NEW YORK USED CAR LEMON LAW DECISION
keywords, used car lemon law, claim, defect, consumer fraud, New York used car lemon law, counsel fees, deception, used car lemon law claim.
Williams v. Planet Motor Car, Inc., 190 Misc.2d 22, 738 N.Y.S.2d 170 (N.Y.City Civ.Ct. 12/14/2001) (post lemon law proceedings)
DECISION AFTER TRIAL
This case raises questions concerning the relationship between New York's Used
Car Lemon Law, Gen. Bus L. §198-b, and Article 2 of the Uniform Commercial Code
- specifically, whether a buyer who is awarded a refund after Lemon Law
arbitration may also seek and receive damages for repair costs, and, if so,
whether and how an arbitrator's award is to be given preclusive effect in a
later judicial action for damages.
Lenworth Williams is suing Planet Motor Car, Inc. for repair costs and other
loss resulting from the purchase of a 1996 model Mercedes from Planet in
September 2000. At the April 23, 2001 trial, Mr. Williams appeared and
testified, as did Planet's Manager, Mandoh Eltopy. The Court reserved decision,
pending final resolution of arbitration proceedings instituted by Mr. Williams
pursuant to the Used Car Lemon Law.
Under the Lemon Law Arbitration Program, a hearing was held on March 31, 2001.
The arbitrator rendered a decision in Mr. Williams' favor on April 16, and the
decision was mailed by the Administrator on May 4. By Order to Show Cause dated
July 31, and returnable August 9, Planet sought to vacate the arbitrator's award
pursuant to CPLR 7511. In an order filed October 18, 2001, Justice Luther V. Dye
denied Planet's motion to vacate the award.
The Used Car Lemon Law was enacted in 1984, and is modeled on the New Car Lemon
Law enacted the previous year, Gen. Bus. L. §198-a. The statute requires that a
used car dealer give a consumer a written warranty that covers parts specified
in the statute. §198-b(b)(1) and (2). The duration of the warranty varies
according to the vehicle's mileage at the time of the sale; in this case,
because the mileage was 78, 673, the warranty was for the earlier of 60 days or
3000 miles. §198-b(b)(1)(b).
The warranty must require that the dealer repair a covered part that has failed,
or reimburse the consumer for the reasonable cost of repairing it. §198-b(b)(2).
Moreover, if the dealer "fails to correct a malfunction or defect as required by
the warranty...which substantially 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
(*2)consumer the full purchase price,...including sales...tax, less a reasonable
allowance for any damage not attributable to normal wear or usage."
§198-b(c)(1).
The consumer is given the option of submitting any dispute under the law to
binding arbitration under a program administered by the attorney general.
§198-b(f)(3).
Such alternate arbitration shall be conducted by a professional arbitrator or
arbitration firm appointed by and under regulations established by the attorney
general. Such 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.
Id. The constitutionality of the similar arbitration provisions in the New
Car Lemon Law, Gen. Bus. L. §198-a(k), was upheld in Motor Vehicle Manufacturers
Association of the United States, Inc. v. State of New York, 75 NY2d 175 [1990];
see also State of New York v. Ford Motor Co., 74 NY2d 495, 502-03 [1989]; Lyeth
v. Chrysler Corp., 929 F2d 891 [2d Cir 1991]; Motor Vehicle Manufacturers
Association of the U.S., Inc. v. Abrams, 899 F2d 1315 [2d Cir 1990].
