A8250C-2011 Actions

• Jun 8, 2012: print number 8250c
• Jun 8, 2012: amend and recommit to codes
• May 31, 2012: reported referred to codes
• May 25, 2012: print number 8250b
• May 25, 2012: amend (t) and recommit to consumer affairs and protection
• May 10, 2012: print number 8250a
• May 10, 2012: amend and recommit to consumer affairs and protection
• Jan 4, 2012: referred to consumer affairs and protection
• Jun 9, 2011: referred to consumer affairs and protection

A8250C-2011 Text

 S T A T E   O F   N E W   Y O R K
 
 8250--C
 2011-2012 Regular Sessions
 I N  ASSEMBLY
 June 9, 2011
 
 Introduced  by  M.  of A. ABBATE, P. RIVERA -- read once and referred to
 the Committee on Consumer Affairs and Protection -- recommitted to the
 Committee on Consumer Affairs and Protection in accordance with Assem
 bly Rule 3, sec. 2 --  committee  discharged,  bill  amended,  ordered
 reprinted  as  amended  and  recommitted  to  said  committee -- again
 reported from said committee with  amendments,  ordered  reprinted  as
 amended  and recommitted to said committee -- reported and referred to
 the Committee on Codes -- committee discharged, bill amended,  ordered
 reprinted as amended and recommitted to said committee
 AN  ACT  to  amend  the  general  business law and the executive law, in
 relation to the refund to a consumer of money from a used car  dealer
 ship for failing to correct a malfunction or defect
 

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM
 BLY, DO ENACT AS FOLLOWS:

 

Section 1. Paragraph 1 of subdivision c of section 198-b of the gener
 al business law, as amended by chapter 444  of  the  laws  of  1989,  is
 amended and a new paragraph 5 is added to read as follows:

 1. If the dealer or his agent fails to correct a malfunction or defect
 as required by the warranty specified in this section which substantial
 ly  impairs  the value of the used motor vehicle to the consumer after a
 reasonable period of time, the dealer shall accept return  of  the  used
 motor  vehicle  from  the  consumer  and refund to the consumer the full
 purchase price, or in the case of a lease  contract  all  payments  made
 under  the  contract,  including  sales or compensating use tax, less AN
 AMOUNT EQUAL TO A MILEAGE CREDIT ALLOWANCE AS CALCULATED PURSUANT TO THE
 METHODS SET FORTH IN PARAGRAPH FIVE OF THIS SUBDIVISION, FOR  EACH  MILE
 IN EXCESS OF THE WARRANTY MILEAGE APPLICABLE TO THE VEHICLE CONTAINED IN
 SUBDIVISION B OF THIS SECTION THAT THE VEHICLE HAS BEEN DRIVEN SINCE THE
 DATE OF DELIVERY OF SUCH VEHICLE BY THE DEALER TO THE CONSUMER, AND LESS
 a reasonable allowance for any damage not attributable to normal wear or
 usage,  and  adjustment  for  any modifications which either increase or
 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
 [ ] is old law to be omitted.
 LBD00803-10-2
 
