CONSUMER LAW 2000 UPDATE
THE CONSUMER’S GUIDE TO SMALL CLAIMS COURT AND HOW TO USE FEDERAL AND NEW YORK STATE CONSUMER PROTECTION STATUTES
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Prior to becoming a Westchester County Court Judge I served for six years as a Judge on the Yonkers City Court, the busiest Court in Westchester County, New York State. My favorite Court was Small Claims Court where I handled nearly 3000 cases and published sixty-three decisions in the New York Law Journal2Those consumer law and tenant law decisions are categorized by subject matter and are available on my web site3 as are many of my over 170 published consumer law articles.
My approach in Small Claims Court was to bring the parties into Court and ask both sides a series of questions helping each to formulate their positions. More often than not consumers had little understanding of the rights and remedies available to them under a host of Federal and New York State consumer protection statutes.
Small Claims Courts
New York State’s Small Claims Courts provide consumers with a cost effective legal forum in which to seek money damages up to $3,000.00. The philosophical genesis of Small Claims Courts was “‘ equal access to justice. ‘“4It was hoped that Judges or arbitrators would be able to expeditiously do “ substantial justice “ without the burden of motion practice, discovery, rigid evidentiary rules and specific pleading requirements. 5There is an expanding body of Small Claims Court law now available to consumers, attorneys, arbitrators and Judges including manuals6, law journals7, articles8, and web sites9.
General Business Law § 349: Deceptive Business Practices
Many small claims arise from defective or misrepresented goods and services. Small Claims Courts provide a cost effective forum and allow consumers to enforce their rights under a variety of consumer protection statutes 10The most popular of New York State’s many consumer protection statutes is General Business Law § 349 [ “ GBL § 349 “ ] which prohibits deceptive and misleading business practices.
GBL § 349 allows consumers to sue for $50.00 or actual damages which may be trebled up to $1,000.00 upon a finding of a “ wil(ful) or know(ing) violat(ion). “11Attorneys fees and costs may be recovered as well. As long as the deceptive business practice has “ a broad impact on consumers at large 12and constitutes “ consumer-oriented conduct “13proving a violation of GBL § 349 is straight forward. As stated in BNI N.Y. v. DeSanto “14 (GBL § 349 ) is a broad, remedial statute... directed towards giving consumers a powerful remedy. The elements of a violation of ( GBL § 349 ) are (1) proof that the practice was deceptive or misleading in a material respect and (2) proof that plaintiff was injured...There is no requirement under ( GBL § 349 ) that plaintiff prove that defendant’s practices and acts were intentional, fraudulent or even reckless. Nor does plaintiff have to prove reliance upon defendant’s deceptive practices “.
Threshold Of Deception
Initially GBL § 349 had a low threshold for a finding of deception, i.e., misleading and deceptive acts directed to “ the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions “ [Guggenheimer v. Ginzburg15 Recently, the Court of Appeals raised the threshold to those misleading and deceptive acts “ likely to mislead a reasonable consumer acting reasonably under the circumstances “ [ Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A16] .
Deceptive Business Practices
GBL § 349 applies to a broad spectrum of goods and services [ Karlin v. IVF America 17 ( GBL 349... “ on (its) face appl(ies) to virtually all economic activity and (its) application has been correspondingly broad...The reach of (this) statute ‘ provides needed authority to cope with the numerous, ever-changing types of false and deceptive business practices which plague consumers in our State ‘” )].
