Opinion
No. 011452/05.
2012-04-30
Georgia TULLEY, Plaintiff, v. NEMET MOTORS INC., Defendant.
Plaintiff was unrepresented. Defendant was represented by Rebecca M. Wenner, Bayside, NY.
Plaintiff was unrepresented. Defendant was represented by Rebecca M. Wenner, Bayside, NY.
ANDREA MASLEY, J.
On March 25, 2005, plaintiff Georgia Tulley initiated this action alleging “damage caused to automobile; failure to provide proper services; automobile sold to plaintiff with problem without plaintiff knowing it has a problem.” Plaintiff is unrepresented.
At trial it was established that on January 31, 2002, plaintiff purchased a 2002 Nissan Pathfinder with 42,837 miles from defendant Nemet Motors Inc. Plaintiff also purchased an extended warranty for 36 months or 36,000 miles for $2,195. The total cost was $32,339.21. She paid $2,000, got a used car credit of $1,700, and financed the balance. The warranty was in effect and covered the car until shortly before it was repossessed.
Ms. Tulley testified that the “check engine light” came on the next day. Ms. Tully returned the vehicle on February 5, 2002 and it was returned to her on February 6, 2002. According to Nemet's witness Mr. Pearlstein, Nemet technicians inspected the car and found a problem with the emissions control system which recycles fumes in the gas tank. Nemet's receipt states “purge control failure. Replaced purge control valve ... valve assy cont.” The emissions system problem was repaired without charge and the “check engine light” was reset.
Omar Bowie, Ms. Tulley's husband testified that he brought the car back 15 to 16 times about 1 to 2 times per week. Mr. Bowie testified that after he was relocated by his employer to Chicago, that he was stranded for 3 hours waiting for a tow because the check engine light came on. He testified that he was compelled to return to New York giving up his job and the family's Chicago apartment lease because he could not rely on this car to get to and from work.
On April 15, 2002, the “check engine light” appeared again. The mileage was recorded at 47,071. The technicians inspected the vehicle and found nothing wrong and reset the light.
On May 30, 3002, Nemet replaced the front brakes.
On September 4, 2002, five months later, plaintiff returned when the “check engine light” turned on and the mileage was 54,949. The technicians inspected the vehicle and found a valve problem represented by codes P0440, P1448. According to Nemet's invoice “Tested vent cntrl, valve found leaking replaced vent cntrl valve tested no further codes found” At trial Scott Pearlstein of Nemet said it was the result of normal wear and tear. The valve was replaced and the “check engine light” was reset. Ms. Tulley paid $63.43.
Plaintiff moved to Chicago in the fall of 2002. While she was driving her car from NYC to her new home, the “check engine light” turned on.
On October 1, 2002, Ms. Tulley brought the car to Mark Bass Nissan in Joliet Illinois when the check engine light appeared and the mileage was 57,079. The technician found the cause to be “valve sticking charcoal in system ... evap control system ... cleaning procedure for eval canister ... rpl evap cannister vent control valve ... valve assy.” The car was returned on October 4, 2002.
On October 7, 2002, the car was towed to Mark Bass when the car would not start, “fuel light stays on and whn adding gas, gauge won't move ... battery won't hold charge.” The mileage was 57,991I. The car was returned to plaintiff on October 10, 2002 after the battery, pump and sender were replaced. According to the receipt, Ms. Tulley paid $153.38. According to the A–1 Rescue Towing bill, plaintiff paid $175 for the tow. According to a letter from Nissan, plaintiff was reimbursed for the towing cost.
On October 21, 2002, Ms. Tulley brought the car to Mark Bass when the check engine light appeared and the mileage was 57,991. There was no charge to fix “P1447 Evap control system Purge ... RPL Purge control valve ASSy ... Valve Assy.” The car was returned on October 22, 2002.
On October 30, 2002, when the check engine light went on again, Ms. Tulley brought the car to Mark Bass Nissan. At no charge, Mark Bass repaired “1447 Evap control purge..boost sens ... vacuum cut valve bypass valve ... valve assy..rpl vacuum cut-off valve ... valve assy.”
