(1) The purchaser of a wheelchair, if the wheelchair was purchased
from a wheelchair dealer or manufacturer for purposes other than resale.
(2) A person to whom the wheelchair is transferred for purposes other
than resale, if the transfer occurs before the expiration of an express
warranty applicable to the wheelchair.
(3) A person who may enforce the warranty.
(4) A person who leases a wheelchair from a wheelchair lessor under a
written lease.
(5) State governmental agencies, subscribers to article forty-three of
the insurance law, corporations, subscribers of organizations organized
under article forty-four of the public health law, and programs governed
by title eleven of article five of the social services law.
c. "Demonstrator" means a wheelchair used primarily for the purpose of
demonstration to the public.
d. "Early termination cost" means any expense or obligation that a
wheelchair lessor incurs as a result of both the termination of a
written lease before the termination date set forth in that lease and
the return of a wheelchair to a manufacturer pursuant to subparagraph
three of paragraph b of subdivision three of this section. "Early
termination cost" includes a penalty for prepayment under a finance
arrangement.
e. "Early termination savings" means any expense or obligation that a
wheelchair lessor avoids as a result of both the termination of a
written lease before that termination date set forth in that lease and
the return of a wheelchair to a manufacturer pursuant to subparagraph
three of paragraph b of subdivision three of this section. "Early
termination savings" includes an interest charge that the wheelchair
lessor would have paid to finance the wheelchair or, if the wheelchair
lessor does not finance the wheelchair, the difference between the total
amount for which the lease obligates the consumer during the period of
the lease term remaining after the early termination and the present
value of that amount at the date of the early termination.
f. "Manufacturer" means a person who manufactures or assembles
wheelchairs and agents of that person, including an importer, a
distributor, factory branch, distributor branch and any warrantors of
the manufacturer's wheelchair, but does not include a wheelchair dealer.
g. "Wheelchair" means any wheelchair, including a demonstrator, that a
consumer purchases or accepts transfer of in this state.
h. "Wheelchair dealer" means a person who is in the business of
selling wheelchairs.
i. "Wheelchair lessor" means a person who leases a wheelchair to a
consumer, or who holds the lessor's rights, under a written lease.
j. "Nonconformity" means a condition or defect that substantially
impairs the use, value or safety of a wheelchair, and that is covered by
an express warranty applicable to the wheelchair or to a component of
the wheelchair, but does not include a condition or defect that is the
result of abuse, neglect or unauthorized modification or alteration of
the wheelchair by a consumer.
k. "Reasonable attempt to repair" means that, within the term of an
express warranty applicable to a new wheelchair, any nonconformity
within the warranty is either subject to repair by the manufacturer,
wheelchair lessor or any of the manufacturer's authorized wheelchair
dealers, for at least three times and a nonconformity continues, or that
the wheelchair is out of service for an aggregate of at least thirty
days because of warranty nonconformity, after having been returned to
the manufacturer, wheelchair lessor or any of the manufacturer's
authorized wheelchair dealers for repair.
2. a. A manufacturer who sells a wheelchair to a consumer, either
directly or through a wheelchair dealer, shall furnish the consumer with
an express warranty for the wheelchair. The duration of the express
warranty shall be not less than one year after first delivery of the
wheelchair to the consumer. In the absence of an express warranty from
the manufacturer, the manufacturer shall be deemed to have expressly
warranted to the consumer of a wheelchair that, for a period of one year
from the date of first delivery to the consumer, the wheelchair will be
free from any condition or defect which substantially impairs the value
of the wheelchair to the consumer.
b. The following notice shall be provided in conspicuous type and in
substantially the following form by the manufacturer, wheelchair dealer
or wheelchair lessor to each consumer at the time of purchase:
WHEELCHAIR LEMON LAW BILL OF RIGHTS
(1) By law, the manufacturer shall be deemed to have provided to you,
the purchaser of a wheelchair, a one year warranty which starts on the
date of first delivery to you. This warranty provides that the
wheelchair will be free from any condition or defect that substantially
impairs its use, value or safety.
(2) To ensure you receive the benefits of this warranty, you must
report any problems and make the wheelchair available to the
manufacturer, authorized wheelchair dealer or wheelchair lessor for
repair before one year after first delivery.
(3) Upon notification and the wheelchair's being made available to the
manufacturer or its authorized dealer, the problem must be corrected
free of charge.
(4) During the warranty period, if any condition or defect cannot be
repaired after three attempts or if your wheelchair is out of service
for a total of thirty days for repairs to any condition or defect which
substantially impairs the use, value or safety of the wheelchair, you
are entitled to either a comparable new wheelchair or a refund or, if
you are leasing a wheelchair, replacement of your wheelchair with a
comparable new wheelchair or a refund of the full purchase price plus
any finance charge and collateral costs, minus a reasonable allowance
for use.
