Bill Text: NY A03530 | 2011-2012 | General Assembly | Introduced
Bill Title: Provides procedure for satisfying warranties on consumer products including repairs, refunds and dispute settlement procedures; provides for suit for breach of warranty with recovery of attorneys' fees by successful consumer and enforcement by attorney general by injunction; excludes certain motor vehicles which are subject to other provisions of law.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Introduced - Dead) 2012-09-04 - enacting clause stricken [A03530 Detail]
Download: New_York-2011-A03530-Introduced.html
S T A T E O F N E W Y O R K
________________________________________________________________________
3530
2011-2012 Regular Sessions
I N A S S E M B L Y
January 25, 2011
___________
Introduced by M. of A. P. RIVERA, V. LOPEZ, COLTON -- Multi-Sponsored by
-- M. of A. DINOWITZ, GOTTFRIED, WEINSTEIN -- read once and referred
to the Committee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to warranties on
consumer products
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The general business law is amended by adding a new section
2 399-ff to read as follows:
3 S 399-FF. WARRANTIES ON CONSUMER PRODUCTS. 1. AS USED IN THIS SECTION:
4 (A) "PRODUCT" MEANS ANY GOODS SOLD OR LEASED WHERE THE BUYER OR LESSEE
5 IS A NATURAL PERSON AND THE GOODS ARE PURCHASED OR LEASED PRIMARILY FOR
6 PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, BUT SHALL NOT INCLUDE ANY NEW OR
7 USED MOTOR VEHICLE SUBJECT TO THE PROVISIONS OF SECTION ONE HUNDRED
8 NINETY-EIGHT-A OR ONE HUNDRED NINETY-EIGHT-B OF THIS CHAPTER.
9 (B) "LEASE" MEANS A LEASE OF GOODS WHICH IS FOR A TERM EXCEEDING FOUR
10 MONTHS.
11 2. IF A NEW PRODUCT DOES NOT CONFORM TO ALL APPLICABLE EXPRESS WARRAN-
12 TIES, AND THE CONSUMER REPORTS THE NONCONFORMITY TO THE SELLER, MANUFAC-
13 TURER OR ITS AUTHORIZED DEALER DURING THE TERM OF SUCH EXPRESS WARRAN-
14 TIES, THE SELLER, MANUFACTURER OR ITS AUTHORIZED DEALER SHALL MAKE SUCH
15 REPAIRS AS ARE NECESSARY TO CONFORM THE PRODUCT TO SUCH EXPRESS WARRAN-
16 TIES, NOTWITHSTANDING THE FACT THAT SUCH REPAIRS ARE MADE AFTER THE
17 EXPIRATION OF SUCH TERM.
18 3. IF THE SELLER, MANUFACTURER OR AUTHORIZED DEALERS ARE UNABLE TO
19 CONFORM THE PRODUCT TO ANY APPLICABLE EXPRESS WARRANTY BY REPAIRING OR
20 CORRECTING ANY DEFECT OR CONDITION WHICH SUBSTANTIALLY IMPAIRS THE USE
21 AND VALUE OF THE PRODUCT TO THE CONSUMER AFTER A REASONABLE NUMBER OF
22 ATTEMPTS, THE SELLER AT THE OPTION OF THE CONSUMER, SHALL REPLACE THE
23 PRODUCT WITH A NEW PRODUCT OR ACCEPT RETURN OF THE PRODUCT FROM THE
24 CONSUMER AND REFUND TO THE CONSUMER THE FULL PURCHASE PRICE INCLUDING
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD00413-01-1
A. 3530 2
1 ALL COLLATERAL CHARGES. REFUNDS SHALL BE MADE TO THE CONSUMER, AND THE
2 LIENHOLDER IF ANY, AS THEIR INTERESTS MAY APPEAR. IT SHALL BE AN AFFIR-
3 MATIVE DEFENSE TO ANY CLAIM UNDER THIS SECTION (A) THAT THE ALLEGED
4 NONCONFORMITY DOES NOT SUBSTANTIALLY IMPAIR SUCH USE AND VALUE OR (B)
5 THAT THE NONCONFORMITY IS THE RESULT OF ABUSE, NEGLECT OR UNAUTHORIZED
6 MODIFICATIONS OR ALTERATIONS OF A PRODUCT BY A CONSUMER.
7 4. IT SHALL BE PRESUMED THAT A REASONABLE NUMBER OF ATTEMPTS HAVE BEEN
8 UNDERTAKEN TO CONFORM A PRODUCT TO THE APPLICABLE EXPRESS WARRANTIES, IF
9 (A) THE SAME NONCONFORMITY HAS BEEN SUBJECT TO REPAIR FOUR OR MORE TIMES
10 BY THE SELLER, MANUFACTURER OR AUTHORIZED DEALERS WITHIN THE EXPRESS
11 WARRANTY TERM, BUT SUCH NONCONFORMITY CONTINUES TO EXIST OR (B) THE
12 PRODUCT IS OUT OF SERVICE BY REASON OF REPAIR FOR A CUMULATIVE TOTAL OF
13 THIRTY OR MORE CALENDAR DAYS DURING SUCH TERM. THE TERM OF AN EXPRESS
14 WARRANTY, AND SUCH THIRTY-DAY PERIOD SHALL BE EXTENDED BY ANY PERIOD OF
15 TIME DURING WHICH REPAIR SERVICES ARE NOT AVAILABLE TO THE CONSUMER
16 BECAUSE OF WAR, INVASION, STRIKE, FIRE, FLOOD OR OTHER NATURAL DISASTER.
17 5. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WITH RESPECT TO ANY
18 CONSUMER TRANSACTION INVOLVING THE SALE OR LEASE OF NEW GOODS COSTING
19 MORE THAN TWO HUNDRED FIFTY DOLLARS, NO MANUFACTURER, SELLER OR LESSOR