The Attorney General has promulgated extensive regulations to govern arbitration
proceeding under the two Lemon Laws. 13 NYCRR Chap. VIII Part 300. The
regulations provide for limited discovery, 13 NYCRR §300.9, and representation
by counsel, id. at §300.10. The hearing must "afford each party a full and equal
opportunity to represent his/her case." Id. at §300.12(b) and (c). Time periods
are specified for written submissions, the scheduling of the hearing, and the
Administrator's review. Id. at §§300.7 and 300.16. In the matter of Mr. Williams
and Planet Motor Car, it appears from the arbitrator's award that Planet was
represented by counsel at the hearing. The award summarizes the evidence
introduced by Mr. Williams and by Planet, and states several findings,
including: "The problem is one covered by the used car warranty;" "at least one
problem still exists, ... the vehicle vibrates strongly and increasingly as
vehicle gets warmer;" "The problem(s) which still exist(s) substantially impairs
the value of the car to the consumer;" "The problem(s) is/are not a result of
the consumer's abuse, neglect or unreasonable modification or alteration of the
car." Planet was directed to refund the purchase price of the vehicle.
It is settled that the doctrine of res judicata is applicable to
arbitration awards and may serve to bar the subsequent relitigation of a single
issue or an entire claim. Claim preclusion "refers to the bar against
relitigating a claim or a cause of action... "Issue preclusion" is more limited,
barring only the relitigation of a discrete factual or legal issue...
(*3) In the Matter of Ranni, 58 NY2d 715, 717 [1982].
The question of whether to accord preclusive effect to a prior determination
depends generally on a number of factors that we shall consider, including the
identity of issues, the fullness and fairness of the parties' opportunity to
litigate the issue at bar, the realities of the arbitral proceedings, including
the incentive to proceed to arbitration, and actual scope of the arbitration, as
well as the presence and participation of counsel, the foreseeability of future
litigation, the extent to which a matter was necessarily or implicitly decided
in the arbitral forum (even if not actually litigated), the likelihood of
inconsistent results, and the opportunity to present evidence and cross- examine
witnesses... By its very nature, however, an arbitration hearing is not
conducted with the formalities and records of legal proceedings...
Altamore v. Friedman, 193 AD2d 240, 245-46 [2d Dept 1993].
"The doctrine of election of remedies is related to res judicata, but more by
affinity then by blood." David D. Siegel, New York Practice §218 at 343 [3d Ed].
The doctrine is relevant here, because of the rule at common law that "[a] buyer
cannot...recover both damages and purchase price when a case has been tried on
the basis of recission." Weigel v. Cook, 237 NY 136, 142 [1923]. This general
rule was codified as to the sale of goods in the old Sales of Goods Act, Laws of
1911, Chap. 571, providing the buyer with remedies for breach of warranty "at
his election" of either damages or recission but not both, §150(1) and (2). As
will appear, the doctrine has since been modified by the CPLR and the Uniform
Commercial Code.
Three questions present themselves: may Mr. Williams maintain an action for any
other remedy, having received through arbitration a refund of the purchase
price?; if so, is there a remedy for the repair costs incurred prior to the
return of the vehicle to Planet?; and is Planet precluded from disputing the
breach of warranty that would be the basis for such a remedy?
Although the statute does not explicitly preclude an arbitrator's damages award
for breach of warranty, it is implicit in the provision on "failure to honor
warranty," which speaks only of the refund remedy. §198-b(c)(1). (There is also
provision for a replacement with a comparably priced vehicle, if the consumer
agrees.) Characterizing the New Car Lemon Law as having created a "new cause of
action and a new remedy," the Court of Appeals stated that "[c]onsequential
damages, which are recoverable in a legal action for breach of contract, are not
recoverable under the statute." Motor Vehicle Manufacturers Association of U.S.,
Inc. v. State of New York., supra, at 183, 187; see also Dawson v. General Motor
Corp., 158 AD2d 756, 758 [2d Dept 1990]; Kepenis v. Ro-Zap Enterprises, Inc.,
179 Misc2d 874, 876 [Sup Ct Saratoga Co (*4)1999]. Lemon Law arbitrators are
"limited to awarding one of two remedies," i.e. refund or replacement. Motor
Vehicle Manufacturers Association of U.S., Inc. v. State of New York., supra, at
186.
