APPLYING CONSUMER PROTECTION STATUTES IN NEW YORK STATE SMALL CLAIMS COURTS

1999 Judicial Seminar Program

By Judge Thomas A. Dickerson1

July 14, 1999

New York State's Small Claims Courts provide consumers with a cost effective legal forum in which they may seek money damages up to $3,000.00. The philosophical genesis of Small Claims Courts was "equal access to justice '"2. It 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 requirements3. There is an expanding body of Small Claims Court law now available to consumers, attorneys, arbitrators and Judges including manuals4, law journals5, articles6 and web sites7

Consumer Protection Statutes

Many small claims arise from defective or misrepresented goods and services. Typically, an injured consumer will have little understanding of his or her rights and the remedies arising therefrom. Small Claims Courts not only provide a cost effective forum but allow consumers to enforce their rights under a variety of consumer protection statutes8. The most popular of New York State's many consumer protection statutes is General Business Law § 349 [ " GBL § 349 " ][ and to a lesser extent GBL § 3509 [ false advertising ]] 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) ".10 Attorneys fees and costs may be recovered as well. As long as the deceptive business practice has " a broad impact on consumers at large "11 proving a violation of GBL § 349 is straight forward. As stated in BNI N.Y. v. DeSanto12

" ( 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"13. Recently, the Court of Appeals raised the threshold to only those misleading and deceptive acts " likely to mislead a reasonable consumer acting reasonably under the circumstances "14

Deceptive Business Practices

GBL § 349 applies to a broad spectrum of goods and services, e.g.:

  1. Misrepresentations of in vitro fertilization rates of success15;
  2. Real estate sales [ misrepresenting that a house with a septic tank was connected to a City sewer system16 ];
  3. Wedding singers [ the bait and switch17of 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 " 18];
  4. Furniture sales [ misrepresenting a sofa as being covered in Ultrasuede HP and protected by a 5 year warranty19; falsely promising to deliver furniture within one week20; failing to inform Spanish speaking consumers of a three day cancellation period21 ];
  5. Professional networking [ enforcing an unconscionable membership fees promissory note22 ];
  6. Clothing sales [ refusing to refund purchase price in cash for defective and shedding fake fur23 ];
  7. Pyramid schemes [ selling " Beat The System Program" certificates24;
  8. Selling instant travel agent credentials and educational services25 ];
  9. Aupair services [ misrepresenting the qualifications of an abusive aupair to care for handicapped children26 ];
  10. Exhibitions and conferences [ misrepresenting length of and number of persons attending Internet exhibition27 ];
  11. Employee scholarship programs [ refusing to honor agreement to provide scholarship to employee28];
  12. Defective ignition switches [ dealer liable for damages to used car that burns up four and one half years after sale29 ];
  13. Insurance [ automobile insurance company fails to provide timely defense to insured30];
  14. Defective brake shoes [ Midas Muffler fails to honor brake shoe warranty31 ];
  15. Travel services [ misrepresenting availability and quality of vacation campgrounds32;travel agent misrepresents refundability of tour vouchers33 ];
  16. Apartment rentals [ renting illegal apartments34; renting illegal

    sublets35 ];
  17. Home inspections [ civil engineer liable for failing to discover wet basement36 ];
  18. Door-to-door sales [ selling misrepresented and overpriced pots and pans37];
  19. Educational services [ failing to deliver computer programming course for beginners38] and
  20. Internet marketing [ failing to deliver purchased magazine subscriptions39 ].

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Common Consumer Transactions

In addition to GBL § 349 there are a variety of consumer protection statutes available to resolve small claims arising from common consumer transactions.

Warranty Of Habitability

Tenants in Spatz v. Axelrod Management Co.40 and coop owners in Seecharin v. Radford Court Apartment Corp.41 brought actions for damages done to their apartments by the negligence of landlords, managing agents or others, e.g., water damage from external or internal sources. Such a claim may invoke Real Property Law [ 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 "42 and may be used affirmatively in a claim for property damage43 or as a defense in a landlord's action for unpaid rent44. Recoverable damages may include apartment repairs, loss of personal property and discomfort and disruption45.

