Bill Text: NY A10424 | 2017-2018 | General Assembly | Introduced


Bill Title: Places requirements on honoring warranties of fire vehicles and ambulances; establishes the new emergency vehicle lemon law bill of rights; regulates arbitration proceedings.

Spectrum: Moderate Partisan Bill (Democrat 68-11)

Status: (Introduced) 2018-06-20 - substituted by s8251 [A10424 Detail]

Download: New_York-2017-A10424-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          10424
                   IN ASSEMBLY
                                     April 20, 2018
                                       ___________
        Introduced  by M. of A. WALLACE -- read once and referred to the Commit-
          tee on Local Governments
        AN ACT to amend the general municipal law and the  vehicle  and  traffic
          law, in relation to warranties of fire vehicles and ambulances
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. The general municipal  law  is  amended  by  adding  a  new
     2  section 109-d to read as follows:
     3    § 109-d. Emergency vehicle warranties. 1. Definitions. As used in this
     4  section:
     5    a.  "Ambulance" means a motor vehicle designed, appropriately equipped
     6  and used for the purpose of: (i) transporting emergency medical  person-
     7  nel  and equipment to sick or injured persons; and (ii) carrying sick or
     8  injured persons by a person or entity  registered  or  certified  as  an
     9  ambulance  service  by  the  department of health, that was subject to a
    10  manufacturer's express warranty at the time of original delivery and was
    11  purchased or transferred in this state within either the first  eighteen
    12  thousand  miles  of  operation  or  two  years from the date of original
    13  delivery, whichever is earlier.
    14    b. "Fire  vehicle"  means  a  motor  vehicle  specially  designed  and
    15  equipped for firefighting purposes which was subject to a manufacturer's
    16  express  warranty  at the time of original delivery and was purchased or
    17  transferred in this state within either the first two thousand hours  of
    18  service  or  two  years from the date of original delivery, whichever is
    19  earlier.
    20    c. "Municipal consumer" means a political subdivision or fire  company
    21  which  is the purchaser or transferee of a fire vehicle or ambulance and
    22  any other person entitled by the terms of the warranty  to  enforce  the
    23  obligations of such warranty.
    24    d.  "Warranty" means the written warranty, so labeled, of the manufac-
    25  turer and any other warranties set forth in the  manufacturer's  or  its
    26  agent's  bid or offer submitted where competitive bidding is required by
    27  statute, rule, regulation or local law, including but not limited to,  a
    28  bid  or offer submitted pursuant to the competitive bidding requirements
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD15268-01-8

        A. 10424                            2
     1  of section one hundred three of this article, and including  any  condi-
     2  tions precedent to the enforcement of obligations under such warranties.
     3    2.  Warranties.  a. (i) If a new fire vehicle which is sold and regis-
     4  tered in this state does not conform to all  express  warranties  during
     5  the  first  two  thousand  hours  of service or during the period of two
     6  years following the date of original delivery of the fire vehicle to the
     7  municipal consumer, whichever is the earlier date, or if a new ambulance
     8  which is sold and registered in this  state  does  not  conform  to  all
     9  express warranties during the first eighteen thousand miles of operation
    10  or  during the period of two years following the date of original deliv-
    11  ery of the ambulance to the municipal consumer, whichever is the earlier
    12  date, the municipal consumer shall during such period report the noncon-
    13  formity, defect or condition to  the  manufacturer,  its  agent  or  its
    14  authorized dealer. If the notification is received by the manufacturer's
    15  agent  or authorized dealer, the agent or dealer shall within seven days
    16  forward written notice thereof to the manufacturer  by  certified  mail,
    17  return  receipt  requested, and shall include in such notice a statement
    18  indicating whether  or  not  such  repairs  have  been  undertaken.  The
    19  manufacturer,  its  agent  or  its  authorized dealer shall correct said
    20  nonconformity, defect or condition at no charge to the municipal consum-
    21  er, notwithstanding the fact that such repairs are made after the  expi-
    22  ration of such period of operation or such two year period.
