Nulud v Mercedes-Benz USA, LLC

[*1] Nulud v Mercedes-Benz USA, LLC 2006 NY Slip Op 52397(U) [14 Misc 3d 1203(A)] Decided on December 12, 2006 Civil Court Of The City Of New York, New York County Hagler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2006
Civil Court of the City of New York, New York County

Antonio Nulud, Jr., Plaintiff,

against

Mercedes-Benz USA, LLC, Defendant.



300619 TSN 2005



Plaintiff represented by: Sadis & Goldberg LLC, 551 Fifth Avenue, 21st Floor, New York, NY 10176, Tel: 212-947-3793; by Francis Bigelow, Esq.

Defendant represented by: McManus Collura & Richter, P.C., 48 Wall Street, 25th Floor, New York, NY 10005, Tel: 212-425-3100, by John McManus, Esq.

Shlomo S. Hagler, J.

Plaintiff Antonio Nulud, Jr. ("plaintiff" or "Nulud") moves for an order pursuant to CPLR § 3212 granting him partial summary judgment on "Count V" of his complaint alleging a violation of General Business Law ("GBL") § 198-a, better known as the "New Car Lemon Law." Defendant Mercedes-Benz USA, LLC ("defendant" or "Mercedes-Benz") opposes the motion.

Procedural History

In April 2005, plaintiff commenced this action against defendant in Supreme Court, New York County by summons and complaint. (Exhibit "A" to the Motion). In June 2005, defendant interposed an answer essentially denying the allegations of the complaint and asserting various affirmative defenses. (Exhibit "B" to the Motion). Thereafter, the Supreme Court transferred this matter to the Civil Court pursuant to CPLR § 325(d).

Factual Background

On or about November 24, 2003, plaintiff took delivery of a new Mercedes-Benz C240W bearing vehicle identification number WDBRF1J24A566904 ("Vehicle") from a dealership, Mercedes-Benz Manhattan, Inc. ("Dealership") for personal use which was manufactured by the defendant. (Exhibit "C" to the Motion). In February 2004, plaintiff allegedly experienced mechanical problems with the Vehicle.

On February 27, 2004, plaintiff brought the Vehicle to the Dealership for repair complaining of: (1) "vibration felt at idle in gear," (2) "clanging/rattling noise at engine," and (3) "car wanders." (Exhibit "D" to the Motion and Exhibit "B" to the Opposition papers). The Vehicle's mileage was 3,733 miles. Daniel Edwards ("Edwards"), the Dealership's service director, acknowledges that a wheel alignment was performed on the Vehicle, but claims that it was necessitated by driving conditions rather than a defect in manufacturing. (Edwards Aff. sworn to on October 20, 2006, in opposition to the Motion ["Edwards Aff."], at ¶ 5). Although Edwards also avers that "[t]he invoice reflects that no repairs were made to the vehicle at that time for the complaints of vibration and [*2]clanging . . ." (id.), the Dealership's own invoice shows that the intake manifold pressure sensor was replaced in response to the plaintiff's complaint of "vibration felt at idle in gear . . ." (Exhibit "D" to the Motion and Exhibit "B" to the Opposition papers). Edwards claims that on March 2, 2004 all work on the Vehicle was completed and it was ready for customer pick-up. (Edwards Aff. at ¶ 5). Moreover, when plaintiff picked-up his Vehicle on March 4, 2004, he was told, inter alia, that the "manifold pressure sensor was reading erratically and had been replaced . . ." (Nulud Aff., sworn to on August 11, 2006, in support of the Motion, at ¶ 6).

On November 22, 2004, plaintiff again brought the Vehicle to the Dealership for repair complaining, inter alia, that the: (1) "Vehicle hesitates when accelerating," (2) "Vehicle vibrates at idle and very slow speeds," (3) Vehicle "makes clicking noise," (4) Vehicle "stalled twice while driving and all lights went out," and (5) Vehicle had "transmission fuel leak." (Exhibit "E" to the Motion and Exhibit "B" to the Opposition papers). The Vehicle's mileage was 10,643 miles. Edward concedes that the crankshaft pulley and the transmission seals and housing were replaced to repair the vibration problem and transmission fuel leak. (Edwards Aff. at ¶ 8). This repair work was performed on November 22 and 23 and on December 20, 2004. Edwards also states on "December 20, 2005 [FN1] . . . it [the Vehicle] was available for the customer to pick it up." Id. However, plaintiff avers that the Dealership did not contact him to inform him that the Vehicle was available for pick-up until ten days later, on December 30, 2004. (Nulud Aff., in support of the Motion at ¶ 8; Nulud Reply Aff., sworn to on October 24, 2006, at ¶ 7).

