§ 670*2 — Repair, replacement and refund under new wheelchair warranties

* § 670. Repair, replacement and refund under new wheelchair\nwarranties. 1. As used in this section:\n a. "Collateral costs" means expenses incurred by a consumer in\nconnection with the repair of a nonconformity, including the costs of\nobtaining an alternative wheelchair or other assistive device for\nmobility.\n b. "Consumer" means any of the following:\n (1) The purchaser of a wheelchair, if the wheelchair was purchased\nfrom a wheelchair dealer or manufacturer for purposes other than resale.\n (2) A person to whom the wheelchair is transferred for purposes other\nthan resale, if the transfer occurs before the expiration of an express\nwarranty applicable to the wheelchair.\n (3) A person who may enforce the warranty.\n (4) A person who leases a wheelchair from a wheelchair lessor under a\nwritten lease.\n (5) State governmental agencies, subscribers to article forty-three of\nthe insurance law, corporations, subscribers of organizations organized\nunder article forty-four of the public health law, and programs governed\nby title eleven of article five of the social services law.\n c. "Demonstrator" means a wheelchair used primarily for the purpose of\ndemonstration to the public.\n d. "Early termination cost" means any expense or obligation that a\nwheelchair lessor incurs as a result of both the termination of a\nwritten lease before the termination date set forth in that lease and\nthe return of a wheelchair to a manufacturer pursuant to subparagraph\nthree of paragraph b of subdivision three of this section. "Early\ntermination cost" includes a penalty for prepayment under a finance\narrangement.\n e. "Early termination savings" means any expense or obligation that a\nwheelchair lessor avoids as a result of both the termination of a\nwritten lease before that termination date set forth in that lease and\nthe return of a wheelchair to a manufacturer pursuant to subparagraph\nthree of paragraph b of subdivision three of this section. "Early\ntermination savings" includes an interest charge that the wheelchair\nlessor would have paid to finance the wheelchair or, if the wheelchair\nlessor does not finance the wheelchair, the difference between the total\namount for which the lease obligates the consumer during the period of\nthe lease term remaining after the early termination and the present\nvalue of that amount at the date of the early termination.\n f. "Manufacturer" means a person who manufactures or assembles\nwheelchairs and agents of that person, including an importer, a\ndistributor, factory branch, distributor branch and any warrantors of\nthe manufacturer's wheelchair, but does not include a wheelchair dealer.\n g. "Wheelchair" means any wheelchair, including a demonstrator, that a\nconsumer purchases or accepts transfer of in this state.\n h. "Wheelchair dealer" means a person who is in the business of\nselling wheelchairs.\n i. "Wheelchair lessor" means a person who leases a wheelchair to a\nconsumer, or who holds the lessor's rights, under a written lease.\n j. "Nonconformity" means a condition or defect that substantially\nimpairs the use, value or safety of a wheelchair, and that is covered by\nan express warranty applicable to the wheelchair or to a component of\nthe wheelchair, but does not include a condition or defect that is the\nresult of abuse, neglect or unauthorized modification or alteration of\nthe wheelchair by a consumer.\n k. "Reasonable attempt to repair" means that, within the term of an\nexpress warranty applicable to a new wheelchair, any nonconformity\nwithin the warranty is either subject to repair by the manufacturer,\nwheelchair lessor or any of the manufacturer's authorized wheelchair\ndealers, for at least three times and a nonconformity continues, or that\nthe wheelchair is out of service for an aggregate of at least thirty\ndays because of warranty nonconformity, after having been returned to\nthe manufacturer, wheelchair lessor or any of the manufacturer's\nauthorized wheelchair dealers for repair.\n 2. a. A manufacturer who sells a wheelchair to a consumer, either\ndirectly or through a wheelchair dealer, shall furnish the consumer with\nan express warranty for the wheelchair. The duration of the express\nwarranty shall be not less than one year after first delivery of the\nwheelchair to the consumer. In the absence of an express warranty from\nthe manufacturer, the manufacturer shall be deemed to have expressly\nwarranted to the consumer of a wheelchair that, for a period of one year\nfrom the date of first delivery to the consumer, the wheelchair will be\nfree from any condition or defect which substantially impairs the value\nof the wheelchair to the consumer.