One limitation to the application of res judicata is that "the court must have
had jurisdiction over the omitted cause of action for the bar to obtain." White
v. State of New York, 161 Misc2d 938, 940-41 [Ct Claims 1994]. Although,
generally, a party is not permitted to seek different relief in separate actions
arising out of the same transaction, see Ordenana v. Weber, 269 AD2d 580, 581
[2d Dept 2000]; Slavin v. Fischer, 160 AD2d 934, 935 [2d Dept 1990]; "[r]es
judicata is inapplicable...where petitioners were statutorily precluded from
obtaining complete relief, i.e. compensatory damages" in the administrative
proceeding. Kondracke v. Blue, 277 AD2d 953, 955 [4th Dept 2000]; see also
Pfeiffer v. Allstate Insurance Co., 136 AD2d 532-34 [2d Dept 1998]. The policy
underlying the doctrine of res judicata and its relatives "is that with respect
to a single matter there should not be more than a single lawsuit, so as to
prevent harassment and vexatious litigation." Id. at 533. That policy is not
threatened when the plaintiff is merely given the opportunity to collect full
compensation. Id. at 533-34.
Perhaps more importantly, the statute itself states that its remedy is not
exclusive. "Nothing in this section shall in any way limit the rights or
remedies which are otherwise available to a consumer under any other law."
§198-b(d)(2). See Armstrong v. Boyce, 135 Misc2d 148, 152-53 [City Ct Watertown
1987].
As to election of remedies, CPLR 3002(e) overrules Weigel v. Cook, supra; see A.
J. Fleres, Inc. v. Larkin Welder & Machine Corp., 36 Misc2d 79, 82 [Sup Ct Kings
Co 1962]; David D. Siegel, Practice Commentaries, C3002:24 at 605. "CPLR 3002(e)
permits the court to make plaintiff completely whole...Plaintiff wants to be rid
of the transaction, restored to status quo, and also recompensed for everything
else lost along the way." Id.
The drafters of Article 2 of the Uniform Commercial Code purposely avoided use
of the word "recission" and adopted instead " revocation of acceptance" in order
to avoid any suggestion of election of remedies. Official Comment 1 to U.C.C.
§2-608. "[T]he buyer is no longer required to elect between revocation of
acceptance and recovery of damages for breach." Id.; see also Abele v. Bayliner
Marine Corp., 11 FSupp2d 955, 961 [ND Ohio 1997].
It seems reasonably clear, therefore, that Mr. Williams may maintain an action
for damages, notwithstanding his arbitration proceeding for a refund of the
purchase price. Now the question is whether there is a non-duplicative damage
remedy for the cost of repairs made to the vehicle because of a breach of
warranty. Courts in other states have found their respective "lemon laws" to
allow a range of damages, including repair costs, in addition to a refund of the
purchase price. See, for example, Pecor v. General Motors Corp., 547 A2d 1364 [Vt
1988]; Maserati Automobiles Inc. v. Caplan, 522 So2d 993 [Fla Ct Apps 1988].
And lower courts in New York have given buyers both a refund and damages for
repairs without noting an issue. Ireland v. J.L.'s Auto Sales, Inc., 156 Misc2d
845, 852 [Just Ct Arcadia 1992], rem. on other grounds, 156 Misc2d 853 [Co Ct
Wayne Co 1993]; Lupa v. Jock's, 131 (*5)Misc2d 536, 540 [City Ct Oswego 1986];
Natale v. Martin Volkswagen, Inc., 92 Misc2d 1046, 1050 [City Ct Utica 1978].
Notwithstanding abandonment of the election of remedies doctrine, the Code
establishes a different remedy regime for goods accepted than for goods
rejected. For goods accepted, where the non-conformity is a breach of warranty,
the measure of damages is usually "the difference...between the value of the
goods accepted and the value they would have had if they had been as warranted."