    23    (ii)  If a manufacturer's agent or authorized dealer refuses to under-
    24  take repairs within seven days of receipt of the notice by  a  municipal
    25  consumer  of  a  nonconformity, defect or condition pursuant to subpara-
    26  graph (i) of this paragraph,  the  municipal  consumer  may  immediately
    27  forward  written notice of such refusal to the manufacturer by certified
    28  mail, return receipt requested. The manufacturer or its authorized agent
    29  shall have twenty days  from  receipt  of  such  notice  of  refusal  to
    30  commence such repairs. If within such twenty day period, the manufactur-
    31  er  or its authorized agent fails to commence such repairs, the manufac-
    32  turer, at the option of the municipal consumer, shall replace  the  fire
    33  vehicle  or ambulance with a comparable vehicle, or accept return of the
    34  fire vehicle or ambulance from the municipal consumer and refund to  the
    35  municipal  consumer  the full purchase price plus fees and charges. Such
    36  fees and charges shall include but not be limited to all  license  fees,
    37  registration  fees  and any similar governmental charges, less a reason-
    38  able allowance for  any  damage  not  attributable  to  normal  wear  or
    39  improvements.
    40    b. (i) If, within the period specified in paragraph a of this subdivi-
    41  sion, the manufacturer or its agents or authorized dealers are unable to
    42  repair  or  correct  any defect or condition which substantially impairs
    43  the value of the fire vehicle or ambulance  to  the  municipal  consumer
    44  after  a  reasonable number of attempts, the manufacturer, at the option
    45  of the municipal consumer, shall replace the fire vehicle  or  ambulance
    46  with a comparable vehicle, or accept return of the fire vehicle or ambu-
    47  lance  from  the municipal consumer and refund to the municipal consumer
    48  the full purchase price plus fees and charges.  Any  return  of  a  fire
    49  vehicle  or  ambulance  may, at the option of the municipal consumer, be
    50  made to the dealer or other authorized agent  of  the  manufacturer  who
    51  sold  such fire vehicle or ambulance to the municipal consumer or to the
    52  dealer or other authorized agent who attempted to repair or correct  the
    53  defect  or  condition  which  necessitated  the  return and shall not be
    54  subject to any further shipping charges. Such  fees  and  charges  shall
    55  include  but  not  be limited to all license fees, registration fees and

        A. 10424                            3
     1  any similar governmental charges, less a reasonable  allowance  for  any
     2  damage not attributable to normal wear or improvements.
     3    (ii)  A  manufacturer  which accepts return of a fire vehicle or ambu-
     4  lance because such vehicle does not conform to its warranty shall notify
     5  the commissioner of motor vehicles that the fire  vehicle  or  ambulance
     6  was  returned  to the manufacturer for nonconformity to its warranty and
     7  shall disclose, in  accordance  with  the  provisions  of  section  four
     8  hundred  seventeen-c  of  the  vehicle  and  traffic law prior to resale
     9  either at wholesale or retail, that it was previously  returned  to  the
    10  manufacturer for nonconformity to its warranty. Refunds shall be made to
    11  the  municipal  consumer  and lienholder, if any, as their interests may
    12  appear on the records of ownership kept by the department of motor vehi-
    13  cles.
    14    (iii) It shall be an affirmative  defense  to  any  claim  under  this
    15  section that:
    16    (A)  the  nonconformity,  defect  or  condition does not substantially
    17  impair the value of the fire vehicle or ambulance; or
    18    (B) the nonconformity, defect or condition is  the  result  of  abuse,
    19  neglect,  or unauthorized modifications or alterations of the fire vehi-
    20  cle or ambulance.
    21    c. It shall be presumed that a reasonable number of attempts have been
    22  undertaken to conform a fire vehicle  or  ambulance  to  the  applicable
    23  express warranties, if:
    24    (i)  the  same  nonconformity, defect or condition has been subject to
    25  repair four or more times by the manufacturer or its agents  or  author-
    26  ized  dealers  within  the first two thousand hours of service or during
    27  the period of two years following the date of original delivery  of  the
    28  fire vehicle to a municipal consumer, whichever is the earlier date, or,
    29  within  the  first  eighteen  thousand  miles of operation or during the
    30  period of two years following the date of original delivery of the ambu-
    31  lance to a municipal consumer, whichever is the earlier date,  but  such
    32  nonconformity, defect or condition continues to exist; or
    33    (ii)  the  fire  vehicle  or  ambulance is out of service by reason of
    34  repair of one or more nonconformities, defects or conditions for a cumu-
    35  lative total of thirty or  more  calendar  days  during  either  period,
    36  whichever is the earlier date.