Types Of Goods & Services Covered
The types of goods and services which GBL 349 applies to include the following:
- (1)Life Insurance Policies [ Gaidon v. Guardian Life Insurance Co. & Goshen v. Mutual Life Insurance Co.18( misrepresentations that “ out-of-pocket premium payments ( for life insurance policies ) would vanish within a stated period of time “ )];
- (2)In Vitro Fertilization [ Karlin v. IVF America, Inc. 19( misrepresentations of in vitro fertilization rates of success )];
- (3)Real Estate Sales [ Gutterman v. Romano Real Estate20( misrepresenting that a house with a septic tank was connected to a city sewer system );
- (4) Wedding Singers [ Bridget Griffin-Amiel v. Frank Terris Orchestras 21 ( the bait and switch22 of a “ 40-something crooner “ for the “ 20-something “ Paul Rich “ who promised to deliver a lively mix of pop hits, rhythm-and-blues and disco classics “ ) ];
- (5) Furniture Sales [ Petrello v. Winks Furniture23 ( misrepresenting a sofa as being covered in Ultrasuede HP and protected by a 5 year ); Walker v. Winks Furniture24 ( falsely promising to deliver furniture within one week ); Filpo v. Credit Express Furniture Inc. 25 ( failing to inform Spanish speaking consumers of a three day cancellation period );
- (6 )Professional Networking [P BNI New York Ltd. v. DeSanto26 ( enforcing an unconscionable membership fees promissory note ) ];
- (7) Clothing Sales [Baker v. Burlington Coat Factory 27 ( refusing to refund purchase price in cash for defective and shedding fake fur ) ];
- (8 )Pyramid Schemes [C.T.V. Inc. v. Curlen28 ( selling bogus “ Beat The System Program “ certificates ); Brown v. Hambric29 ( selling misrepresented instant travel agent credentials and educational services ) ];
- (9 )Aupair Services [Oxman v. Amoroso30 ( misrepresenting the qualifications of an abusive aupair to care for handicapped children ) ];
- (10) Exhibitions and Conferences [ Sharknet Inc. v. Telemarketing, NY Inc.31 ( misrepresenting length of and number of persons attending Internet exhibition ) ];
- (11 )Employee Scholarship Programs [ Cambridge v. Telemarketing Concepts, Inc.32 ( refusing to honor agreement to provide scholarship to employee ) ];
- (12) Defective Automobile Ignition Switches [ Ritchie v. Empire Ford Sales, Inc.33 ( dealer liable for damages to used car that burns up 4 ½years after sale) ];
- (13) Automobile Liability Insurance [ Rubinoff v. U.S. Capitol Insurance Co.34 ( automobile insurance company fails to provide timely defense to insured )];
- (14) Defective Brake Shoes [Giarrantano v. Midas Muffler35( Midas Muffler fails to honor brake shoe warranty ) ];
- (15) Travel Services [Meachum v. Outdoor World Corp36 ( misrepresenting availability and quality of vacation campgrounds; Pelegrini v. Landmark Travel Group 37 ( travel agent misrepresents refundability of tour vouchers ) ];
- (16) Apartment Rentals [ Bartolomeo v. Runco and Anilesh v. Williams38 ( renting illegal apartments ); Yochim v. McGrath39 ( renting illegal sublets )];
- (17) Home Inspections [Ricciardi v. Frank d/b/a/ InspectAmerica Enginerring,P.C.40( civil engineer liable for failing to discover wet basement ) ];
- (18 )Door-To-Door Sales [ Rossi v. 21st Century Concepts, Inc.41 ( selling misrepresented and overpriced pots and pans )];
- (19) Educational Services [ Andre v. Pace University42( failing to deliver computer programming course for beginners ); Brown v. Hambric 43( failure to deliver travel agent education program )];
- (20) Internet Marketing [People v. Lipsitz44( failing to deliver purchased magazine subscriptions ) ];
Table Of Other Useful Consumer Protection
In addition to GBL § 349 there are a variety of consumer protection statutes available to resolve small claims arising from common consumer transactions. These include the following;
- (1) Real Property Law § 235-b [ Warranty Of Habitability ];
- (2) Personal Property Law §§ 425-431 [ Door-To-Door Sales ];
- (3) 47 U.S.C. § 227 [ Federal Telephone Consumer Protection Act Of 1991 ];
- (4) General Business Law § 399-p [ Restrictions On Automated Telemarketing Devices ];
- (5) General Business Law § 359-fff [ Pyramid Schemes ];
- (6) Civil Practice Law And Rules § 3015(e)[ Licensing Of Home Improvement Contractors];