20 SHALL:
21 (A) EXCLUDE, MODIFY OR OTHERWISE LIMIT ANY IMPLIED WARRANTY OF
22 MERCHANTABILITY, AS DEFINED IN SECTION 2-314 OF THE UNIFORM COMMERCIAL
23 CODE, OR FITNESS FOR A PARTICULAR PURPOSE, AS DEFINED IN SECTION 2-315
24 OF SUCH CODE; OR
25 (B) EXCLUDE, MODIFY OR OTHERWISE LIMIT ANY REMEDY PROVIDED BY LAW,
26 INCLUDING THE MEASURE OF DAMAGES AVAILABLE, FOR A BREACH OF ANY SUCH
27 IMPLIED WARRANTY.
28 6. ANY DISCLAIMER OR LIMITATION IN VIOLATION OF THIS SECTION SHALL BE
29 DEEMED CONTRARY TO PUBLIC POLICY AND SHALL BE UNENFORCEABLE AND VOID.
30 7. NOTWITHSTANDING THE OTHER PROVISIONS OF THIS SECTION, WHERE THE
31 GOODS TO BE SOLD ARE CONSPICUOUSLY IDENTIFIED AS "DAMAGED", "SECONDS",
32 "IRREGULAR", "FLOOR MODELS", "DEMONSTRATORS" OR WORDS TO THAT EFFECT,
33 AND ARE OFFERED FOR SALE AT A REDUCTION FROM THEIR BONA FIDE SELLING
34 PRICE, A MANUFACTURER, SELLER OR LESSOR MAY:
35 (A) SELL THE GOODS "AS IS", WITH NO WARRANTIES EXPRESS OR IMPLIED; OR
36 (B) SELL THE GOODS WITH AN EXPRESS WARRANTY BUT LIMIT THE IMPLIED
37 WARRANTY WITH RESPECT TO THE PARTICULAR IDENTIFIED DEFECT OR DEFECTS.
38 8. THE PURCHASER OF GOODS IN A CONSUMER TRANSACTION, AND ANY SUBSE-
39 QUENT TRANSFEREE, MAY BRING AN ACTION FOR BREACH OF WARRANTY AGAINST THE
40 MANUFACTURER, DISTRIBUTOR, SELLER OR LESSOR OF THE GOODS. LACK OF PRIVI-
41 TY BETWEEN THE CONSUMER AND THE PARTY AGAINST WHOM THE ACTION IS BROUGHT
42 SHALL NOT BE A DEFENSE TO SUCH ACTION.
43 9. IN THE EVENT AN ACTION IS BROUGHT AGAINST A RETAIL SELLER, THAT
44 SELLER MAY IMPLEAD THE DISTRIBUTOR AND/OR MANUFACTURER IN ACCORDANCE
45 WITH THE CIVIL PRACTICE LAW AND RULES, AND THE IMPLEADED PARTY SHALL
46 BEAR SUCH LIABILITY AS THE COURT MAY FIND.
47 10. IF A CONSUMER PREVAILS IN AN ACTION BASED UPON BREACH OF WARRANTY,
48 EXCEPT FOR PERSONAL INJURY ACTIONS, HE OR SHE MAY BE ALLOWED BY THE
49 COURT IN ITS DISCRETION TO RECOVER AS PART OF THE JUDGMENT A SUM EQUAL
50 TO THE AGGREGATE AMOUNT OF COST AND EXPENSES INCLUDING REASONABLE ATTOR-
51 NEYS' FEES.
52 11. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT OR ABRIDGE ANY
53 STATUTORY OR OTHER RIGHT OR REMEDY OF A CONSUMER AT LAW OR IN EQUITY.
54 12. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICA-
55 TION MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF
56 THE STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE
A. 3530 3
1 AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE
2 DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH VIOLATIONS; AND IF
3 IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE
4 DEFENDANT HAS, IN FACT, VIOLATED THIS SECTION, AN INJUNCTION MAY BE
5 ISSUED BY SUCH COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER
6 VIOLATION, WITHOUT REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN
7 INJURED OR DAMAGED THEREBY. IN ANY SUCH PROCEEDING, THE COURT MAY MAKE
8 ALLOWANCES TO THE ATTORNEY GENERAL AS PROVIDED IN PARAGRAPH SIX OF
9 SUBDIVISION (A) OF SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRAC-
10 TICE LAW AND RULES, AND DIRECT RESTITUTION. IN CONNECTION WITH ANY SUCH
11 PROPOSED APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF
12 AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
13 ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
14 13. IF A SELLER HAS ESTABLISHED OR IS A PARTICIPANT IN AN INFORMAL
15 DISPUTE SETTLEMENT PROCEDURE WHICH COMPLIES IN ALL RESPECTS WITH THE
16 PROVISIONS OF PART SEVEN HUNDRED THREE OF TITLE SIXTEEN OF THE CODE OF
17 FEDERAL REGULATIONS THE PROVISIONS OF SUBDIVISION THREE OF THIS SECTION
18 CONCERNING REFUNDS OR REPLACEMENT SHALL NOT APPLY TO ANY CONSUMER WHO
19 HAS NOT FIRST RESORTED TO SUCH PROCEDURE.
20 14. A SELLER, MANUFACTURER OR ITS AUTHORIZED DEALER SHALL CAUSE A
21 NOTICE TO BE GIVEN TO THE ORIGINAL PURCHASER OF A NEW PRODUCT OUTLINING
22 THE PROVISIONS OF THIS SECTION AND THE RIGHTS AND REMEDIES PROVIDED
23 THEREUNDER.
24 S 2. This act shall take effect on the one hundred twentieth day after
25 it shall have become a law, and shall apply to all products sold on or
26 after such date.