    37    d.  The  term of an express warranty, the two year warranty period and
    38  the thirty day out of service period  shall  be  extended  by  any  time
    39  during which repair services are not available to the municipal consumer
    40  because  of  a  war,  invasion  or  strike, fire, flood or other natural
    41  disaster.
    42    3. Informal dispute settlement. a. (i) If a  manufacturer  has  estab-
    43  lished  an  informal  dispute settlement mechanism, such mechanism shall
    44  comply in all respects with the provisions of  this  section;  provided,
    45  however, that the provisions of subdivision two of this section concern-
    46  ing refunds or replacement shall not apply to any municipal consumer who
    47  has  not first resorted to such mechanism. In the event that an arbitra-
    48  tor in such an informal dispute mechanism awards a refund or replacement
    49  fire vehicle or ambulance, he or she shall not reduce the  award  to  an
    50  amount  less than the full purchase price or a fire vehicle or ambulance
    51  of equal value, plus all fees and charges  except  to  the  extent  such
    52  reductions  are  specifically  permitted  under  subdivision two of this
    53  section.
    54    (ii) A manufacturer shall have up to thirty days  from  the  date  the
    55  municipal  consumer notifies the manufacturer of their acceptance of the
    56  arbitrator's decision to comply with the terms of that decision. Failure

        A. 10424                            4
     1  to comply with the thirty day limitation shall also entitle the  munici-
     2  pal  consumer  to recover a fee of twenty-five dollars for each business
     3  day of noncompliance up to five hundred dollars. Provided, however, that
     4  nothing  contained  in  this  paragraph  shall impose any liability on a
     5  manufacturer where a delay beyond the thirty day period is  attributable
     6  to  a municipal consumer who has requested a replacement fire vehicle or
     7  ambulance built to order or with options that are not comparable to  the
     8  vehicle  being  replaced  or otherwise made compliance impossible within
     9  said period.  In no event shall a municipal consumer who has resorted to
    10  an informal dispute settlement mechanism be precluded from  seeking  the
    11  rights or remedies available by law.
    12    b. (i) Each municipal consumer shall have the option of submitting any
    13  dispute  arising  under  this  section  upon the payment of a prescribed
    14  filing fee to an alternate arbitration mechanism established pursuant to
    15  regulations promulgated hereunder by the New York state attorney  gener-
    16  al. Upon application of the municipal consumer and payment of the filing
    17  fee, all manufacturers shall submit to such alternate arbitration.  Such
    18  alternate arbitration shall be conducted by a professional arbitrator or
    19  arbitration  firm  appointed by and under regulations established by the
    20  New York  state  attorney  general.  Such  mechanism  shall  insure  the
    21  personal  objectivity  of its arbitrators and the right of each party to
    22  present its case, to be in attendance during any  presentation  made  by
    23  the  other  party and to rebut or refute such presentation. In all other
    24  respects, such alternate arbitration  mechanism  shall  be  governed  by
    25  article  seventy-five  of  the  civil  practice law and rules; provided,
    26  however, that  notwithstanding  paragraph  (i)  of  subdivision  (a)  of
    27  section  seventy-five  hundred  two of the civil practice law and rules,
    28  special proceedings brought before a  court  pursuant  to  such  article
    29  seventy-five  in  relation  to an arbitration hereunder shall be brought
    30  only in the county where the municipal consumer is located or where  the
    31  arbitration was held or is pending.