       A. 8250--C                          2
 decrease the market value of the vehicle or of the lease  contract,  and
 in  the  case of a lease contract, shall cancel all further payments due
 from the consumer under the lease contract. In determining the  purchase
 price  to  be refunded or in determining all payments made under a lease
 contract to be refunded, the purchase price, or all payments made  under
 a  lease  contract,  shall be deemed equal to the sum of the actual cash
 difference paid for the used motor vehicle, or for the  lease  contract,
 plus,  if  the dealer elects to not return any vehicles traded-in by the
 consumer, the wholesale value of any such traded-in vehicles  as  listed
 in  the  National Auto Dealers Association Used Car Guide, or such other
 guide as may be specified in regulations promulgated by the commissioner
 of motor vehicles, as adjusted for mileage, improvements, and any  major
 physical  or  mechanical defects in the traded-in vehicle at the time of
 trade-in. The dealer selling or leasing the  used  motor  vehicle  shall
 deliver  to the consumer a written notice including conspicuous language
 indicating that if the consumer should be entitled to a refund  pursuant
 to  this section, the value of any vehicle traded-in by the consumer, if
 the dealer elects to not return it to  the  consumer,  for  purposes  of
 determining the amount of such refund will be determined by reference to
 the National Auto Dealers Association Used Car Guide wholesale value, or
 such  other  guide as may be approved by the commissioner of motor vehi
 cles, as adjusted for mileage, improvements, and any major  physical  or
 mechanical  defects, rather than the value listed in the sales contract.
 Refunds shall be made to the consumer and lienholder, if any,  as  their
 interests  may appear on the records of ownership kept by the department
 of motor vehicles. If the amount to be refunded to the  lienholder  will
 be  insufficient  to  discharge  the  lien,  the dealer shall notify the
 consumer in writing by registered or certified mail  that  the  consumer
 has  thirty  days  to pay the lienholder the amount which, together with
 the amount to be refunded by the dealer, will be sufficient to discharge
 the lien. The notice to the consumer shall contain conspicuous  language
 warning  the  consumer  that failure to pay such funds to the lienholder
 within thirty days will terminate the dealer's obligation to  provide  a
 refund.  If  the consumer fails to make such payment within thirty days,
 the dealer shall have no further  responsibility  to  provide  a  refund
 under  this  section.    Alternatively, the dealer may elect to offer to
 replace the used motor vehicle with a comparably  priced  vehicle,  with
 such adjustment in price as the parties may agree to. The consumer shall
 not  be obligated to accept a replacement vehicle, but may instead elect
 to receive the refund provided under this section. It shall be an affir
 mative defense to any claim under this section that:

 (a) The malfunction or  defect  does  not  substantially  impair  such
 value; or
 (b)  The  malfunction  or  defect  is  the result of abuse, neglect or
 unreasonable modifications or alterations of the used motor vehicle.
 5. THE MILEAGE CREDIT ALLOWANCE AUTHORIZED BY PARAGRAPH  ONE  OF  THIS
 SUBDIVISION  SHALL  BE EQUAL TO THE DEPRECIATION ADJUSTMENT FOR STANDARD
 MILEAGE RATE, AS PUBLISHED IN INTERNAL REVENUE SERVICE PUBLICATION  FOUR
 HUNDRED SIXTY-THREE, APPLICABLE FOR THE SAME TAX YEAR, OR THE YEAR PRIOR
 TO  IT,  WHICHEVER  IS LOWEST, IN WHICH THE CONSUMER PURCHASED OR LEASED
 THE VEHICLE FROM THE DEALER. IN THE EVENT THAT AN ARBITRATOR  RENDERS  A
 DECISION  OR A TRIAL COURT RENDERS A JUDGMENT THAT DIRECTS THE DEALER TO
 ACCEPT RETURN OF THE VEHICLE, THE  CONSUMER  SHALL  HAVE  THE  RIGHT  TO
 RETURN  THE VEHICLE TO THE DEALER'S PLACE OF BUSINESS ON THE FIRST BUSI
 NESS DAY FOLLOWING SUCH DECISION UP TO AND INCLUSIVE  OF  THE  THIRTIETH
 DAY,  AND  WITHIN  NORMAL  BUSINESS  HOURS.    WHETHER OR NOT THE DEALER
 
       A. 8250--C                          3
 ACCEPTS THE VEHICLE, THE DEALER AND CONSUMER SHALL COMPLETE AND  SIGN  A
 MILEAGE  CREDIT  CALCULATION  FORM AS PUBLISHED BY THE ATTORNEY GENERAL,
 WHICH SHALL BE USED TO RECORD THE MILEAGE OF THE VEHICLE AT THE TIME  OF
 DELIVERY  OR  ATTEMPTED  DELIVERY. FOR THE PURPOSES OF THIS SECTION, THE
 MILEAGE CREDIT ALLOWANCE SHALL NOT BE APPLIED  TO  ANY  MILES  THAT  THE
 VEHICLE  HAS BEEN DRIVEN AFTER SUCH FORM IS SIGNED.  IN THE EVENT THAT A
 DEALER REFUSES TO SIGN SUCH FORM, THE EFFECTIVE MILEAGE CREDIT ALLOWANCE
 SHALL BE NO GREATER THAN THE SPECIFIC SUM WHICH WAS  SET  FORTH  IN  THE
 DECISION  OF  AN  ARBITRATOR OR JUDGMENT OF THE TRIAL COURT.  THE DEALER
 SHALL PROVIDE A COPY OF THE COMPLETED  FORM,  WHICH  SHALL  CONTAIN  THE
 SIGNATURE  OF  THE DEALER AND CONSUMER ATTESTING TO THE ODOMETER READING
 OF THE MOTOR VEHICLE, TO: THE ARBITRATOR  OR  COURT  THAT  RENDERED  THE
 DECISION OR JUDGMENT; AND, AT NO CHARGE, THE CONSUMER.
 