U.C.C. §2-714(2). "In a proper case any incidental and consequential damages
under [§2-715] may also be recovered." U.C.C. §2-714(3). Repair costs have been
considered compensable as damages for breach with respect to an accepted
automobile. Carbo Industries, Inc. v. Becker Chevrolet, Inc., 112 AD2d 336, 340
[2d Dept 1985], see also Tacoma Athletic Club, Inc. v. Indoor Comfort Systems,
Inc., 902 P2d 175, 181 [Wash 1995].
Where the buyer has rightfully rejected the goods or justifiably revoked
acceptance, the buyer may cancel the contract, may recover so much of the
purchase price as has been paid, and may recover damages based on cover or the
contract price / market price differential. U.C.C. §2-711. Both cover damages
and market-price damages may also be accompanied by any incidental or
consequential damages. U.C.C. §2-712(2) and §2-713(1).
keywords, used car lemon law, claim, defect, consumer fraud, New
York used car lemon law, counsel fees, deception, used car lemon law claim.
Incidental damages "include expenses reasonably incurred in inspection, receipt,
transportation and care and custody of goods rightfully rejected,...and any
other reasonable expenses incidental to the...breach." U.C.C. §2-715(1).
Consequential damages "include...any loss resulting from general or particular
requirements and needs of which the seller at the time of contracting had reason
to know and which could not reasonably be prevented by cover or otherwise."
U.C.C. §2-715(2). Repair costs have been considered compensable as either
incidental damages or consequential damages. Tacoma Athletic Club, Inc. v.
Indoor Comfort Systems, Inc., supra; 1 White and Summers, Uniform Commercial
Code, §10-4 at 572 [4th Ed]; Lanners v. Whitney, 428 P2d 398, 404 [Ore 1967].
They have been awarded when the buyer has revoked acceptance and been given a
refund of the purchase price. Id.
In Vernon v. Potamkin Cadillac Corp., 118 AD2d 698, 700 [2d Dept 1986], the
Second Department awarded the buyer a refund of the purchase price, together
with "expenses in connection with financing the purchase" as incidental damages.
The court refused other damages, however, including rental and storage charges,
because they were not sufficiently tied to the breach, and because the dealer
"was never given the opportunity to repair, or replace, or accept a return of
the vehicle." Id.
Without explanation, the court also rejected an award for loss of use, citing a
Third Department decision in Rayhn v. Martin Nemer Volkswagen Corp., 77 AD2d 394
[3d Dept 1980]. In that case, the court gave the buyer of an automobile "a
complete refund of the purchase price," but "having elected to rescind the
contact the [buyer] may not also seek damages for loss of use of the vehicle."
Id. at 397. In both Rayhn and Vernon, which relied upon Rayhn, it appears that
the loss of use claimed related to a period of time after the buyer revoked
acceptance of the vehicle. The decisions may be considered vestiges of the
election of remedies doctrine, or simply as holding that, under such
circumstances, loss of use does not constitute incidental or (*6)consequential
damages.
In Carbo Industries Inc. v. Becker Chevrolet Inc., supra, a case that involved
an accepted vehicle, the Second Department said that "towing charges and other
charges incurred...in diagnosing the problem with the car could have been found
to constitute compensable incidental damages." As noted, the court allowed the
repair costs as damages for breach of warranty, i.e. "a reasonable cost in
rendering the car usable." Id.
In sum, the Court is not aware of a recent case that has denied a buyer a
recovery for repair costs simply because the buyer obtained a refund of the
purchase price, and there is support for awarding the repair costs. They are
probably best viewed as "reasonable expenses incident to the...breach" that
qualify as incidental damages when demonstrated to be both necessary and
reasonable. See Vernon v. Potamkin Cadillac Corp., supra. When the repairs are
unsuccessful, the costs are similar to diagnostic costs. See Carbo Industries
Inc. v. Becker Chevrolet Inc., supra. When the repairs are successful, they have
conferred a benefit upon the repurchasing seller. In neither situation are they
duplicative of a refund of the purchase price.
