2006 New York Code - Repair, Replacement And Refund Under New Motorized Wheelchair Warranties

 
    * § 670. Repair, replacement and refund under new motorized 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  motorized  wheelchair,  if  the  motorized
  wheelchair   was   purchased  from  a  motorized  wheelchair  dealer  or
  manufacturer for purposes other than resale.
    (2) A person to whom  the  motorized  wheelchair  is  transferred  for
  purposes other than resale, if the transfer occurs before the expiration
  of an express warranty applicable to the motorized wheelchair.
    (3) A person who may enforce the warranty.
    (4)  A  person  who  leases  a  motorized  wheelchair from a motorized
  wheelchair lessor under a written lease.
    c. "Demonstrator" means a motorized wheelchair used primarily for  the
  purpose of demonstration to the public.
    d.  "Early  termination  cost"  means any expense or obligation that a
  motorized 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 motorized 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
  motorized 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 motorized 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
  motorized  wheelchair  lessor  would  have paid to finance the motorized
  wheelchair or, if the motorized wheelchair lessor does not  finance  the
  motorized  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
  motorized  wheelchairs and agents of that person, including an importer,
  a distributor, factory branch, distributor branch and any warrantors  of
  the   manufacturer's  motorized  wheelchair,  but  does  not  include  a
  motorized wheelchair dealer.
    g.  "Motorized  wheelchair  "  means  any   motor-driven   wheelchair,
  including  a demonstrator, that a consumer purchases or accepts transfer
  of in this state.
    h. "Motorized wheelchair dealer" means a person who is in the business
  of selling motorized wheelchairs.
    i. "Motorized wheelchair lessor" means a person who leases a motorized
  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 motorized wheelchair, and that  is
  covered by an express warranty applicable to the motorized wheelchair or
  to  a  component  of  the  motorized  wheelchair, but does not include a
  condition or defect that is the result of abuse, neglect or unauthorized
  modification or alteration of the motorized wheelchair by a consumer.
    k. "Reasonable attempt to repair" means that, within the  term  of  an
  express   warranty   applicable  to  a  new  motorized  wheelchair,  any
  nonconformity within the warranty is either subject  to  repair  by  the
  manufacturer,  motorized  wheelchair lessor or any of the manufacturer's
  authorized motorized wheelchair dealers, for at least three times and  a
  nonconformity  continues,  or  that  the  motorized wheelchair is out of
  service for an aggregate of at least thirty  days  because  of  warranty
  nonconformity, after having been returned to the manufacturer, motorized
  wheelchair  lessor  or  any  of  the manufacturer's authorized motorized
  wheelchair dealers for repair.
    2. a. A manufacturer who sells a motorized wheelchair to  a  consumer,
  either  directly or through a motorized wheelchair dealer, shall furnish
  the consumer with an express warranty for the motorized wheelchair.  The
  duration  of  the express warranty shall be not less than one year after
  first delivery of the motorized  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
  motorized  wheelchair  that,  for  a period of one year from the date of
  first delivery to the consumer, the motorized wheelchair  will  be  free
  from  any  condition  or defect which substantially impairs the value of
  the motorized wheelchair to the consumer.
    b. The following notice shall be provided in conspicuous type  and  in
  substantially   the   following  form  by  the  manufacturer,  motorized
  wheelchair dealer or motorized 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  motorized  wheelchair,  a one year warranty which
  starts on the date of first delivery to you. This warranty provides that
  the motorized 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  motorized  wheelchair  dealer  or  motorized
  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 motorized wheelchair or a refund
  or,  if  you  are  leasing  a  motorized wheelchair, replacement of your
  motorized wheelchair with a comparable new  motorized  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 motorized wheelchair and relieves the manufacturer of
  liability for repairs in these instances.
    (6) A manufacturer may refuse to replace  a  motorized  wheelchair  or
  refund  your  purchase  price if a problem does not substantially impair
  the use, value or safety of your motorized wheelchair.
    (7) You may submit any dispute with a manufacturer, dealer  or  lessor
  arising  from  a dispute over the repair of your motorized 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 motorized
  wheelchair can void any of these rights.
    3. a. If a new motorized wheelchair does not conform to an  applicable
  express  warranty  and  the  consumer  reports  the nonconformity to the
  manufacturer,  the  motorized  wheelchair   lessor   or   any   of   the
  manufacturer's  authorized  motorized  wheelchair  dealers and makes the
  motorized  wheelchair  available  for repair before one year after first
  delivery of the motorized 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  motorized  wheelchair  and  replace  the
  motorized wheelchair with a  comparable  new  motorized  wheelchair  and
  refund any collateral costs.
    (b)  Accept  return  of  the  motorized  wheelchair  and refund to the
  consumer and to any holder of  a  perfected  security  interest  in  the
  consumer's  motorized 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 motorized 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
  motorized wheelchair was driven before the consumer first  reported  the
  nonconformity to the motorized 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
  motorized  wheelchair,  refund to the motorized wheelchair lessor and to
  any holder of a perfected security interest in the motorized 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  motorized  wheelchair
  dealer's  early  termination  costs  and  the  value  of  the  motorized
  wheelchair at the lease expiration date if the  lease  sets  forth  that
  value, less the motorized 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  motorized wheelchair before first
  reporting the nonconformity to the  manufacturer,  motorized  wheelchair
  lessor or motorized wheelchair dealer.
    c.  To  receive  a comparable new motorized 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 motorized wheelchair having the nonconformity to transfer possession
  of  that motorized wheelchair to that manufacturer. No later than twenty
  days after that offer, the manufacturer shall provide the consumer  with
  the comparable new motorized wheelchair or refund. When the manufacturer
  provides  the  new  motorized  wheelchair  or refund, the consumer shall
  return  the  motorized  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
  motorized 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 motorized wheelchair
  having the nonconformity.
    (2) To receive a refund due under subparagraph three of paragraph b of
  this subdivision, a motorized wheelchair lessor shall offer to  transfer
  possession  of  the motorized wheelchair having the nonconformity to its
  manufacturer.  No  later  than  thirty  days  after  that   offer,   the
  manufacturer  shall  provide  the  refund  to  the  motorized wheelchair
  lessor.  When  the  manufacturer  provides  the  refund,  the  motorized
  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  motorized  wheelchair  returned  by  a  consumer  or  motorized
  wheelchair  lessor  in  this  state  pursuant  to  paragraph  b  of this
  subdivision, or by a consumer or motorized 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, motorized  wheelchair
  dealer or motorized 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