As a result of the Vehicle being out of service for repairs for allegedly more than thirty days due to various defects, plaintiff lost confidence in the Vehicle and revoked his acceptance thereof. Defendant has refused plaintiff's revocation of acceptance. Plaintiff states the various defects substantially impair the Vehicle's value and he has ceased driving it entirely. (Nulud Aff. at ¶ 10; Complaint at ¶ 14-17).

Summary Judgment

The movant has the initial burden of proving entitlement to summary judgment. Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 (1985). Once the movant has provided such proof, in order to defend the summary judgment motion the opposing party must "show facts sufficient to require a trial of any issue of fact." CPLR § 3212(b); Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 (1980); Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 (1979); Freedman v Chemical Construction Corp., 43 NY2d 260, 401 NYS2d 176 (1977); Spearmon v Times Square Stores Corp., 46 AD2d 522, 465 NYS2d 230 (2d Dept 1983). "It is incumbent upon a [litigant] who opposes a motion for summary judgment to assemble, lay bare and reveal [his, her, or its] proof, in order to show that the matters set up in [the answer] are real and are capable of being established upon a trial." Spearmon, 96 AD2d at 232 (quoting DiSabato v Soffes, 9 AD2d 297, 301, 193 NYS2d 184, 189 [1st Dept 1959]). If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's paper, the movant's facts may be deemed admitted and summary judgment granted since no triable issue of fact exists. Kuehne & Nagel, Inc. v F.W. Baiden, 36 NY2d 539, 543-544, 369 NYS2d 667, 671 (1975).

New Car Lemon Law[*3]

In 1983, the Legislature enacted General Business Law § 198-a, better known as the New Car Lemon Law, to provide consumer purchasers of new vehicles greater protection than that afforded by automobile manufacturers' express limited warranty under the Federal Magnuson-Moss Warranty Act, 15 USC § 2301. See L. 1983, ch. 466; Motor Vehicle Mfrs Assn. of the U.S., Inc. v State of New York, 75 NY2d 175, 551 NYS2d 470 (1990). The New Car Lemon Law is "unquestionably a remedial statue" as it provides "an effective means of redress for consumers who purchased chronically defective vehicles." See Matter of Hynson [American Motor Sales Corp - Chrysler Corp.], 164 AD2d 41, 48, 561 NYS2d 589, 593 (2d Dept 1990). As with all remedial statutes, the New Lemon Law must be liberally construed in favor of consumers. Id.

The New Car Lemon Law, GBL § 198-a(c)(1), provides, inter alia, that:

If, within [the earlier of 18,000 miles or two years] 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 motor vehicle to the consumer after a reasonable number of attempts, the manufacturer, at the option of the consumer, shall [either] replace the motor vehicle with a comparable motor vehicle, or accept return of the vehicle from the consumer and refund to the consumer the full purchase price . . . (Emphasis added).

The New Car Lemon Law also establishes "repair attempts" and "out of service" presumptions as follows:

(d) It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties, if:

(1) 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 eighteen thousand miles of operation or during the period of two years following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date, but such nonconformity, defect or condition continues to exist; or

(2) the vehicle 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.

GBL § 198-a(d)(1) and (2) (emphasis added).

However, the New Car Lemon Law recognizes the manufacturer's two affirmative defenses as follows:

It shall be an affirmative defense to any claim under this section that:

(I)the nonconformity, defect or condition does not substantially impair such value; or

(ii)the nonconformity, defect or condition is the result of abuse, neglect or unauthorized modifications or alterations of the motor vehicle.

GBL § 198-a(c)(3).

It is the plaintiff's burden to demonstrate that the nonconformity, defect or condition substantially impairs the value of the motor vehicle and the manufacturer or its agents failed to repair [*4]either the motor vehicle four or more times or the motor vehicle was out of service by reason of repair for a cumulative total of thirty days or more calendar days. Jandreau v LaVigne, 170 AD2d 861, 566 NYS2d 683 (2d Dept 1991). The plaintiff is not required to produce expert testimony to establish its burden of proof. Id. The manufacturer maintains the burden of proof in establishing its affirmative defenses. Id.

Arguments

Plaintiff argues that it is entitled to partial summary judgment as a matter of law because the Vehicle was out of service by reason of repair for more than thirty days during the applicable warranty period pursuant to GBL § 198-a(d)(2). Defendant counters that the Vehicle was out of service for repair on only three days, November 22, 23 and December 20, 2004. Implicit in this argument is that the intervening days that the Vehicle was in the Dealership's possession from November 24 through December 19, 2004, when no work was allegedly performed, should be excluded from the calculation. Moreover, defendant inexplicably excludes the period from February 27 through March 2, 2004, even though the Dealership's own invoice reflects that the manifold pressure sensor was replaced during that time to resolve the persistent vibration problem which was again repaired in November and December, 2004. (Exhibit "B" to the Opposition papers).