S  2. The opening paragraph of paragraph 1 of subdivision f of section
 198-b of the general business law, as separately amended by chapters 444
 and 609 of the laws of 1989, is amended to read as follows:

 If a dealer has established or participates  in  an  informal  dispute
 settlement  procedure which complies in all respects with the provisions
 of part seven hundred three of title sixteen  of  the  code  of  federal
 regulations  the  provisions  of  this  article  concerning  refunds  or
 replacement shall not apply to any consumer who has not  first  resorted
 to  such procedure. Dealers utilizing informal dispute settlement proce
 dures pursuant to this subdivision shall insure that arbitrators partic
 ipating in such informal dispute settlement procedures are familiar with
 the provisions of this section and  shall  provide  to  arbitrators  and
 consumers  who seek arbitration a copy of the provisions of this section
 AND THE APPLICABLE MILEAGE CREDIT ALLOWANCE RATE AS CALCULATED  PURSUANT
 TO  THE  METHOD  SET  FORTH  IN  PARAGRAPH FIVE OF SUBDIVISION C OF THIS
 SECTION, together with the following notice  in  conspicuous  ten  point
 bold face type:

 

S 3.  Subparagraphs 5 and 6 of paragraph 1 of subdivision f of section
 198-b of the general business law, as separately amended by chapters 444
 and 609 of the laws of 1989, are amended to read as follows:

 5.  If  the  same  problem  cannot  be  repaired  after  three or more
 attempts, you are entitled to return the car and  receive  a  refund  of
 your  purchase  price or of all payments made under your lease contract,
 and of sales tax and fees, minus THE MILEAGE CREDIT ALLOWANCE  FOR  EACH
 MILE  IN  EXCESS  OF  THE  WARRANTY  MILEAGE  APPLICABLE  TO THE VEHICLE
 CONTAINED IN SUBDIVISION B OF THIS SECTION THAT  THE  VEHICLE  HAS  BEEN
 DRIVEN  SINCE  THE DATE OF DELIVERY OF SUCH VEHICLE BY THE DEALER TO THE
 CONSUMER, AND LESS a reasonable allowance for any damage  not  attribut
 able  to  normal  usage or wear, and, in the case of a lease contract, a
 cancellation of all further payments you are otherwise required to  make
 under the lease contract.
 6.  If  your  car is out of service to repair a problem for a total of
 fifteen days or more during the warranty  period  you  are  entitled  to
 return  the  car  and  receive a refund of your purchase price or of all
 payments made under your lease contract, and  of  sales  tax  and  fees,
 minus  THE  MILEAGE  CREDIT  ALLOWANCE  FOR  EACH  MILE IN EXCESS OF THE
 WARRANTY MILEAGE APPLICABLE TO THE VEHICLE CONTAINED IN SUBDIVISION B OF
 THIS SECTION THAT THE VEHICLE HAS BEEN DRIVEN SINCE THE DATE OF DELIVERY
 OF SUCH VEHICLE BY THE DEALER TO THE CONSUMER,  AND  LESS  a  reasonable
 allowance  for any damage not attributable to normal usage or wear, and,
 in the case of a lease contract, a cancellation of all further  payments
 you are otherwise required to make under the lease contract.
 