- (7) 15 U.S.C. §§ 1601-1665 [ Truth In Lending Act ];
- (8) General Business Law § 201 [ Overcoats Lost At Restaurants ];
- (9) General Business Law § 218-a [ Retail Refund Policies ];
- (10) General Business Law § 350 [ False Advertising ];
- (11) General Business Law § 396-u [ Merchandise Delivery Dates ];
- (12) General Business Law § 617(2)(a) [ New Parts Warranties ];
- (13) General Business Law § 198-a [ New Car Lemon Law ];
- (14) General Business Law § 198-b [ Used Car Lemon Law ];
- (15) U.C.C. §§ 2-314, 2-318 [ Warranty Of Merchantability ];
- (16) Vehicle & Traffic Law § 417 [ Warranty Of Serviceability ];
- (17) General Business Law § 396-p(5) [ New Car Purchase Contract Disclosure Requirements ];
Warranty Of HabitabilityTenants in Spatz v. Axelrod Management 45and coop owners in Seecharin v. Radford Court Apartment Corp.46brought actions for damages done to their apartments by the negligence of landlords, managing agents or others, i.e., water damage from external or internal sources. Such a claim may invoke Real Property Law § 235-b [ “ RPL § 235-b “ ] , a statutory warranty of habitability in every residential lease “ that the premises...are fit for human habitation “. RPL § 235-b “ has provided consumers with a powerful remedy to encourage landlords to maintain apartments in a decent, livable condition “47and may be used affirmatively in a claim for property damage 48or as a defense in a landlord’s action for unpaid rent . 49Recoverable damages may include apartment repairs, loss of personal property and discomfort and disruption. 50
Door-To-Door Sales“ Some manufacturers...favor door-to-door sales ( because ) ...the selling price may be several times greater than...in a more competitive environment (and)...consumers are less defensive...in their own homes and...are, especially, susceptible to high pressure sales tactics “51 Personal Property Law [ “ PPL “ ] §§ 425-431 “‘ afford(s) consumers a ‘ cooling-off’ period to cancel contracts which are entered into as a result of high pressure door-to-door sales tactics’“52 PPL § 428 provides consumers with rescission rights should a salesman fail to complete a Notice Of Cancellation form on the back of the contract. PPL § 428 has been used by consumers in Rossi v. 21st Century Concepts, Inc. 53 [ misrepresented pots and pans costing $200.00 each ],Kozlowski v. Sears54 [ vinyl windows hard to open, did not lock properly and leaked ] and in Filpo v. Credit Express Furniture Inc55[ unauthorized design and fabric color changes and defects in overpriced furniture ]. Rescission is also appropriate if the Notice of Cancellation form is not in Spanish for Spanish speaking consumers. 56A failure to “ comply with the disclosure requirements of PPL 428 regarding cancellation and refund rights “ is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs. 57 In addition PPL 429(3) provides for an award of attorneys fees and costs. 58
It is quite common for consumers to receive unsolicited phone calls at their homes from mortgage lenders, credit card companies and the like. Many of these phone calls originate from automated telephone equipment or automatic dialing-announcing devices, the use of which is regulated by Federal and New York State consumer protection statutes.
On the Federal level the Telephone Consumer Protection Act 59 [ TCPA ] prohibits users of automated telephone equipment “ to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without express consent of the called party “60 The purpose of the TCPA is to provide “ a remedy to consumers who are subjected to telemarketing abuses and ‘ to encourage consumers to sue and obtain monetary awards based on a violation of the statute. ‘ “61 The TCPA may be used by consumers in New York State Courts including Small Claims Court [Kaplan v. Democrat & Chronicle62;Shulman v. Chase Manhattan Bank63 ( TCPA provides a private right of action which may be asserted in New York State Courts )]. Under the TCPA consumers may recover their actual monetary loss for each violation or up to $500.00 in damages, whichever is greater. The Court may treble damages upon a showing that defendant willfully and knowingly violated “64 the Act.