    32    (ii)  A  court  may  award  reasonable  attorney's fees to a municipal
    33  consumer who prevails in any judicial action or proceeding  arising  out
    34  of  an  arbitration proceeding held pursuant to subparagraph (i) of this
    35  paragraph. In the event a municipal consumer is required to  retain  the
    36  services of an attorney to enforce collection of an award granted pursu-
    37  ant  to  this  section,  the  court  may assess against the manufacturer
    38  reasonable attorney's fees for services rendered to  enforce  collection
    39  of said award.
    40    c.  (i)  Each  manufacturer  shall  require that each informal dispute
    41  settlement mechanism used by it provide, at a minimum, the following:
    42    (A) that the arbitrators participating in such mechanism  are  trained
    43  in  arbitration  and  familiar with the provisions of this section, that
    44  the arbitrators and municipal  consumers  who  request  arbitration  are
    45  provided with a written copy of the provisions of this section, together
    46  with  the  notice  set forth below entitled "NEW EMERGENCY VEHICLE LEMON
    47  LAW BILL OF RIGHTS", and that municipal  consumers,  upon  request,  are
    48  given an opportunity to make an oral presentation to the arbitrator;
    49    (B)  that  the rights and procedures used in the mechanism comply with
    50  federal regulations promulgated by the federal trade commission relating
    51  to informal dispute settlement mechanisms; and
    52    (C) that the remedies set forth under paragraph c of  subdivision  two
    53  of  this  section  are awarded if, after a reasonable number of attempts
    54  have been undertaken under  paragraph  d  of  subdivision  two  of  this
    55  section  to conform the vehicle to the express warranties, the defect or
    56  nonconformity still exists.

        A. 10424                            5
     1    (ii) The following notice shall be provided to municipal consumers and
     2  arbitrators and shall be printed in  conspicuous  ten  point  bold  face
     3  type:
     4                NEW EMERGENCY VEHICLE LEMON LAW BILL OF RIGHTS
     5    (1)  IN  ADDITION  TO ANY WARRANTIES OFFERED BY THE MANUFACTURER, YOUR
     6  NEW FIRE VEHICLE, IF PURCHASED AND REGISTERED  IN  NEW  YORK  STATE,  IS
     7  WARRANTED  AGAINST ALL MATERIAL DEFECTS FOR THE FIRST TWO THOUSAND HOURS
     8  OF OPERATION OR TWO YEARS, WHICHEVER COMES FIRST AND YOUR NEW AMBULANCE,
     9  IF PURCHASED AND REGISTERED IN NEW YORK STATE, IS WARRANTED AGAINST  ALL
    10  MATERIAL  DEFECTS  FOR  THE  FIRST EIGHTEEN THOUSAND MILES OR TWO YEARS,
    11  WHICHEVER COMES FIRST.
    12    (2) YOU MUST REPORT ANY PROBLEMS TO THE  MANUFACTURER,  ITS  AGENT  OR
    13  AUTHORIZED DEALER.
    14    (3) UPON NOTIFICATION, THE PROBLEM MUST BE CORRECTED FREE OF CHARGE.
