Opinion
712 QTS 2002.
Decided April 20, 2006.
The plaintiff commenced the within action, pursuant to New York State's "Lemon Law" (General Business Law [GBL], § 198-a), against the manufacturer and retail dealer of a (then new) 2000 Chrysler automobile leased by plaintiff, to recover for alleged, unrepaired defects in the automobile in violation of the Lemon Law's statutory warranty. Upon trial, the court (Judge [now Justice] Elliot) dismissed the complaint upon the ground that the remedy provided by the Lemon Law is equitable in nature and that, therefore, the civil court lacks subject matter jurisdiction and, further, upon Judge Elliot's finding that the aforesaid statute requires that the defect complained of continues to exist at time of trial and that such defect did not so continue to exist. However, the dismissal was reversed on appeal (Kucher v. DaimlerChrysler Corporation, 9 Misc 3d 45 [App. Term, 2nd 11th Jud Dists. 2005]), the Appellate Term holding that the trial court did not lack subject matter jurisdiction insofar as Civil Court Act § 213 permits the court to entertain a rescission or reformation claim provided that the amount in controversy does not exceed $25,000. In addition, the appellate court specifically held that the defect need not "exist at the time of the arbitration hearing or trial" (Kucher, supra, at 49). The appellate Term, accordingly, found "that plaintiff is entitled to judgment as a matter of law against defendant" and directed that the matter "be remanded to the court below for an assessment of damages in accordance with the formula set forth in the statute [i.e., GBL § 198-a (c)(1), (2)]" ( Id., at 50).
Section 198-a (c)(1), provides, as is relevant hereto, that: "If, . . . the manufacturer or its agents or authorized dealers are unable to repair or correct any defect or condition which substantially impairs the value of the motor vehicle to the consumer after a reasonable number of attempts, the manufacturer, at the option of the consumer, shall replace the motor vehicle with a comparable motor vehicle, or accept return of the vehicle from the consumer and refund to the consumer the full purchase price or, if applicable, the lease price and any trade-in allowance plus fees and charges. . . ."
Section 198-a (c)(2) concerns the statutory duties, including a refund, of a manufacturer upon acceptance of the vehicle.
At the pretrial conference, as it was undisputed that the subject motor vehicle had not been returned to the defendant but had been disposed of by the plaintiff, defense counsel argued that since the vehicle is no longer in plaintiff's possession, plaintiff has no remedy under the Lemon Law in that such statute requires the return of the vehicle to the manufacturer. Upon arguments of counsel, this court directed both parties to submit memoranda of law on this issue.
The court now is faced with solving a conundrum. The Appellate court has determined liability in the instant matter and the only determination for this court to make is as to the amount of damages that should be awarded plaintiff. However, the remedies provided in the statute as compensatory damages for the purchaser, to wit, either replacement of the vehicle or a contract refund require the acceptance of the vehicle by the manufacturer. Although the Lemon Law places an affirmative duty upon the manufacturer to accept the vehicle, rather than upon the purchaser to deliver it to the manufacturer (see Levine v. American Motors Corp., 134 Misc 2d 1088 [Sup. Court, Monroe Co. 1987]), the statute clearly contemplates the return of the vehicle by the purchaser. In the instant matter, as in Diaz v. Audi of America, Inc., "this remedy cannot be expressly accomplished now that the vehicle is no longer in the plaintiff's possession" ( 19 AD 3rd 357, 359 [2nd Dept. 2005]).
The Court in Diaz, supra, found that there were "questions of fact as to whether the plaintiff is entitled to some remedy under the Lemon Law". This court is, thus, constrained by both the law of the case and authority in Diaz to assess damages which the plaintiff herein is to be awarded pursuant to the Lemon Law. However, as defendant has pointed out in its memoranda of law and the court agrees, the court may not award monetary damages to plaintiff as contemplated by GBL § 198-a (c)(1) and (2). Notwithstanding same, to leave a consumer without any recourse under the statute when such consumer (as with plaintiff herein) must of necessity often endure a long litigation process during which retention of the defective vehicle for any length of time is unlikely, eviscerates the "purpose of the statute [which is] to impose an obligation upon the manufacturer to repair a defective vehicle within a reasonable time, and to give the consumer a remedy in the event that this obligation is not satisfied" (Kucher, supra, at 50). In this regard, it should be noted that § 198-a(l) provides that "[A] court may award reasonable attorney's fees to a prevailing party or to a consumer who prevails in any judicial action . . ." (See also DaimlerChrysler Corporation v. Karman, 5 Misc 3d 567 [Sup. Court, Albany Co. 2004]; Hynson v. American Motors Sales Corporation, 164 AD2d 41 [2nd Dept. 1990]; General Motors Corporation v. Fischer, 140 Misc 2d 243 [Sup. Court, Broome Co. 1988]). In this regard, as the appellate court found that plaintiff is entitled to judgment as a matter of law, plaintiff must be considered as the prevailing party (see Black's Law Dictionary, 8th edit., 2004, p. 1154). A prevailing party may be entitled to attorney's fees where (as in the instant matter), such is statutorily permitted (see Hooper Associates Ltd. v. AGS Computers, Inc., 74 NY2d 487).
Furthermore, this court is mindful of the positive public policy considerations of the "Lemon Law" attorney fee provision, as was the court in General Motors Corp. v. Fischer, supra, which acknowleged that "the New York State Attorney General in his memorandum in support of the Lemon Law notes that the law . . . will aid consumers in finding attorneys who will represent them' . . . [and that it] is thus clear from the Bill Jacket and the Governor's memorandum that the Lemon Law is designed to provide the aggrieved purchaser with attorney's fees to encourage the consumer to pursue his rights" (140 Misc 2nd, supra, at 245). Failure to provide a consumer such recourse would undermine the very purpose of the Lemon Law and foreclose the consumer's ability to seek redress as contemplated by the Lemon Law and amendment thereto. Therefore, upon the foregoing, the court finds that plaintiff may be awarded, as damages in this action, reasonable attorneys fees, as provided under GBL § 198-a(l).
Accordingly, this matter shall be set down for a hearing, on June 1, 2006 at Part 111 at 9:30 AM, as to reasonable attorneys fees to be awarded plaintiff.