2012 New York Consolidated Laws
PEP - Personal Property
Article 9-A - (330 - 353) MOTOR VEHICLE RETAIL LEASING ACT
343 - Assessment of excess wear and damage to the vehicle.

 
    §  343.  Assessment  of  excess wear and damage to the vehicle. 1. (a)
  Upon the scheduled termination of a retail lease agreement,  the  holder
  shall not charge, receive or collect a charge for excess wear and damage
  to the vehicle which exceeds: (i) the actual cost of repairs, reduced by
  all  discounts,  paid by the holder; or (ii) a true itemized estimate of
  the cost of such repairs by an appraiser licensed  pursuant  to  section
  three  hundred ninety-eight-d of the vehicle and traffic law selected by
  the holder, of the cost of such repairs.
    (b) Upon early termination of a retail  lease  agreement,  the  holder
  shall not charge, receive or collect a charge for excess wear and damage
  to the vehicle which exceeds the actual costs of repairs, reduced by all
  discounts, paid by the holder.
    2. In order for a holder to impose a charge for excess wear and damage
  to  a  vehicle subject to a retail lease agreement, such agreement shall
  contain a clause describing the excess wear and damage  to  the  vehicle
  for  which  the  lessee  may be liable. Such holder shall, not more than
  forty days nor less than twenty days prior to the scheduled  termination
  date,  or,  not  more  than ten business days after the date of an early
  termination of a lease agreement, mail or deliver to the lessee a notice
  advising the lessee of the  following  rights  and  obligations  of  the
  parties, herein granted and imposed:
    (a)  Such  notice  shall include the following statement, as set forth
  herein, at the beginning of the notice in at least ten-point bold type:
            "YOUR LEASE AGREEMENT ALLOWS (HOLDER)  TO  ASSESS  A
            CHARGE  FOR  EXCESS  WEAR AND DAMAGE TO THE VEHICLE.
            YOU SHOULD OBTAIN YOUR OWN EVIDENCE OF  THE  CURRENT
            CONDITION  OF  THE VEHICLE NOT MORE THAN TWENTY (20)
            DAYS PRIOR TO  THE  SCHEDULED  TERMINATION  OF  YOUR
            LEASE.  YOU  ALSO  WILL  HAVE  THE  RIGHT  TO SUBMIT
            DISPUTES  TO  THE  ALTERNATE  ARBITRATION  MECHANISM
            ESTABLISHED UNDER REGULATIONS PROMULGATED BY THE NEW
            YORK STATE ATTORNEY GENERAL."
    (b)  In  the case of a scheduled termination, of the lessee's right to
  turn the vehicle in with a copy of an itemized appraisal of excess  wear
  and  damage  to  the  vehicle  prepared  by  an appraiser licensed under
  section three hundred ninety-eight-d of the  vehicle  and  traffic  law,
  selected  by the lessee and conducted not more than twenty days prior to
  the scheduled termination date;
    (c) Of the right of the holder to, within thirty days after  the  date
  on  which  the  vehicle comes into the actual physical possession of the
  holder, obtain a written itemized appraisal of excessive wear and damage
  to the vehicle prepared by an appraiser  licensed  under  section  three
  hundred  ninety-eight-d  of  the vehicle and traffic law selected by the
  holder;
    (d) That if the lessee had not previously obtained  and  submitted  to
  the  holder  a  written itemized appraisal on the lessee's own behalf in
  accordance with paragraph (b) of this subdivision, the lessee will  have
  the  greater  of  ten  business  days  after  the lessee has received or
  fourteen  business  days  to  do  so  after  the  holder  has  sent,  in
  conformance with subdivision three of this section, an itemized bill for
  excess  wear and damage and a copy of the itemized appraisal prepared on
  behalf of the holder, unless the lessee does  not  dispute  any  of  the
  items  contained  therein. In the case where the holder bases the charge
  for excess wear and damage on the actual cost  of  repairs,  the  notice
  shall  also  inform  the lessee that should the lessee fail to obtain an
  itemized written appraisal, he  or  she  is  entitled  to  dispute  only
  whether any items claimed exist and/or are excess wear and damage to the
  vehicle, but not the actual cost of making the repairs;

    (e)  That  if  the  lessee  disputes that any of the items claimed for
  excess wear and damage to the vehicle exist or are excessive in  nature,