    15    (4)  IF  THE  SAME  PROBLEM  CANNOT  BE  REPAIRED  AFTER  FOUR OR MORE
    16  ATTEMPTS; OR IF YOUR FIRE VEHICLE OR AMBULANCE  IS  OUT  OF  SERVICE  TO
    17  REPAIR  A PROBLEM FOR A TOTAL OF THIRTY DAYS DURING THE WARRANTY PERIOD;
    18  OR IF THE MANUFACTURER OR ITS AGENT  REFUSES  TO  REPAIR  A  SUBSTANTIAL
    19  DEFECT  OR CONDITION WITHIN TWENTY DAYS OF RECEIPT OF NOTICE SENT BY YOU
    20  TO THE MANUFACTURER BY CERTIFIED MAIL, RETURN  RECEIPT  REQUESTED;  THEN
    21  YOU  MAY  BE  ENTITLED TO EITHER A COMPARABLE FIRE VEHICLE OR AMBULANCE,
    22  OR, A REFUND OF YOUR PURCHASE PRICE PLUS LICENSE AND REGISTRATION FEES.
    23    (5) A MANUFACTURER MAY DENY LIABILITY IF  THE  PROBLEM  IS  CAUSED  BY
    24  ABUSE,  NEGLECT,  OR  UNAUTHORIZED  MODIFICATIONS OF THE FIRE VEHICLE OR
    25  AMBULANCE.
    26    (6) A MANUFACTURER MAY REFUSE TO EXCHANGE A COMPARABLE FIRE VEHICLE OR
    27  AMBULANCE, OR, REFUND YOUR  PURCHASE  PRICE  IF  THE  PROBLEM  DOES  NOT
    28  SUBSTANTIALLY IMPAIR THE VALUE OF YOUR FIRE VEHICLE OR AMBULANCE.
    29    (7)  IF  A  MANUFACTURER HAS ESTABLISHED AN ARBITRATION PROCEDURE, THE
    30  MANUFACTURER MAY REFUSE TO EXCHANGE A COMPARABLE FIRE VEHICLE  OR  AMBU-
    31  LANCE,  OR,  REFUND  YOUR  PURCHASE  PRICE UNTIL YOU FIRST RESORT TO THE
    32  PROCEDURE.
    33    (8) IF THE MANUFACTURER DOES NOT HAVE AN  ARBITRATION  PROCEDURE,  YOU
    34  MAY  RESORT  TO ANY REMEDY BY LAW AND MAY BE ENTITLED TO YOUR ATTORNEY'S
    35  FEES IF YOU PREVAIL.
    36    (9) NO CONTRACT OR AGREEMENT CAN VOID ANY OF THESE RIGHTS.
    37    (10) AS AN ALTERNATIVE TO THE  ARBITRATION  PROCEDURE  MADE  AVAILABLE
    38  THROUGH THE MANUFACTURER, YOU MAY INSTEAD CHOOSE TO SUBMIT YOUR CLAIM TO
    39  AN  INDEPENDENT  ARBITRATOR,  APPROVED  BY THE ATTORNEY GENERAL. YOU MAY
    40  HAVE TO PAY A FEE FOR SUCH AN ARBITRATION. CONTACT THE  ATTORNEY  GENER-
    41  AL'S OFFICE TO FIND OUT HOW TO ARRANGE FOR INDEPENDENT ARBITRATION.
    42    (iii)  All  informal  dispute settlement mechanisms shall maintain the
    43  following records:
    44    (A) the number of purchase price refunds and fire  vehicle  and  ambu-
    45  lance replacements requested, the number of each awarded in arbitration,
    46  the  amount  of  each  award and the number of awards that were complied
    47  with in a timely manner;
    48    (B) the number of awards where additional repairs or a warranty exten-
    49  sion was the most prominent remedy, the amount or value of  each  award,
    50  and  the  number  of  such  awards  that  were complied with in a timely
    51  manner;
    52    (C) the number and total dollar amount of awards where  some  form  of
    53  reimbursement for expenses or compensation for losses was the most prom-
    54  inent  remedy,  the amount or value of each award and the number of such
    55  awards that were complied with in a timely manner; and

        A. 10424                            6
     1    (D) the average number of days from the date of a municipal consumer's
     2  initial request to arbitrate until the date of  the  final  arbitrator's
     3  decision  and  the  average  number  of  days from the date of the final
     4  arbitrator's decision to the date on which performance was satisfactori-
     5  ly carried out.
     6    d.  Any  action  brought  pursuant  to this section shall be commenced
     7  within four years of the date of original delivery of the  fire  vehicle
     8  or ambulance to the municipal consumer.
     9    4.  Notice  of  rights.  At  the time of purchase of a fire vehicle or
    10  ambulance, the  manufacturer,  its  agent  or  authorized  dealer  shall
    11  provide  to  the  municipal  consumer a notice, printed in not less than
    12  eight point bold face type, entitled "New Emergency  Vehicle  Lemon  Law
    13  Bill  of  Rights".  The  text of such notice shall be identical with the
    14  notice required by paragraph c of subdivision three of this section.