On the State level, General Business Law § 399-p [ “ GBL § 399-p “ ] “ also places restrictions on the use of automatic dialing-announcing devices and placement of consumer calls in telemarketing “65 such as requiring the disclosure of the nature of the call and the name of the person on whose behalf the call is being made. A violation of GBL § 399-p allows recovery of actual damages or $50.00, whichever is greater, including trebling upon a showing of a wilful violation. Consumers aggrieved by telemarketing abuses may sue in Small Claims Court and recover damages under both the TCPA and GBL § 399-p Kaplan v. First City Mortgage64 ( consumer sues telemarketer in Small Claims Court and recovers $500.00 for a violation of TCPA and $50.00 for a violation of GBL § 399-p );
Pyramid Schemes“‘ ( a pyramid scheme ) is one in which a participant pays money...and in return receives (1) the right to sell products, and (2) the right to earn rewards for recruiting other participants into the scheme. ‘”67Pyramid schemes are sham money making schemes which prey upon consumers eager for quick riches. General Business Law § 359-fff [ “ GBL § 359-fff “ ] prohibits “ chain distributor schemes “ or pyramid schemes voiding the contracts upon which they are based. Pyramid schemes were used in Brown v. Hambric68to sell travel agent education programs [ “ There is nothing new ‘ about NU-Concepts. It is an old scheme, simply, repackaged for a new audience of gullible consumers mesmerized by the glamour of travel industry and hungry for free or reduced cost travel services “ ] and in C.T.V., Inc. v. Curlen69to sell bogus “ Beat The System Program “ certificates. A violation of GBL 359-fff is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs70.
Home Improvement ContractorsHomeowners often hire home improvement contractors to repair or improve their homes or property. Home improvement contractors must, at least, be licensed by the Department of Consumer Affairs of New York City, Westchester County, Suffolk County, Rockland County, Putnam County and Nassau County if they are to perform services in those Counties [ New York Civil Practice Law And Rules § 3015(e) [ “ CPLR § 3015(e) “ ] ]. Should the home improvement contractor be unlicenced he will be unable to sue the homeowner for non-payment for services rendered [Routier v. Waldeck71( “ The Home Improvement Business provisions...were enacted to safeguard and protect consumers against fraudulent practices and inferior work by those who would hold themselves out as home improvement contractors “ );Cudahy v. Cohen72( unlicenced home improvement contractor unable to sue homeowner in Small Claims Courts for unpaid bills)].
Home improvement contractors who are unlicenced prior to commencing a lawsuit against a homeowner may not cure this standing defect by obtaining a license prior to a hearing in Court [Chosen v. Syz73( “ unlicenced contractor is barred any recovery for breach of contract or in quantum meruit. This regardless of whether the work performed was satisfactory, whether the failure to obtain the license was willful or, even, whether the homeowner knew of the lack of the license and planned to take advantage of its absence. “74Zandell v. Zerbe 75( home improvement contractor must have a valid license when the work is done and when a lawsuit in commenced against the homeowner )].
Truth In LendingConsumers may sue in Small Claims Court for a violation of the Federal Truth In Lending Act, 15 U.S.C.A. §§ 1601-1665 [ “ TILA “ ] and recover appropriate damages [Community Mutual Savings Bank v. Gillen 76( borrower counterclaims in Small Claims Court for violation of TILA and is awarded rescission of loan commitment with lender and damages of $400.00 )]. “ TILA ( protects consumers ) from the inequities in their negotiating position with respect to credit and loan institutions...( TILA ) requir(es) lenders to provide standard information as to costs of credit including the annual percentage rate, fees and requirements of repayment...( TILA ) is liberally construed in favor of the consumer...The borrower is entitled to rescind the transaction ‘ until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required ...together with a statement containing the material disclosures required... whichever is later...The consumer can opt to rescind for any reasons, or for no reason “77TILA has been held to preempt Personal Property Law provisions governing retail instalment contracts and retail credit agreements [Albank, FSB v. Foland 78].