  the lessee may submit the dispute within sixty days of the date on which
  the  vehicle  comes into the actual physical possession of the holder to
  the holder's informal dispute settlement procedure, if any, or, upon the
  payment  of  the  prescribed  filing  fee  which  is  refundable  if the
  arbitrator finds in the lessee's favor, to  an  alternative  arbitration
  mechanism  established  under  regulations  promulgated  by the attorney
  general of the state of New York;
    (f) That if there exists a discrepancy between the itemized appraisals
  obtained by the holder and the lessee, if any, the holder  shall  submit
  the  dispute  within  sixty  days of the date on which the vehicle comes
  into the actual physical  possession  of  the  holder  to  the  holder's
  informal  dispute  settlement  procedure,  if  any,  unless  the  lessee
  exercises the option granted by paragraph (b)  of  subdivision  five  of
  this  section;  provided,  however,  that  in  the  event the holder has
  complied with the provisions of  this  subdivision,  a  lessee  who  has
  failed  to obtain an itemized appraisal of the excessive wear and damage
  to the vehicle in accordance with either paragraph (b) or  (c)  of  this
  subdivision  may  dispute  only the existence of any item or whether the
  wear is excessive in nature, but may not  dispute  the  actual  cost  of
  repairs.
    3.  (a)  Itemized  bill.  (i)  In  the event that the holder wishes to
  impose a charge for excess wear and damage to the  vehicle,  the  holder
  shall  send  by  registered  mail  or  hand-deliver to the lessee a bill
  containing an itemized list of the estimated or actual cost of repairing
  or replacing each item as to which an excess wear and damage  charge  is
  claimed and specifying the address to which any response must be mailed.
  The  bill  shall be mailed or hand-delivered to the lessee within thirty
  days after  the  date  on  which  the  vehicle  comes  into  the  actual
  possession of the holder.
    (ii)  The itemized bill shall include the following statements printed
  in at least ten-point type: "You  are  being  asked  to  pay  an  amount
  claimed  for  excess  wear  and  damage  to  the vehicle. If you wish to
  contest this amount, you must  obtain  an  itemized  appraisal  from  an
  appraiser  licensed  by the New York State Department of Motor Vehicles,
  and mail or deliver a copy of such appraisal to  (NAME  AND  ADDRESS  OF
  HOLDER)  within  the  greater  of  fourteen business days after (NAME OF
  HOLDER) has sent, or ten business days of receipt of this bill and (NAME
  OF HOLDER'S) itemized appraisal. If you fail to do so, you will  forfeit
  your right to contest in arbitration any actual repair costs incurred by
  the  (HOLDER)  for  excess  wear and damage; however, you do not forfeit
  your right to contest the existence of any item or whether the  wear  is
  excessive in nature."
    (iii)  The  itemized  bill shall also notify lessees of their material
  rights and obligations for dispute resolution in arbitration.
    (b) Itemized appraisal. (i) A holder who imposes a charge  for  excess
  wear  and  damage  to  the  vehicle  shall  send  by  registered mail or
  hand-deliver, within thirty days after the date  on  which  the  vehicle
  comes  into actual physical possession of the holder, a written itemized
  appraisal prepared by an appraiser licensed under section three  hundred
  ninety-eight-d  of  the  vehicle and traffic law. The appraisal shall be
  dated, signed by the holder or its agent, and identify by type each item
  of excess wear and damage.
    (ii) The following notice shall be included at the  beginning  of  the
  itemized appraisal prepared on behalf of the holder and furnished to the
  lessee,

            "ALL   ITEMS  OF  DAMAGE  FOR  WHICH  A  CHARGE  FOR
            EXCESSIVE WEAR OR DAMAGE  WILL  BE  CLAIMED  BY  THE
            HOLDER  MUST  BE  NOTED  IN  THIS  APPRAISAL. IF YOU
            DISPUTE THE EXISTENCE  OR  NATURE  OF  ANY  ITEM  OF
            DAMAGE IDENTIFIED IN THIS NOTICE, YOU MAY SUBMIT THE
            DISPUTE   TO  THE  ALTERNATE  ARBITRATION  MECHANISM
            ESTABLISHED UNDER REGULATIONS PROMULGATED BY THE NEW
            YORK STATE ATTORNEY GENERAL."