\n b. The following notice shall be provided in conspicuous type and in\nsubstantially the following form by the manufacturer, wheelchair dealer\nor wheelchair lessor to each consumer at the time of purchase:\n WHEELCHAIR LEMON LAW BILL OF RIGHTS\n (1) By law, the manufacturer shall be deemed to have provided to you,\nthe purchaser of a wheelchair, a one year warranty which starts on the\ndate of first delivery to you. This warranty provides that the\nwheelchair will be free from any condition or defect that substantially\nimpairs its use, value or safety.\n (2) To ensure you receive the benefits of this warranty, you must\nreport any problems and make the wheelchair available to the\nmanufacturer, authorized wheelchair dealer or wheelchair lessor for\nrepair before one year after first delivery.\n (3) Upon notification and the wheelchair's being made available to the\nmanufacturer or its authorized dealer, the problem must be corrected\nfree of charge.\n (4) During the warranty period, if any condition or defect cannot be\nrepaired after three attempts or if your wheelchair is out of service\nfor a total of thirty days for repairs to any condition or defect which\nsubstantially impairs the use, value or safety of the wheelchair, you\nare entitled to either a comparable new wheelchair or a refund or, if\nyou are leasing a wheelchair, replacement of your wheelchair with a\ncomparable new wheelchair or a refund of the full purchase price plus\nany finance charge and collateral costs, minus a reasonable allowance\nfor use.\n (5) The warranty provided to you by law does not cover conditions or\ndefects that result from abuse, neglect or unauthorized modification or\nalteration of the wheelchair and relieves the manufacturer of liability\nfor repairs in these instances.\n (6) A manufacturer may refuse to replace a wheelchair or refund your\npurchase price if a problem does not substantially impair the use, value\nor safety of your wheelchair.\n (7) You may submit any dispute with a manufacturer, dealer or lessor\narising from a dispute over the repair of your wheelchair to an\nalternate arbitration mechanism established pursuant to rules\npromulgated by the New York state attorney general.\n (8) No contract or agreement for the sale or lease of a wheelchair can\nvoid any of these rights.\n 3. a. If a new wheelchair does not conform to an applicable express\nwarranty and the consumer reports the nonconformity to the manufacturer,\nthe wheelchair lessor or any of the manufacturer's authorized wheelchair\ndealers and makes the wheelchair available for repair before one year\nafter first delivery of the wheelchair to a consumer, the nonconformity\nshall be repaired at no charge to the consumer.\n b. (1) If, after a reasonable attempt to repair, the nonconformity is\nnot repaired, the manufacturer shall carry out the requirement set forth\nunder either subparagraph two or three of this paragraph, whichever is\nappropriate.\n (2) At the direction of a consumer described under subparagraph one,\ntwo or three of paragraph b of subdivision one of this section, do one\nof the following:\n (a) Accept return of the wheelchair and replace the wheelchair with a\ncomparable new wheelchair and refund any collateral costs.\n (b) Accept return of the wheelchair and refund to the consumer and to\nany holder of a perfected security interest in the consumer's\nwheelchair, as their interest may appear, the full purchase price plus\nany finance charge amount paid by the consumer at the point of sale and\ncollateral costs, less a reasonable allowance for use. A reasonable\nallowance for use may not exceed the amount obtained by multiplying the\nfull purchase price of the wheelchair by a fraction, the denominator of\nwhich is one thousand eight hundred twenty-five and the numerator of\nwhich is the number of days that the wheelchair was driven before the\nconsumer first reported the nonconformity to the wheelchair dealer.\n (3) (a) With respect to a consumer described under subparagraph four\nof paragraph b of subdivision one of this section, accept return of the\nwheelchair, refund to the wheelchair lessor and to any holder of a\nperfected security interest in the wheelchair, as their interest may\nappear, the current value of the written lease and refund to the\nconsumer the amount that the consumer paid under the written lease plus\nany collateral costs, less a reasonable allowance for use.