Lost Overcoats“ For over 100 years consumers have been eating out at restaurants, paying for their meals and on occasion leaving without their simple cloth overcoats...mink coats...mink jackets...racoon coats...Russian sable fur coats...leather coats and, of course, cashmere coats...”79 In DiMarzo v. Terrace View 80restaurant personnel encouraged a patron to remove his overcoat and then refused to respond to a claim after the overcoat disappeared from their coatroom. In response to a consumer claim arising from a lost overcoat the restaurant may seek to limit its liability to $200.00 as provided for in General Business Law § 201 [ “ GBL § 201 “ ]. However, a failure to comply with the strict requirements of GBL § 201 [ “‘ as to property deposited by...patrons in the...checkroom of any...restaurant, the delivery of which is evidenced by a check or receipt therefor and for which no fee or charge is exacted...’”81] allows the consumer to recover actual damages upon proof of a bailment and/or negligence 82
No Cash Refund PoliciesSome stores refuse to refund the consumer’s purchase price in cash upon the return of a product [ “ Merchandise, in New Condition, May be Exchanged Within 7 Days of Purchase for Store Credit...No Cash Refunds or Charge Credits “83 In Baker v. Burlington Coat Factory Warehouse84a clothing retailer refused to refund the consumer’s cash payment when she returned a shedding and defective fake fur two days after purchase. General Business Law § 218-a [ “ GBL § 218-a “ ] permits retailers to enforce a no cash refund policy if there are a sufficient number of signs notifying consumers of “ its refund policy including whether it is ‘ in cash, or as credit or store credit only ‘”85If, however, the product is defective and there has been a breach of the implied warranty of merchantability [ U.C.C. § 2-314 ] then consumers may recover all appropriate damages including the purchase price in cash [ U.C.C. § 2-714 ] 86. In essence, U.C.C. § 2-314 preempts 87 GBL § 218-a [Baker v. Burlington Coat Factory Warehouse88 ( defective shedding fake fur ); Dudzik v. Klein's All Sports89 ( defective baseball bat ) ]. It has been held that a “ failure to inform consumers of their statutory right to a cash or credit card charge refund when clothing is defective and unwearable “ is a violation of GBL 349 which provides for treble damages, attorneys fees and costs.90
False AdvertisingConsumers who rely upon false advertising and purchase defective goods or services may sue for misrepresentation. In addition to common law claims for fraudulent misrepresentation the consumer may assert a violation of General Business Law § 350 [ “ GBL § 350 “ ] [ Card v. Chase Manhattan Bank 91( bank falsely misrepresented that its LifePlus Credit Insurance plan would pay off credit card balances were the user to become unemployed )]. GBL § 350 prohibits false advertising which “ means advertising, including labeling, of a commodity...if such advertising is misleading in a material respect...( covers )....representations made by statement, word, design, device, sound...but also... advertising ( which ) fails to reveal facts material “92. GBL § 350 covers a broad spectrum of misconduct [Karlin v. IVF America93 ( “ ( this statute ) on ( its ) face appl(ies) to virtually all economic activity and ( its ) application has been correspondingly broad “ )]. Proof of a violation of GBL 350 is simple, i.e., “ the mere falsity of the advertising content is sufficient as a basis for the false advertising charge “ [People v. Lipsitz94 ( magazine salesman violated GBL § 350; “ ( the ) ( defendant’s ) business practice is generally ‘ no magazine, no service, no refunds “ although exactly the contrary as promised “ ].