    4. (a) The itemized bill and appraisal required by  subdivision  three
  of   this   section  may  be  combined  into  a  single  document.  Mere
  acknowledgement by the  lessee  of  receipt  of  an  itemized  bill,  an
  appraisal, or a combination of the two shall not operate as an admission
  of the existence, nature or amount of any of the items therein.
    (b)  (i)  The holder shall grant the lessee access to the vehicle at a
  reasonable time and place in order for the lessee to obtain an  itemized
  appraisal  on the lessee's own behalf. The holder shall not be required,
  however, to deliver the  vehicle  to,  or  produce  the  vehicle  at,  a
  destination designated by the lessee for such purpose.
    (ii)  A  holder  may  not  fail to provide, either intentionally or by
  actions or omissions, reasonable access to the vehicle by  the  licensed
  appraiser  chosen  by the lessee within the period during which a lessee
  must obtain and submit an appraisal. If the holder fails to  so  provide
  reasonable  access  to  the  vehicle, the holder shall be deemed to have
  forfeited its contractual right to charge, receive or collect any charge
  for excessive wear and damage to the vehicle from the lessee.
    (c) A lessor or holder of a retail lease agreement shall not report an
  unsatisfied claim for excess wear  and  damage  to  a  credit  reporting
  agency  as a derogatory item of information until: (i) the expiration of
  the time granted under article seventy-five of the  civil  practice  law
  and  rules  for  the  filing  of  a  petition  to  vacate  or  modify an
  arbitrator's award; (ii) the  issue  has  been  a  subject  of  a  final
  judgment; or (iii) where the holder and the lessee execute a settlement,
  thirty  days  after the date a payment is due under the settlement if no
  payment has been made.
    5. (a) Arbitration and enforcement. If a  holder  has  established  or
  participates  in  an  informal  dispute  settlement  procedure  which is
  consistent in all respects with the provisions  of  part  seven  hundred
  three  of title sixteen of the code of federal regulations, any dispute,
  disparity or conflict  between  any  appraisal  report  prepared  by  an
  appraiser  licensed  by the state department of motor vehicles on behalf
  of the holder and one prepared on behalf of the lessee shall be  decided
  by   such  informal  dispute  settlement  procedure.  Holders  utilizing
  informal dispute settlement  procedures  pursuant  to  this  subdivision
  shall insure that the arbitrators participating in such informal dispute
  settlement procedures are familiar with the provisions of this section.
    (b) Upon the payment of a prescribed filing fee, a consumer shall have
  the  option  of  submitting any dispute arising under this section to an
  alternate arbitration mechanism established pursuant to  regulations  to
  be  promulgated  hereunder  by the attorney general. Upon application of
  the consumer and payment of the filing fee, the holder 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  attorney  general.  Such
  alternate arbitration mechanism shall ensure 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. Holder or lessee shall have thirty days
  from the date of mailing of a copy of the arbitrator's decision to  such
  holder or lessee to comply with the terms of such decision.
    (c)  In  no event shall any person who has participated in an informal
  dispute settlement procedure be precluded from  seeking  the  rights  or
  remedies available to such person under applicable law.
    (d)  Nothing  in  this  section  shall  be deemed to prohibit: (i) the
  holder and the lessee from agreeing upon termination of the agreement to
  the payment by the lessee, in satisfaction  of  his  or  her  obligation
  under the provisions of the agreement, of an amount which the lessor and
  the  lessee agree is a reasonable figure to compensate for damage to the
  vehicle; (ii) the holder  from  retaining  any  portion  of  a  security
  deposit  in  satisfaction  of  amounts  owed  to the holder that are not
  attributable to excess wear and tear; or (iii) to restrict or  otherwise
  regulate the assessment of charges for excess mileage.