On March 21, 2003, Ms. Tulley brought the car to Bay Ridge Nissan, Inc. for a diagnostic because the check engine light was on and the mileage was 68,926. Ms. Tulley testified that Bay Ridge fixed the valve, but provided no receipt because she owed a $50 deductible, but had no money to pay for it.
On July 22, 2003, Ms. Tulley returned to Bay Ridge which performed a diagnostic test on the car in response to Ms. Tulley's report that the “check engine” light was on. The technician recorded “Code P1444 ... found purge volume cont valve is no good/customer advised and declined at this time and customer responsible for diagnostic time (prices for replaced purg volume cont valve is $322 tax) customer states: squeaking on brake check and found am brakes pad and missing hardware. Upon inspection tech found car has a/m brakes pad installed and rotors need to service/ customer advised and declined at this time (prices for installed Nissan brakes pad; install led hardware and service rotors is $285.00 tax.” She paid Bay Ridge $436.16 to replace “2 rear parall bar.”
On October 18, 2003, when the mileage was 81,196, Ms. Tulley paid Bay Ridge $972.14 to replace brake pads, resurface rotors and shims.
While in Chicago, plaintiff requested a full refund from Nemet, but Nemet offered to exchange the car. Defendant offered to exchange the car as long as it was in the same condition. According to Mr. Pearlstein, defendant arranged for the Nissan dealer in Chicago to make the deal. Plaintiff was faxed a credit application, but she did not complete it.
According to Nissan's “Calculation of Surplus or Deficiency,” the car was repossessed on October 29, 2003. According to Nissan's calculation, initially $16,068.23 was owing; the car was sold for $8,200; the cost of repossessing was $973 leaving a balance of $8,841.23.
The used car lemon law does not apply in this case because the repairs occurred beyond the 3,000 miles (45,837) or 60 day limit (April 1, 2002).
However, the car is covered by a federal emission warranty, a provision in the Clean Air Act. In re Detroit Diesel Corp. v. AG of New York, 269 A.D.2d 1 (1st Dept 2000). The emissions control system has been repaired eight times: February 5, 2002; September 2, 2002; October 1, 2002; October 7, 2002; October 21, 2002; October 30, 2002; March 21, 2003; July 22, 2003. Plaintiff was deprived of the use of her car from February 5 to 6, 2002; April 15, 2002; September 4, 2002; October 1 to 4, 2002; October 7 to 10, 2002; October 21 to 22, 2002; October 30, 2002; March 21, 2003; July 22, 2003. All of the repairs fall within the warranty term of 8 years or 80,000 miles. 42 USC § 7541.
The defect is also covered by the express warranty which provides: “The systems covered by [this] warranty include: (a) All lubricated parts, Water pump, [Fuel] pump, manifolds, Engine Block, Cylinder head, rotary Engine housings and Flywheels.” Mr. Pearlstein explained that the “emissions control system which recycles fumes in the gas tank.” According to the written warranty includes the engine includes the fuel pump. Therefore, the emissions control system is part of the engine.
The court recognizes that Nemet offered to replace the vehicle. However, as evidenced by the credit application and Mr. Pearlstein's testimony, Nemet would charge plaintiff an additional amount to replace the defective car. Charging Ms. Tulley more does not constitute honoring the express warranty for which she paid $2,195. Giarratano v. Midas Muffler, 166 Misc.2d 390 (City Court, Yonkers 1995) (“If a part does not conform to the warranty ... the initial seller shall make repairs as are necessary to correct the nonconformity.”).
Further, defendant violated VTL § 417 which supplements the Used Car Lemon Law. Barilla v. Gunn Buick–Cadillac–GMC, Inc., 139 Misc.2d 496 (City Court, Oswego County 1988). The day the car left the lot, the emissions system was not operating as evidenced by the fact that it was repaired on February 5, 2002. The emissions system was repaired 7 additional times.
Accordingly, it is
ORDERED that judgment in favor of plaintiff in the amount of $25,000 with interest from October 1, 2002, the date of her 3d visit to repair the same problem, costs and disbursements. The clerk is directed to enter judgment accordingly. The foregoing constitutes the decision and order of the court.