Furniture Delivery Dates“ In order to induce a sale furniture and appliance store salesman often misrepresent the quality, origin, price, terms of payment and delivery date of ordered merchandise “95 In Walker v. Winks Furniture96a salesman promised delivery of new furniture within one week and then refused to return the consumer’s purchase price when she canceled two weeks later unless she paid a 20% cancellation penalty. GBL § 396-u protects consumers from unscrupulous salesmen who promise that merchandise will be delivered by specific date when, in fact, it is not. A violation of GBL § 396-u [ failing to disclose an estimated delivery date in writing when the order is taken [ GBL § 396-u(2) ], failing to advise of a new delivery date and giving the consumer the opportunity to cancel [ GBL § 396-u(2)(b) ], failing to honor the consumer’s election to cancel without imposing a cancellation penalty [ GBL § 396-u(s)(c) ], failing to make a full refund within two weeks of a demand without imposing a cancellation penalty [ GBL § 396-u(2)(d) ]] allows the consumer to rescind the purchase contract without incurring a cancellation penalty 97. A violation of GBL 396-u is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs 98In addition, GBL 396-u(7) provides for a trebling of damages upon a showing of a wilful violation of the statute 99.
Automotive Parts Warranties
“ The extended warranty and new parts warranty business generates extraordinary profits for the retailers of cars, trucks and automotive parts and for repair shops. It has been estimated that no more than 20% of the people who buy warranties ever use them... Of the 20% that actually try to use their warranties... ( some ) soon discover that the real costs can easily exceed the initial cost of the warranty certificate “100. In Giarratano v. Midas Muffler101, Midas would not honor its brake shoe warranty unless the consumer agreed to pay for additional repairs found necessary after a required inspection of the brake system. General Business Law § 617(2)(a) [ “ GBL § 617(2)(a) “ ] protects consumers who purchase new parts or new parts’ warranties from breakage or a failure to honor the terms and conditions of a warranty [ “ If a part does not conform to the warranty...the initial seller shall make repairs as are necessary to correct the nonconformity “102, ]. A violation of GBL 617(2)(a) is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs 103
Cars, Cars, CarsThere are a variety of consumer protection statutes available to purchasers and lessees of automobiles, new and used. A comprehensive review of five of these statutes [ GBL § 198-b 104( Used Car Lemon Law ), express warranty 105 , implied warranty of merchantability 106 ( U.C.C. §§ 2-314, 2-318 ), Vehicle and Traffic Law [ V&T ] § 417, strict products liability 107 ] appears in Ritchie v. Empire Ford Sales, Inc.108a case involving a used 1990 Ford Escort which burned up 4 ½ years after being purchased because of a defective ignition switch. A comprehensive review of two other statutes [ GBL § 198-a ( New Car Lemon Law ) and GBL § 396-p ( New Car Contract Disclosure Rules )] appears in Borys v. Scarsdale Ford, Inc.109 a case involving a new Ford Crown Victoria, the hood, trunk and both quarter panels of which had been negligently repainted prior to sale.
New Car Lemon LawNew York State’s New Car Lemon Law [ GBL § 198-a ] provides that “ If the same problem cannot be repaired after four or more attempts; Or if your car is out of service to repair a problem for a total of thirty days during the warranty period; Or if the manufacturer or its agent refuses to repair a substantial defect within twenty days of receipt of notice sent by you...Then you are entitled to a comparable car or refund of the purchase price “ [Borys v. Scarsdale Ford, Inc110 ]. Before commencing a lawsuit seeking to enforce the New Car Lemon Law the dealer must be given an opportunity to cure the defect [Chrysler Motors Corp. v. Schachner111 ( dealer must be afforded a reasonable number of attempts to cure defect )].
Used Car Lemon LawNew York State’s Used Car Lemon Law [ GBL § 198-b ] provides limited warranty protection for ninety days or 4,000 miles, whichever comes first, for vehicles with odometer readings of less than 36,000 Cintron v. Tony Royal Quality Used Cars, Inc. 112( defective 1978 Chevy Malibu returned within thirty days and full refund awarded )]. Used car dealers must be given an opportunity to cure a defect before the consumer may commence a lawsuit enforcing his or her rights under the Used Car Lemon Law [Milan v. Yonkers Avenue Dodge, Inc. 113( dealer must have opportunity to cure defects in used 1992 Plymouth Sundance ) ].
