the same problem within 18,000 miles or 24 months, whichever is earlier; (2) whether the problem continued to exist at the end of the fourth repair attempt; (3) whether the vehicle was out of service due to repairs for 30 or more days within 18,000 miles or 24 months, whichever is earlier; and (4) whether the problem substantially [*2]impaired the value of the vehicle to Respondent.

After the hearing, as evidenced by the Summary of Evidence portion of the award, there was testimony that Respondent's vehicle has had and continues to have a water leakage problem, specifically in the bed of the truck and on the right side of the truck. Further, the arbitrator heard testimony that Respondent cannot use the truck bed when it is raining. Respondent testified that the most typical leakage is at a car wash and during a rainfall. In addition, Respondent testified that the vehicle was out of service for 30 or more days during the warranty period.

In the Arbitrator's Findings portion of the award, the arbitrator found that (1) the vehicle is primarily used for personal, family or household purposes and (2) the problem substantially impair the value of the vehicle to the consumer, and was not a result of the consumer's abuse, neglect or unauthorized modification or alteration of the vehicle. Further, the arbitrator found that there were 4 or more repair attempts for the same problem within 18,000 miles or 24 months, whichever is earlier, and the problem continued to exist at the end of the fourth repair attempt. As a result of these findings, the arbitrator concluded that Respondent qualified for relief under the Lemon Law and was entitled to a full refund of her purchase price.

"Because Lemon Law arbitration is compulsory, judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and have a rational basis supported by adequate evidence in the record". Matter of Safari Motor Coaches Inc. (Corwin), 225 AD2d 921, 922 (3rd Dept. 1996). The record demonstrates that Respondent brought the vehicle in for repair 4 or more times within 18,000 miles or 24 months and the problem continued to exist at the end of the fourth repair attempt.

Although Petitioner argues that the defect was a natural operating characteristic of the vehicle, the arbitrator specifically found that the problem substantially impaired the value of the vehicle to the consumer. This court finds sufficient support for this in the record before it.

This court disagrees with Petitioner's opinion regarding the meaning of the language in the statute that states that the nonconformity, defect or condition must "continue[] to exist". Petitioner argues that a consumer must prove that the nonconformity, defect or condition must exist at the time of the [*3]trial or hearing. However, "there is absolutely nothing in the language of the repair presumption which makes the entitlement to the presumption contingent upon the condition of the vehicle at the time of the hearing or trial. . . . [That language] has nothing to do with the condition of the vehicle at the time of hearing or trial." DaimlerChrysler Corp. v. Spitzer, 6 Misc 3d 228 (Albany Co. 2004).

Accordingly, Petitioner's application is denied. The arbitrator's decision is confirmed. Petitioner is to refund $43,417.50 to Respondent. In addition, Respondent is entitled to $500 for late payment as well as the costs and disbursements of this action. Last, Respondent is entitled to reasonable attorney's fees pursuant to General Business Law §198-a(l).

Respondent is to submit an order on notice along with an affidavit as to attorney's fees.

JOHN V. CENTRA

Supreme Court Justice

Dated: November 7, 2005

Syracuse, New York