       A. 8250--C                          4
 

S 4.  Subparagraphs 7, 8, 9, 10 and 11 of paragraph 1 of subdivision f
 of  section  198-b  of  the general business law are renumbered subpara
 graphs 8, 9, 10, 11 and 12 and a new subparagraph 7 is added to read  as
 follows:

 7.  THE  MILEAGE CREDIT ALLOWANCE DESCRIBED IN PARAGRAPHS FIVE AND SIX
 OF THIS SUBDIVISION SHALL BE CALCULATED PURSUANT TO  THE  METHOD  ESTAB
 LISHED  IN PARAGRAPH FIVE OF SUBDIVISION C OF THIS SECTION.  THE MILEAGE
 CREDIT ALLOWANCE SHALL BE  NO  GREATER  THAN  (INSERT  THE  DEPRECIATION
 ADJUSTMENT  FOR  STANDARD MILEAGE RATE, AS PUBLISHED IN INTERNAL REVENUE
 SERVICE PUBLICATION FOUR HUNDRED SIXTY-THREE, APPLICABLE  FOR  THE  SAME
 TAX  YEAR,  OR  THE  YEAR PRIOR TO IT, WHICHEVER IS LOWEST, IN WHICH THE
 CONSUMER PURCHASED OR LEASED THE VEHICLE  FROM  THE  DEALER)  CENTS  PER
 MILE.
 

S  5.  Paragraphs  4, 5 and 6 of subdivision f of section 198-b of the
 general business law are renumbered paragraphs 5, 6  and  7  and  a  new
 paragraph 4 is added to read as follows:

 4.  IN  THE EVENT THAT AN ARBITRATOR OR TRIAL COURT RENDERS A DECISION
 THAT DIRECTS THE DEALER TO ACCEPT RETURN OF THE VEHICLE, THE  ARBITRATOR
 OR  COURT  SHALL,  UPON  RENDERING  SUCH DECISION, PROVIDE THE FOLLOWING
 NOTICE TO THE CONSUMER ON A SEPARATE WRITING  AND  IN  AT  LEAST  TWELVE
 POINT BOLD FONT:

 AS  A  PREVAILING CONSUMER YOU HAVE THE RIGHT TO RETURN THE VEHICLE TO
 THE DEALER'S PLACE OF BUSINESS ON THE FIRST BUSINESS DAY FOLLOWING  THIS
 DECISION  AND  UP  TO  AND INCLUSIVE OF THE THIRTIETH DAY (WITHIN NORMAL
 BUSINESS HOURS). WHETHER OR NOT THE DEALER ACCEPTS THE VEHICLE, YOU  AND
 THE  DEALER  SHALL  COMPLETE AND SIGN A MILEAGE CREDIT CALCULATION FORM.
 YOU ARE NOT RESPONSIBLE FOR ANY MILEAGE ACCRUED WHILE YOU  ARE  LAWFULLY
 USING  THE  VEHICLE  DURING  AN APPEAL THAT A DEALER BRINGS TO VACATE OR
 MODIFY AN ARBITRATOR'S DECISION OR A TRIAL COURT JUDGMENT.
 

S 6.

Section 63 of the executive law is amended by adding a new subdi
 vision 16 to read as follows:

 16. PROMULGATE REGULATIONS PROVIDING FOR THE CREATION AND  PUBLICATION
 OF A MILEAGE CREDIT CALCULATION FORM TO BE USED BY CONSUMERS AND DEALERS
 PURSUANT  TO  SECTION ONE HUNDRED NINETY-EIGHT-B OF THE GENERAL BUSINESS
 LAW. SUCH FORM SHALL BE MADE AVAILABLE TO DEALERS BY THE  DEPARTMENT  ON
 ITS WEBSITE.
 

S  7.  This  act shall take effect on the ninetieth day after it shall
 have become a law; provided, however, that the provisions  of  this  act
 shall  not apply to any contract executed prior to the effective date of
 this act; provided, further, that effective immediately, the  department
 of law shall publish on its website on or before such effective date the
 mileage  credit  calculation  form,  as described in section one of this
 act, that is to be used by consumers and dealers in the manner set forth
 in such section, with such form, including instructions,  necessary  for
 the proper completion of such form by a dealer.

*By contributing or voting you agree to the Terms of Participation and Privacy Policy and verify you are over 13.

Discuss!