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 "46. 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'"47. 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.48 [ misrepresented pots and pans costing $200.00 each ], Kozlowski v. Sears49[ vinyl windows hard to open, did not lock properly and leaked ] and in Filpo v. Credit Express Furniture Inc50 [ 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 consumers51. A 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 costs52. In addition PPL 429(3) provides for an award of attorneys fees and costs53.

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 '"54. Pyramid schemes are sham money making schemes which prey upon consumers eager for quick riches.

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. Hambric55to 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. Curlen56, to 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 costs57.

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..."58.
In DiMarzo v. Terrace View59, restaurant 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 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...'"60 ]
allows the consumer to recover actual damages upon proof of a bailment and/or negligence61.

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No Cash Refund Policies

Some 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 "62]. In Baker v. Burlington Coat Factory Warehouse63, a clothing retailer refused to refund the consumer's cash payment when she returned a shedding and defective fake fur two days after purchase. 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 '"<64. If, 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 ]65. In essence, U.C.C. § 2-314 preempts66 GBL § 218-a. 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 costs67.

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"68. In Walker v. Winks Furniture69, a 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 dare 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 penalty70. A violation of GBL 396-u is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs71. In addition, GBL 396-u(7) provides for a trebling of damages upon a showing of a wilful violation of the statute72.

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 "73.
In Giarratano v. Midas Muffler74, 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. 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 "75]. A violation of GBL 617(2)(a) is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs76.

Cars, Cars, Cars

There are a variety of consumer protection statutes available to purchasers of automobiles, new and used. A comprehensive review of five of these statutes

  1. [ GBL § 198-b77 ( Used Car Lemon Law ),
  2. express warranty78,
  3. implied warranty of merchantability79 ( U.C.C. §§ 2-314, 2-318 ),
  4. Vehicle and Traffic Law [ V&T ] § 417,
  5. strict products liability80 ]
appears in Ritchie v. Empire Ford Sales, Inc.81, a case involving a used 1990 Ford Escort which burned up 4 ½ years after being purchased because of a defective ignition switch. In Ritchiethe dealer was found liable for the destruction of the Ford Escort under 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...V&T § 417 is a non-waiveable, nondisclaimable, indefinite, warranty of serviceability...".

In Borys v. Scarsdale Ford, Inc82>, a 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 )

[ " which gives car buyers statutory rescission rights...' 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 receipt of notice sent to you...Then you are entitled to a comparable car or refund..."
] 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 ".

Conclusion

There are, of course, many more consumer protection statutes available to consumers, attorneys, arbitrators and Judges in New York State's Small Claims Courts.

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FOOTNOTES

1 . Thomas A. Dickerson is a Judge on the Yonkers City Court. Judge Dickerson's Consumer Law Decisionsare available at his web site [ http://members.aol.com/judgetad/index.html ]. Judge Dickerson is the author of Travel Law, Law Journal Seminars- Press, New York, 1981-1998 [ updated semi-annually ], Class Actions: The Law of 50 States ,Law Journal Seminars-Press, 1988- 1998 [ updated annually ] and over 160 articles on consumer law, travel law and class actions.

2 .Celona v. Celona, New York Law Journal, March 25, 1994, p. 36, col. 2 ( Yks. Cty. Ct. ).

3. Id.

4 . See Engoran, Manual For Small Claims Arbitrators, A Comprehensive Guide To Litigating In The Small Claims Part Of The Civil Court Of The City Of New York; Fourth Edition June 1998.

5 .See The Small Claims Law Journal, Vol. 10, Issue 1, Fall 1998, Civil Court of the City of New York.

6 .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 ).

7 . See e.g., Judge Dickerson's Consumer Law Decisions web site at http://members.aol.com/judgetad/index.html.

8 . 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.

9. See e.g., Card v. Chase Manhattan Bank (USA), 175 Misc. 2d 389, 669 N.Y.S. 2d 117 ( 1996 ).

10. See e.g., Hart v. Moore, 155 Misc. 2d 203, 587 N.Y.S. 2d 477, 480 ( 1992 ).

11. 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 ).