Having determined that Mr. Williams may have a claim for his repair costs, in
addition to a refund of the purchase price, Mr. Williams must still establish
that he is entitled to them. The Used Car Lemon Law does not explicitly provide
for judicial enforcement or remedy for breach of its mandated warranty. There
are provisions, however, that envision court action, providing that "[i]n an
brought to enforce the provisions of this article, the court may award
reasonable attorney's fees to the prevailing plaintiff," §198-b(f)(5), and for a
four-year limitations period for "[a]ny action brought pursuant this article,"
§198-b(f)(6). See also Kaltz v. Stein,133 Misc2d 258, 260 [Dist Ct Suff Co
1986](awarding plaintiff repair costs for breach of Used Car Lemon Law
warranty). Having failed to provide other direction, the Legislature must have
intended that the warranty be enforced, and its breach remedied, in the manner
of written warranties under the Uniform Commercial Code. At the same time, the
Code should be applied in Lemon Law warranty cases so as to give effect to the
particular policy concerns and goals of the Law, which include "provid[ing]
consumers with greater protection than that afforded by...express limited
warranties." Matter of Hynson v. American Motors Sales Corp., 164 AD2d 41, 45
[2d Dept 1990].
keywords, used car lemon law, claim, defect, consumer fraud, New
York used car lemon law, counsel fees, deception, used car lemon law claim.
It is obviously no coincidence that the standard for determining a refund under
the Lemon Law and the standard for permitting revocation of acceptance under the
Code are the same. Thus, under the Lemon Law, the dealer is required to accept
return of the car only for a "malfunction or defect...which substantially
impairs the value of the used motor vehicle to the consumer." §198-b(c)(1).
Under the Code, the buyer may revoke acceptance of a unit "whose non-conformity
substantially impairs its value to him." U.C.C. § 2-608(1).
But there are significant differences as well between the Lemon Law and
revocation of acceptance under the Code. Whereas the buyer bears the burden of
proving a substantial impairment of value under the Code, the dealer bears the
burden of negating substantial impairment as an affirmative defense under the
Lemon Law. §198-b(c)(1)(a); Jandreau v. LaVigne, 170 AD2d 861, 862 [3d Dept
1991]. Under the Code, there are additional requirements (*7)for revocation of
acceptance, including explanation for the buyer's acceptance and a time limit on
revocation. U.C.C. §2-608(1)(a), (b) and (2). The Lemon Law, on the other hand,
eases the consumer's burden with presumptions based upon the number of attempts
at repair and the amount of time the vehicle is out of service. §198-b(c)(2).
In the interest of the policy concerns and goals of the Lemon Law, as well as
other "basic policy considerations, notably the question of fairness, the
finalization of disputes, the conservation of judicial resources, and the goals
of uniformity," Altamore v. Friedman, supra, an arbitrator's decision on a
consumer's claim for refund of the purchase price should preclude further
litigation of the breach of warranty and revocation issues under the Code. And
so, where, as here, the consumer has been awarded a refund of the purchase price
after Lemon Law arbitration, the right to revoke acceptance under U.C.C. §2-608
for non-conformity with a warranty should be deemed established in a subsequent
action for a Code remedy, e.g. incidental or consequential damages.
All of the considerations that the Second Department outlined in Altamore v.
Friedman, supra, in deciding whether or not to accord preclusive effect to a
prior determination appear to weigh in favor of giving the Lemon Law
arbitrator's determination preclusive effect: the identity of the issues,
particularly substantial impairment of value, the final and fair opportunity to
litigate the issues before the arbitrator; the availability of counsel; the
incentive to litigate, given the refund remedy; the likelihood of inconsistent
results. The same considerations warrant giving preclusive effect as well to an
arbitrator's finding against the consumer, but it is not necessary here to
explore how that might be reflected in subsequent litigation between the
parties.