\n (b) The current value of the written lease equals the total amount for\nwhich that lease obligates the consumer during the period of the lease\nremaining after its early termination, plus the wheelchair dealer's\nearly termination costs and the value of the wheelchair at the lease\nexpiration date if the lease sets forth that value, less the wheelchair\nlessor's early termination savings.\n (c) A reasonable allowance for use may not exceed the amount obtained\nby multiplying the total amount for which the written lease obligates\nthe consumer by a fraction, the denominator of which is one thousand\neight hundred twenty-five and the numerator of which is the number of\ndays that the consumer drove the wheelchair before first reporting the\nnonconformity to the manufacturer, wheelchair lessor or wheelchair\ndealer.\n c. To receive a comparable new wheelchair or a refund due under\nsubparagraph one or two of paragraph b of this subdivision, a consumer\ndescribed under subparagraph one, two or three of paragraph b of\nsubdivision one of this section, shall offer to the manufacturer of the\nwheelchair having the nonconformity to transfer possession of that\nwheelchair to that manufacturer. No later than twenty days after that\noffer, the manufacturer shall provide the consumer with the comparable\nnew wheelchair or refund. When the manufacturer provides the new\nwheelchair or refund, the consumer shall return the wheelchair having\nthe nonconformity to the manufacturer, along with any endorsements\nnecessary to transfer real possession to the manufacturer.\n d. (1) To receive a refund due under subparagraph three of paragraph b\nof this subdivision, a consumer described under subparagraph four of\nparagraph b of subdivision one of this section shall offer to return the\nwheelchair having the nonconformity to its manufacturer. No later than\nthirty days after that offer, the manufacturer shall provide the refund\nto the consumer. When the manufacturer provides the refund, the consumer\nshall return to the manufacturer the wheelchair having the\nnonconformity.\n (2) To receive a refund due under subparagraph three of paragraph b of\nthis subdivision, a wheelchair lessor shall offer to transfer possession\nof the wheelchair having the nonconformity to its manufacturer. No later\nthan thirty days after that offer, the manufacturer shall provide the\nrefund to the wheelchair lessor. When the manufacturer provides the\nrefund, the wheelchair lessor shall provide to the manufacturer any\nendorsements necessary to transfer legal possession to the manufacturer.\n (3) No person may enforce the lease against the consumer after the\nconsumer receives a refund due under subparagraph three of paragraph b\nof this subdivision.\n e. No wheelchair returned by a consumer or wheelchair lessor in this\nstate pursuant to paragraph b of this subdivision, or by a consumer or\nwheelchair lessor in another state under a similar law of that state,\nmay be sold or leased again in this state unless full disclosure of the\nreasons for return is made to any prospective buyer or lessee.\n 4. a. Each consumer shall have the option of submitting any dispute\narising under this section upon the payment of a prescribed filing fee\nto an alternate arbitration mechanism established pursuant to\nregulations promulgated hereunder by the New York state attorney\ngeneral. Upon application of the consumer and payment of the filing fee,\nall manufacturers shall submit to such alternate arbitration.\n b. Such alternate arbitration shall be conducted by a professional\narbitrator or arbitration firm appointed by and under regulations\nestablished by the New York state attorney general. Such mechanism shall\ninsure the personal objectivity of its arbitrators and the right of each\nparty to present its case, to be in attendance during any presentation\nmade by the other party and to rebut or refute such presentation. In all\nother respects, such alternate arbitration mechanism shall be governed\nby article seventy-five of the civil practice law and rules. Where\napplicable, any action required of a manufacturer, wheelchair dealer or\nwheelchair lessor to comply with a final decision of such arbitrator\nshall be completed within forty days of the date of such decision.\n 5. This section does not limit rights or remedies available to a\nconsumer under any other law.\n 6. Any waiver by a consumer of rights under this section is void.\n 7. In addition to pursuing any other remedy, a consumer may bring an\naction to recover for any damages caused by a violation of this section.\nThe court shall award a consumer who prevails in such an action twice\nthe amount of any pecuniary loss, together with costs, disbursements and\nreasonable attorney fees, and any equitable relief that the court\ndetermines is appropriate.\n * NB There are 2 § 670's\n