    15    5. Void agreements. Any agreement entered into by a municipal consumer
    16  for the purchase of a new fire vehicle or ambulance which waives, limits
    17  or disclaims the rights set forth in  this  section  shall  be  void  as
    18  contrary  to  public  policy.  Said  rights  shall inure to a subsequent
    19  transferee of such fire vehicle  or  ambulance.  Any  provision  of  any
    20  agreement entered into by a municipal consumer for the purchase of a new
    21  fire  vehicle or ambulance which includes as an additional cost for such
    22  vehicle an expense identified as being for the purpose of affording such
    23  municipal consumer their rights under this section,  shall  be  void  as
    24  contrary to public policy.
    25    6.  Preservation  of  rights. Nothing in this section shall in any way
    26  limit the rights or remedies which are otherwise available to a  munici-
    27  pal consumer under any other law.
    28    §  2.  The  vehicle and traffic law is amended by adding a new section
    29  417-c to read as follows:
    30    § 417-c. Mandatory disclosures by sellers prior to resale. 1.  Certif-
    31  icate of prior nonconformity by manufacturer or dealer. Upon the sale or
    32  transfer of title by a manufacturer, its agent  or  any  dealer  of  any
    33  second-hand fire vehicle or ambulance, previously returned to a manufac-
    34  turer  or dealer for nonconformity to its warranty or after final deter-
    35  mination, adjudication or settlement pursuant  to  section  one  hundred
    36  nine-d  of  the  general municipal law, the manufacturer or dealer shall
    37  execute and deliver to the buyer an instrument  in  writing  in  a  form
    38  prescribed  by  the commissioner setting forth the following information
    39  printed in conspicuous in ten point, all capital type:  "IMPORTANT: THIS
    40  VEHICLE WAS RETURNED TO THE MANUFACTURER OR DEALER BECAUSE  IT  DID  NOT
    41  CONFORM TO ITS WARRANTY AND THE DEFECT OR CONDITION WAS NOT FIXED WITHIN
    42  A REASONABLE TIME AS PROVIDED BY NEW YORK LAW." Such notice that a vehi-
    43  cle  was  returned  to  the  manufacturer  or  dealer because it did not
    44  conform to its warranty shall also be conspicuously printed on the motor
    45  vehicle's certificate of title.
    46    2. Violation. The failure of a manufacturer or dealer  to  deliver  to
    47  the  buyer the instrument required by this section or the delivery of an
    48  instrument containing false or misleading information shall constitute a
    49  violation of this section.
    50    3. Private remedy. A consumer injured by a violation of  this  section
    51  may  bring  an  action  to  recover damages. Judgment may be entered for
    52  three times the actual damages suffered by a  consumer  or  one  hundred
    53  dollars,  whichever is greater. A court also may award reasonable attor-
    54  neys' fees to a prevailing plaintiff buyer.
    55    4. Action by the attorney general.  a.  Upon  any  violation  of  this
    56  section,  an application may be made by the attorney general in the name

        A. 10424                            7
     1  of the people of the state of New York to  a  court  or  justice  having
     2  jurisdiction to issue an injunction, and upon notice to the defendant of
     3  not  less  than five days, to enjoin and restrain the continuance of the
     4  violation.  If  it  shall  appear  to  the  satisfaction of the court or
     5  justice that the defendant has violated this section, an injunction  may
     6  be issued by the court or justice, enjoining and restraining any further
     7  violation,  without  requiring  proof that any person has, in fact, been
     8  injured or damaged thereby. In any such proceeding, the court may  award
     9  a sum not exceeding two thousand dollars against each defendant, whether
    10  or not costs have been awarded, and direct restitution.
    11    b. Whenever the court shall determine that a violation of this section
    12  has  occurred,  it may impose a civil penalty of not more than one thou-
    13  sand dollars for each violation. In connection with an application  made
    14  under this subdivision, the attorney general is authorized to take proof
    15  and to make a determination of the relevant facts and to issue subpoenas
    16  in accordance with the civil practice law and rules.
    17    §  3. This act shall take effect on the first of January next succeed-
    18  ing the date on which it shall have become a law. Effective immediately,
    19  the attorney general is authorized and directed to  promulgate  any  and
    20  all  rules and regulations necessary to implement the provisions of this
    21  act on or before its effective date.
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