At the trial, Planet Motor Car asserted two grounds for rejecting Mr. Williams'
claim for repair costs, but both were resolved against Planet in the arbitration
proceeding. Planet asserted that it only warranted the motor, axle and
transmission of Mr. Williams' car, and, indeed, it appears that Planet did not
in fact give Mr. Williams the written warranty mandated by the Lemon Law.
However, the statute is quite clear that, "if a dealer fails to give the written
warranty required by this article, the dealer nevertheless shall be deemed to
have given said warranty as a matter of law." §198-b(d)(1). And the arbitrator
determined that there was breach of that warranty.
Planet also maintained that Mr. Williams could not prevail on his claim because,
although he paid for the vehicle, he was not the record owner. According to
Planet, and confirmed by the arbitrator's summary of the evidence at the
hearing, this issue was raised in the arbitration. It also appears to have been
the basis for Planet's motion to vacate the arbitrator's decision. Both the
arbitrator and Justice Dye rejected the argument, and no different result is
called for here.
Mr. Williams established his costs for diagnostic services, repairs and parts in
the total amount of $2,393.96, with proof sufficient for that purpose in the
Small Claims Part. C.C.A. §1804. He testified that these costs were incurred in
attempts to cure the same malfunctions that were the basis for his Lemon Law
claim, but he did not make a showing that specific "covered parts" were
involved. See §198-b(b)(2). The arbitrator's findings that there were "3 or more
repair attempts for the same problem," and that "[t]he problem is one covered by
the used car warranty," (*8)cannot, without more, be considered determinative of
Mr. Williams' right to reimbursement for those specific repair costs. The
finding of breach of warranty for the identified "problem" (i.e. vibration) is
entitled to preclusive effect, but the repair costs must be tied to the
"problem."
Moreover, the vehicle was also covered by a "warranty of serviceability" under
Vehicle and Traffic Law §417 that the vehicle "is in condition and repair to
render, under normal use, satisfactory and adequate service upon the public
highway at the time of delivery." Ritchie v, Empire Ford Sales, Inc., NYLJ Nov.
7, 1986, at 25 [Civ Ct Yonkers]; Barilla v. Gunn Buick-Cadillac-GMC, Inc., 139
Misc2d 496, 499-503 [City Ct Oswego 1988]. The scope of this warranty is not
determined by specific parts, but by performance. Natale v. Martin Volkswagen,
Inc., supra, at 1050. "A prima facie showing of a defect raises a presumption
that it existed at the time of delivery." Ritchie v, Empire Ford Sales, Inc.,
supra. Mr. Williams testified that the vibration was a problem beginning the day
after delivery, and the arbitrator experienced the vibration four months later
during a test drive that was permitted by the regulations. 13 NYCRR §300 (12)f).
The totality of the evidence supports a conclusion that the Lemon Law warranty
and the Vehicle and Traffic Law "warranty" were breached. The repair costs paid
to a facility to which Mr. Williams was referred by Planet when he reported the
problem, and the diagnostic and repair costs paid to a Mercedes dealer, totaling
$1,991.10, are determined to be damages resulting from breach of the warranties.
Mr. Williams also seeks compensation for loss of use of the vehicle and for the
time he lost from work in attempting to have the car repaired. As noted, there
is a real question as to whether loss of use is compensable, but, in any event,
Mr. Williams presented no evidence to support an award of damages. Roundtree v.
Singh, 143 AD2d 995, 995 [2d Dept 1998]. The lost time for repairs is not
compensable.
Interest on a judgment for breach of contract is to be awarded from the
"earliest ascertainable date that the cause of action existed." CPLR 5001(b).
Under the Code, a cause of action for breach of warranty accrues at the earliest
"when tender of delivery is made." U.C.C. §2-725(2).
Judgment for claimant for $1,991.10, with interest from September 23, 2000, plus
disbursements.
Law Offices of Howard
A. Gutman,
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keywords, used car lemon law, claim, defect, consumer fraud, New York used car
lemon law, counsel fees, deception, used car lemon law claim.