The Used Car Lemon Law does not preempt other consumer protection statutes [Armstrong v. Boyce 114] and has been applied to used vehicles with coolant leaks [Fortune v. Scott Ford, Inc. 115], malfunctions in the steering and front end mechanism [Jandreau v. LaVigne . 116], and stalling and engine knocking Ireland v. J.L.’s Auto Sales, Inc. 117
Implied Warranty Of MerchantabilityBoth new and used cars carry with them an implied warranty of merchantability [ U.C.C. §§ 2-314, 2-318 ][Denny v. Ford Motor Company 118 ]. Although broader in scope than the Used Car Lemon Law the implied warranty of merchantability does have its limits, i.e., it is time barred four years after delivery [ U.C.C. § 2-725; Hull v. Moore Mobile Homes Stebra, Inc. 119 ( defective mobile home; claim time barred )] and the dealer may disclaim liability under such a warranty [ U.C.C. § 2-316 ] if such a disclaimer is written and conspicuous [Natale v. Martin Volkswagen, Inc.120 ( disclaimer not conspicuous )].
Warranty Of ServiceabilityUsed car buyers are also protected by Vehicle and Traffic Law § 417 [ “ V&T § 417 “ ] which requires used car dealers to inspect vehicles and deliver a certificate to buyers stating 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. V&T § 417 is a non-waiveable, nondisclaimable, indefinite, warranty of serviceability which has been liberally construed [ Barilla v. Gunn Buick Cadillac-GNC, Inc. 121; Ritchie v. Empire Ford Sales, Inc. 122 dealer liable for Ford Escort that burns up 4 ½ years after purchase )].
New Car Contract Disclosure RulesIn Borys v. Scarsdale Ford, Inc 123a consumer demanded a refund or a new car after discovering that a new Ford Crown Victoria had several repainted sections. The Court discussed liability under GBL § 198-a ( New Car Lemon Law ) and GBL § 396-p(5) ( Contract Disclosure Requirements ) [ “ gives consumers statutory rescission rights ‘ in cases where dealers fail to provide the required notice of prior damage and repair(s)’ ( with a ) ‘ retail value in excess of five percent of the lesser of manufacture’s or distributor’s suggested retail price ‘” ].
In Borys the Court dismissed the complaint finding (1) that under GBL § 198-a the consumer must give the dealer an opportunity to cure the defect and (2) that under GBL § 396-p(5) Small Claims Court would not have jurisdiction [ money damages of $3,000 ] to force “ defendant to give...a new Crown Victoria or a full refund, minus appropriate deductions for use “.
There are, of course, many more consumer protection statutes available to consumers, attorneys, arbitrators and Judges in New York State’s Small Claims Courts.
1.Thomas A. Dickerson is a Westchester County Court Judge, New York State, Web Page http://members.aol.com/judgetad/index.html. Judge Dickerson is the author of Travel Law, Law Journal Press, New York, 1981-2001, updated biannually, Web Page http://members.aol.com/travellaw/index.html, Class Actions: The Law of 50 States, Law Journal Press, 1988-2001, updated annually, Web Page http://members.aol.com/class50/index.html, and over 170 articles and papers on consumer law issues, Web Pages at http://courts.state.ny.us/tandv.html
3 . My web site is at http://members.aol.com/judgetad/index.html
8 .See e.g., Lebovits, Small Claims Courts Offer Prompt Adjudication Based On Substantive Law, N.Y.S. Bar Journal, December 1998, p. 1; Lebovits, Special Procedures Apply To Enforcing Judgments In Small Claims Courts, N.Y.S. Bar Journal, January 1999, p. 28; Lebovits & Snyder, Practitioner’s Guide To Small Claims Part, New York Law Journal, Feb. 25, 1997, p. 1; Lebovits & Engoran, How To Help Judgment Creditors Collect: The Effective Use of Civil Court Act Article 18, New York Law Journal, Jan. 27, 1998, p. 1; Latwin, City Courts: Organization and Civil Jurisdiction Update, 23 Westchester Bar Journal 265 ( 1996 ); Latwin, Civil Courts: Organization and Civil Jurisdiction, 17 Westchester Bar Journal 279 ( 1990 ).
