Opinion
No. 81738/03.
Decided December 9, 2004.
Plaintiff instituted this action to recover the purchase price of a used car bought from Defendant plus other expenses incurred in attempting to repair the vehicle.
At the time of the purchase of the automobile, the odometer indicated that the car had been driven over 126,000 miles. Plaintiff and her witness testified that they inspected the subject 1992 Mazda before concluding the sale and found the vehicle to operate satisfactorily. Prior to Plaintiff picking up the car, Defendant replaced the transmission with a rebuilt transmission and obtained a six-month warranty from the company that sold it the part.
Plaintiff drove the car to Michigan, encountering numerous problems with the transmission en route, and eventually she left the car in the mid-west and flew back to New York. Defendant agreed to repair the transmission if Plaintiff brought the car back to its facility. Plaintiff testified that Defendant also agreed to reimburse her for the cost of bringing the car back to New York, a fact Defendant denies.
The car was returned to Defendant who made the necessary repairs to the transmission, but Plaintiff refused to retrieve the vehicle, demanding instead the full purchase price of $2100, plus the cost of having the car brought back to New York, her travel expenses, and the time she lost from work in attempting to repair the automobile and litigating the matter.
Defendant asserts that it is not obligated to return the purchase price because the car had been driven over 100,000 miles which, under New York law, relieves it of any warranties. Plaintiff has argued that Defendant's replacement of the transmission takes the vehicle out of the statutory provisions concerning the sale of used cars and renders Defendant liable for a general warranty.
Defendant has counterclaimed for storage fees for the automobile that Plaintiff refused to pick up and left with Defendant.
Section 198-b of the General Business Law concerns the sale or lease of used motor vehicles. The intent of this statute is to provide consumers with certain minimum warranty guarantees when they lease or purchase a used car. However, subsection (d)(3) of this statute states:
. . . this article shall not apply to used motor vehicles sold for . . . less than one thousand five hundred dollars; or to used motor vehicles with over one hundred thousand miles at the time of sale or lease if said mileage is indicated in writing at the time of sale or lease.
It is uncontested that at the time of the sale in question Defendant provided Plaintiff with a written "Retail Certificate of Sale" which indicated the total mileage on the car. Further, Defendant had the "Used Motor Vehicle Warranty," mandated by the above-referenced statute, affixed to its wall. This document outlines the consumer's rights when purchasing a used motor vehicle, and specifies that the warranties do not apply to motor vehicles with over 100,000 miles.
Pursuant to the provisions of GBL sec. 198-b, referred to connotatively as the "Lemon Law," the purchaser or lessee of a used vehicle has the right to have the vehicle repaired or, if unable to be repaired, to receive a refund, provided that the sale or lease encompasses a vehicle covered by the statute. General Counsel Opinion, Opinion No. 02-05-11, 2002 NY Insurance GC Opinions LEXIS 44. A dealer and consumer may enter into a separate service or warranty agreement for a fee that "wraps around" the statutory warranties, but no such separate warranty agreement may abrogate the dealer's obligations under the Lemon Law. Id.
The Lemon Law provides for a minimum warranty period that must be provided to the consumer for used cars purchased with fewer than 100,000 miles. Eye v. C.K. Funding Corp., et al., 1 Misc 3d 135A, 781 NYS2d 623A (2nd Dept. 2003). However, in the instant case, the law provides no warranty for Plaintiff because the vehicle had an odometer reading of over 100,000 miles.
Plaintiff's interesting argument that the replacement of the transmission by Defendant takes the vehicle out of the exculpatory provision of the Lemon Law, the court finds without merit. Transmissions are specifically covered under section 4 of the used car Lemon Law; however, section 5 requires a consumer who alleges a transmission problem to afford the dealer at least three attempts to remedy the problem before being able to seek redress pursuant to statutory provisions. Raymond v. Van Deusen. 183 Misc2d 81, 702 NYS2d 491 (Columbia County 1998).
Courts have only permitted a consumer to obtain a refund of the purchase price for a motor vehicle that is specifically covered by the used car Lemon Law when it was evidenced that multiple attempts to repair the car had failed. Matter of Royal Chrysler-Oneonta, Inc., 243 AD2d 1007, 663 NYS2d 410 (3rd Dept. 1997), see generally Ireland v. J.L.'s Auto Sales, Inc., 151 Misc2d 1019, 574 NYS2d 262 (Wayne County 1991), reversed on other grounds, 153 Misc2d 721, 582 NYS2d 603. In the instant case, Defendant voluntarily attempted to repair the car but its success at such repair is unknown because Plaintiff refused to retrieve the vehicle, demanding a refund instead. Plaintiff would only be entitled to the return of the purchase price of a car covered by the Lemon Law warranties after she permitted Defendant three attempts to rectify the problem. Laznovsky v. Hyundai Motor American, Inc., 190 Misc2d 537, 738 NYS2d 870 (Suffolk County 2002)
Based on the foregoing, the court concludes that the subject automobile is not covered by the warranties of the used car Lemon Law because the car had more than 100,000 miles when it was purchased and Plaintiff and Defendant did not enter into any other contractual arrangement that would provide a legal basis for recovery by Plaintiff. Even if the court were to entertain Plaintiff's argument that the rebuilt transmission entitles her to a separate warranty, she has failed to evidence any specific representation that Defendant made to her with respect to the automobile nor any privity of contract between Plaintiff and the company that provided the rebuilt transmission to Defendant.
Plaintiff has failed to meet her burden of proof with respect to any oral agreement between her and Defendant for the reimbursement of expenses incurred in having the car transported from Michigan to New York, and therefore all of her other prayers for relief must be denied as well.
The court also denies Defendant's request for storage fees. No evidence was presented to indicate Plaintiff agreed to be responsible for such fees, that Defendant had a written policy with respect to such fees, nor that such fee was ever billed to Plaintiff.
This constitutes the decision of the court.