12 .BNI New York Ltd. v. DeSanto, 177 Misc. 2d 9, 14-15, 675 N.Y.S. 2d 753 ( 1998 ).

13 . . Guggenheimer v. Ginzburg, 43 N.Y. 2d 268, 401 N.Y.S. 2d 182, 184, 372 N.E. 2d 17 ( 1977 ).

14 .. See N. 10, supra.

15 .. See Karlin v. IVF America, Inc., 1999 WL 262448 ( N.Y. Ct. App. May 4, 1999 ).

16.See Gutterman v. Romano Real Estate, New York Law Journal, Oct. 28, 1998, p. 36, col. 3 ( Yks. Cty. Ct. ).

17 .Bridget Griffin-Amiel v. Frank Terris Orchestras, 178 Misc. 2d 71, 677 N.Y.S. 2d 908 ( 1998 ).

18 .Jacobs, Bride Wins Lawsuit Over a Switch in Wedding Singers, New York Times Metro Section, Sept. 10, 1998, p. 1

19.Petrello v. Winks Furniture, New York Law Journal, May 21, 1998, p. 32, col. 3 ( Yks. Cty. Ct. ).

20 .Walker v. Winks Furniture, 168 Misc. 2d 265, 640 N.Y.S. 2d 428 ( 1996 ).

21 .Filpo v. Credit Express Furniture Inc., New York Law Journal, Aug. 26, 1997, p. 26, col. 4 ( Yks. Cty. Ct. ).

22. See N. 11, supra. 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 ).

23.Baker v. Burlington Coat Factory, 175 Misc. 2d 951, 673 N.Y.S. 2d 281 ( 1998 ).

24 .C.T.V., Inc. v. Curlen, New York Law Journal, Dec. 3, 1997, p. 35, col. 1 ( Yks. Cty. Ct. ).

25 .Brown v. Hambric, 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ).

26.Oxman v. Amoroso, 172 Misc. 2d 773, 659 N.Y.S. 2d 963 ( 1997 ).

27 .Sharknet Inc. v. Techmarketing, NY Inc., New York Law Journal, April 22, 1997, p. 32, col. 3 ( Yks. Cty. Ct. ), aff'd N.Y.A.T., Decision dated Dec. 7, 1998.

28 .Cambridge v. Telemarketing Concepts, Inc., 171 Misc. 2d 796, 655 N.Y.S. 2d 795 ( 1997 ).

29 .Ritchie v. Empire Ford Sales, Inc., New York Law Journal, November 7, 1996, p. 30, col. 3 ( Yks. Cty. Ct. ).

30.Rubinoff v. U.S. Capitol Insurance Co., New York Law Journal, May 10, 1996, p. 31, col. 3 ( Yks. Cty. Ct. ).

31.Giarrantano v. Midas Muffler, 166 Misc. 2d 390, 630 N.Y.S. 2d 656 ( 1995 ).

32.Meachum v. Outdoor World Corp., 235 A.D. 2d 462, 652 N.Y.S. 2d 749 ( 1997 ).

33.Pellegrini v. Landmark Travel Group,< 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 ).

34 .Bartolomeo v. Runco, 162 Misc. 2d 485, 616 N.Y.S. 2d 695 ( 1994 ). See also: 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 ).

35 .Yochim v. McGrath, 165 Misc. 2d 10, 626 N.Y.S. 2d 685 ( 1995 ).

36 .Ricciardi v. Frank d/b/a InspectAmerica Engineering, P.C., 163 Misc. 2d 337, 620 N.Y.S. 2d 918 ( 1994 ), mod'd 170 Misc. 2d 777, 655 N.Y.S. 2d 242 ( N.Y.A.T. 1996 ).

37 .Rossi v. 21st Century Concepts, Inc., 162 Misc. 2d 932, 618 N.Y.S. 2d 182 ( 1994 ).

38.Andre v. Pace University, 161 Misc. 2d 613, 618 N.Y.S. 2d 975 ( 1994 ), rev'd on other grounds 170 Misc. 2d 893, 655 N.Y.S. 2d 777 ( 1996 ).