9 .See e.g., Judge Dickerson’s Consumer Law Decisions at http://members.aol.com/judgetad/index.html.
10 .See Dickerson, Applying Consumer Protection Laws In Small Claims Courts, New York Law Journal, Sept. 21, 1998, p. 1. See also Wagner, Using the ‘ Reasonable Consumer ‘ Rule In Deceptive Practices Litigation, New York Law Journal, Dec. 28, 1998, p. 1; Lesser, 1997 New York Consumer Fraud Act Decisions, New York Law Journal, April 3, 1998, p. 1.
12 .Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A. , 85 N.Y. 2d 20, 623 N.Y.S. 2d 529, 532, 647 N.E. 2d 741 ( 1995 ). See also Walts v. Melon Mortgage Corporation, 259 A.D. 2d 322, 686 N.Y.S. 2d 428 ( 1999 )( “ Plaintiffs have adequately alleged a materially deceptive practice aimed at consumers “ ), appeal dismissed 94 N.Y. 2d 795, 700 N.Y.S. 2d 424, 722 N.E. 2d 504 ( 1999 ); McKinnon v. International Fidelity Insurance Co., 182 Misc. 2d 517, 522 ( N.Y. Sup. 1999 )( “ the conduct must be consumer-oriented and have a broad impact on consumers at large “ ).
26 .BNI New York Ltd. v. DeSanto, 177 Misc. 2d 9, 14-15, 675 N.Y.S. 2d 753 ( 1998 ); See also Ricucci v. Business Network Int’l, Index No. SC 8876/97, Decision dated May 5, 1998, Yks. Cty. Ct. (TAD)( professional networking organization fails to deliver “ good referrals “ to real estate broker).
29 .Brown v. Hambric , 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ). Web Page http://www.directsaleslaw.com/library/cases/mlm/state/nybrown.htm
38 .Bartolomeo v. Runco , 162 Misc. 2d 485, 616 N.Y.S. 2d 695( 1994 ); Anilesh v. Williams, New York Law Journal, Nov. 15, 1995, p. 38, col. 2 ( Yks. Cty. Ct. )( landlord can not recover unpaid rent for illegal apartment )
52 .Rossi v. 21st Century Concepts, Inc., 162 Misc. 2d 932, 618 N.Y.S. 2d 182, 185 ( 1994 ). Compare: Millan v. Yonkers Avenue Dodge, Inc., New York Law Journal, Sept. 17, 1996, p. 26, col. 5 ( Yks. Cty. Ct. )( cooling-off period under Door-To-Door Sales Act does not apply to sale of used cars which is governed, in part, by cure requirements under New York’s Used Car Lemon Law ( GBL § 198-b ).
87 .On the issue of preemption see Eina Realty v. Class Action Litigationxte, 178 Misc. 2d 80, 679 N.Y.S. 2d 796 ( 1998 )( RPAPL § 711 which permits commencement of litigation by landlord within three days of service of rent demand notice is preempted by Fair Debt Collection Practice Act ( 15 U.S.C.A. § 1692 )).
105 .Automobile manufacturers or dealers may sell consumers new and used car warranties which, typically, are contingent upon an opportunity to cure. Borys v. Scarsdale Ford Inc., New York Law Journal, June 15, 1998, p. 34, col. 4 ( Yks. Cty. Ct. ). Web Page, infra.
106 .Denny v. Ford Motor Company, 87 N.Y. 2d 248, 639 N.Y.S. 2d 250, 253-259, 662 N.E. 2d 730 ( 1995 )( comparison of causes of action based upon strict products liability and breach of warranty of merchantability ).