Analysis

There is a paucity of cases that explain the "out of service" calculation. At one end of the spectrum, a court included "time when the vehicle had broken down but was not in the dealer's possession for the purpose of repair." Kepenis v Ro-Zap Enterprises, Inc., 179 Misc 2d 874, 877, 686 NYS2d 248, 250 (Sup Ct, Saratoga County 1998). At the other end of the spectrum, a trial court (as affirmed by the appellate courts) excluded time that the motor vehicle was in defendant's possession due to plaintiff's convenience or was unrelated to the particular warranty repair. Fortune v Scott Ford, Inc., 175 AD2d 303, 572 NYS2d 382 (3d Dept 1991) appeal dismissed, 78 NY2d 1007, 575 NYS2d 457 (1991). In the middle of the spectrum is the position that the time the motor vehicle remained in defendant's possession is included in the "out of service" calculation. Cannon v Newmar Corp., 287 F Supp 2d 222 (WDNY 2003).

In this case, it is uncontroverted that the Vehicle remained in Dealership's possession from February 27, 2004 through March 2, 2004 and again from November 22, 2006 through December 20, 2004. On both occasions, the Dealership repaired the Vehicle's persistent vibration problems. While defendant inexplicably and conclusorily discounts the first repair dates, the Dealership's own invoice reflects that the Vehicle was, at the very least, actually out of service by reason of repair of the manifold pressure sensor (which caused the vibration) on February 27 and March 1 and 2, 2004.[FN2] (Exhibit "B" to the Opposition papers, at p. 2 of 3).

Notwithstanding the above repair, plaintiff complained of the same or similar vibration problems as well as a transmission fuel leak on November 22, 2004. The Dealership's own invoice for this repair reflects that it performed work related to either the recurrent vibration problem and/or the transmission leak on November 22, 23 and December 20, 2004. (Exhibit "B" to the Opposition [*5]papers). While defendant and the Dealership concede these three days of out of service repair, they both nonetheless seek to exclude the intervening period that the Vehicle was in the Dealership's possession from November 24, 2004 through December 19, 2004, without explaining the lengthy gap in service. There is no allegation that the Vehicle was in the Dealership's possession due to either plaintiff's convenience or by reason of an unrelated repair. In fact, there is no service activity recorded at all in the Dealership's invoice from November 24 through December 19, 2004. As such, at the very least, the period of November 22 through December 20, 1994, when the Vehicle was in the Dealership's possession, including the unexplained gap in service, must be included in the "out of service by reason of repair" calculation. To hold otherwise would impermissibly constrict the salutary and liberal construction of this remedial statute to protect consumers who purchased new vehicles.

Therefore, applying the standard set forth in Fortune v Scott Ford, Inc., supra , the minimum periods that the Vehicle was out of service by reason of repair of one or more nonconformities, defects or conditions, include the days from February 27, 2005 through March 2, 2004, and from November 22, 2004 through December 20, 2004, for a total of more than thirty (30) days. Furthermore, these periods do not include days when the repairs were completed but the Dealership allegedly was waiting for the plaintiff to pick up the Vehicle. Thus, this Court holds as a matter of law that the Vehicle was 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 the applicable period pursuant to GBL § 198-a(d)(2).

Defendant has failed to sustain its affirmative defenses. Although defendant claims that the defects or conditions did not substantially impair the value of the Vehicle, it has not presented any evidence to support that defense other than conclusory statements without any factual support.

Conclusion

Accordingly, this Court grants plaintiff partial summary judgment against defendant on the issue of liability under "Count V" of the complaint alleging a violation of GBL § 198-a. The remaining counts of the complaint are severed and continue.

Plaintiff is directed to serve a copy of this decision and order with a Notice of Entry upon the defendant. Regarding the issue of damages, plaintiff is directed to comply with the procedures for placing this matter on the appropriate calendar, including payment of any required fees. Upon plaintiff's compliance with these directions, the clerk is directed to schedule this matter in the appropriate part of the court to determine damages.

The foregoing constitutes the decision and order of this Court. Courtesy copies of this decision and order have been sent to counsel for the parties.

Dated:New York, New York/s/ Shlomo S. Hagler

December 12, 2006Hon. Shlomo S. Hagler, J.C.C. Footnotes

Footnote 1:.This is an apparent scrivener's error as the invoice reflects that all work was completed in December, 2004 not 2005.

Footnote 2:.In fact, the "out of service" time should also include the intervening dates of Saturday, February 28, and Sunday, February 29, 2004, when the Vehicle was in the Dealership's possession awaiting the completion of the repairs.