39 .People v. Lipsitz, 174 Misc. 2d 571, 663 N.Y.S. 2d 468 ( 1997 ).

40 .Spatz v. Axelrod Management Co., 165 Misc. 2d 759, 630 N.Y.S. 2d 461 ( 1995 ).

41 .Seecharin v. Radford Court Apartment Corp., Index No. SC 3194- 95, Yks. Cty. Ct. (TAD), Decision dated June 15, 1995.

42 . N. 37, supra, at 165 Misc. 2d 764.

43 . See Ns. 37, 38, supra.

44 . See Kachian v. Aronson, 123 Misc. 2d 743 ( 1984 )( 15% rent abatement ).

45 . See N. 37, supra.

46 .Rossi v. 21st Century Concepts, Inc., 162 Misc. 2d 932, 618 N.Y.S. 2d 182, 185 ( 1994 ).

47 . Id. at 618 N.Y.S. 2d 185. 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 )).

48 . Id.

49 .Kozlowski v. Sears, New York Law Journal, Nov. 6, 1997, p. 27, col. 3 ( Yks. Cty. Ct. ).

50 .Filpo v. Credit Express Furniture Inc., New York Law Journal, Aug. 26, 1997, p. 26, col. 4 ( Yks. Cty. Ct. ).

51 .Id.

52 . See N. 43, supra, at 618 N.Y.S. 2d 187.

53 . Id. at 618 N.Y.S. 2d 187-188.

54 .Brown v. Hambric, 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ).

55 . Id.

<56 .C.T.V., Inc. v. Curlen, New York Law Journal, Dec. 3, 1997, p. 35, col. 1 ( Yks. Cty. Ct. ).

57 . See N. 51, supra, at 168 Misc. 2d 508-509.

58 .DiMarzo v. Terrace View, New York Law Journal, June 9, 1997, p. 34, col. 3 ( Yks. Cty. Ct. ), remanded on damages only, N.Y.A.T, Decision dated Oct. 27, 1998.

59. Id.

60. New York General Business Law § 201(1).

61 . See N. 52, supra.

62 .Baker v. Burlington Coat Factory Warehouse, 175 Misc. 2d 951, 673 N.Y.S. 2d 281, 282 ( 1998 ).

63 .Id.

64 . Id. at 673 N.Y.S. 2d 283.

65 . Id.

66 . 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 )).

67. See N. 59, supra, at 175 Misc. 2d 956-957.

68 .Walker v. Winks Furniture, 168 Misc. 2d 265, 640 N.Y.S. 2d 428 ( 1996 ).

69 . Id.

70 . Id. at 640 N.Y.S. 2d 430.

71. Id. at 640 N.Y.S. 2d 431.

72 . Id.

73 .Giarrantano v. Midas Muffler, 166 Misc. 2d 390, 630 N.Y.S. 2d 656, 659 ( 1995 ).

74 . Id. at 630 N.Y.S. 2d 660.

75 . New York General Business Law § 617(2)(a).

76 . See N. 70, supra, at 630 N.Y.S. 2d 661.

77 . See e.g., Millan v. Yonkers Avenue Dodge, Inc., New York Law Journal, Sept. 17, 1996, p. 26, col. 5 ( Yks. Cty. Ct. )( dealer must have opportunity to cure defects in used 1992 Plymouth Sundance ).

78.Automobile manufacturers or dealers may sell consumers new and used car warranties which, typically, are contingent upon an opportunity to cure. See e.g., Borys v. Scarsdale Ford Inc., New York Law Journal, June 15, 1998, p. 34, col. 4 ( Yks. Cty. Ct. ).

79 .See e.g., 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 ).

80. Strict products liability theory applies to new and used car dealers. See e.g., Nutting v. Ford Motor Company, 180 A.D. 2d 122, 584 N.Y.S. 2d 653 ( 1992 ).

81 .Ritchie v. Empire Ford Sales Inc., New York Law Journal, Nov. 7, 1996, p. 30, col. 3 ( Yks. Cty. Ct. ).

82 .Borys v. Scarsdale Ford, Inc., New York Law Journal, June 15, 1998, p. 34, col. 4 ( Yks. Cty. Ct. ).

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