(5) The warranty provided to you by law does not cover conditions or
defects that result from abuse, neglect or unauthorized modification or
alteration of the wheelchair and relieves the manufacturer of liability
for repairs in these instances.
(6) A manufacturer may refuse to replace a wheelchair or refund your
purchase price if a problem does not substantially impair the use, value
or safety of your wheelchair.
(7) You may submit any dispute with a manufacturer, dealer or lessor
arising from a dispute over the repair of your wheelchair to an
alternate arbitration mechanism established pursuant to rules
promulgated by the New York state attorney general.
(8) No contract or agreement for the sale or lease of a wheelchair can
void any of these rights.
3. a. If a new wheelchair does not conform to an applicable express
warranty and the consumer reports the nonconformity to the manufacturer,
the wheelchair lessor or any of the manufacturer's authorized wheelchair
dealers and makes the wheelchair available for repair before one year
after first delivery of the wheelchair to a consumer, the nonconformity
shall be repaired at no charge to the consumer.
b. (1) If, after a reasonable attempt to repair, the nonconformity is
not repaired, the manufacturer shall carry out the requirement set forth
under either subparagraph two or three of this paragraph, whichever is
appropriate.
(2) At the direction of a consumer described under subparagraph one,
two or three of paragraph b of subdivision one of this section, do one
of the following:
(a) Accept return of the wheelchair and replace the wheelchair with a
comparable new wheelchair and refund any collateral costs.
(b) Accept return of the wheelchair and refund to the consumer and to
any holder of a perfected security interest in the consumer's
wheelchair, as their interest may appear, the full purchase price plus
any finance charge amount paid by the consumer at the point of sale and
collateral costs, less a reasonable allowance for use. A reasonable
allowance for use may not exceed the amount obtained by multiplying the
full purchase price of the wheelchair by a fraction, the denominator of
which is one thousand eight hundred twenty-five and the numerator of
which is the number of days that the wheelchair was driven before the
consumer first reported the nonconformity to the wheelchair dealer.
(3) (a) With respect to a consumer described under subparagraph four
of paragraph b of subdivision one of this section, accept return of the
wheelchair, refund to the wheelchair lessor and to any holder of a
perfected security interest in the wheelchair, as their interest may
appear, the current value of the written lease and refund to the
consumer the amount that the consumer paid under the written lease plus
any collateral costs, less a reasonable allowance for use.
(b) The current value of the written lease equals the total amount for
which that lease obligates the consumer during the period of the lease
remaining after its early termination, plus the wheelchair dealer's
early termination costs and the value of the wheelchair at the lease
expiration date if the lease sets forth that value, less the wheelchair
lessor's early termination savings.
(c) A reasonable allowance for use may not exceed the amount obtained
by multiplying the total amount for which the written lease obligates
the consumer by a fraction, the denominator of which is one thousand
eight hundred twenty-five and the numerator of which is the number of
days that the consumer drove the wheelchair before first reporting the
nonconformity to the manufacturer, wheelchair lessor or wheelchair
dealer.
c. To receive a comparable new wheelchair or a refund due under
subparagraph one or two of paragraph b of this subdivision, a consumer
described under subparagraph one, two or three of paragraph b of
subdivision one of this section, shall offer to the manufacturer of the
wheelchair having the nonconformity to transfer possession of that
wheelchair to that manufacturer. No later than twenty days after that
offer, the manufacturer shall provide the consumer with the comparable
new wheelchair or refund. When the manufacturer provides the new
wheelchair or refund, the consumer shall return the wheelchair having
the nonconformity to the manufacturer, along with any endorsements
necessary to transfer real possession to the manufacturer.
d. (1) To receive a refund due under subparagraph three of paragraph b
of this subdivision, a consumer described under subparagraph four of
paragraph b of subdivision one of this section shall offer to return the
wheelchair having the nonconformity to its manufacturer. No later than
thirty days after that offer, the manufacturer shall provide the refund
to the consumer. When the manufacturer provides the refund, the consumer
shall return to the manufacturer the wheelchair having the
nonconformity.
(2) To receive a refund due under subparagraph three of paragraph b of
this subdivision, a wheelchair lessor shall offer to transfer possession
of the wheelchair having the nonconformity to its manufacturer. No later
than thirty days after that offer, the manufacturer shall provide the
refund to the wheelchair lessor. When the manufacturer provides the
refund, the wheelchair lessor shall provide to the manufacturer any
endorsements necessary to transfer legal possession to the manufacturer.
(3) No person may enforce the lease against the consumer after the
consumer receives a refund due under subparagraph three of paragraph b
of this subdivision.
e. No wheelchair returned by a consumer or wheelchair lessor in this
state pursuant to paragraph b of this subdivision, or by a consumer or
wheelchair lessor in another state under a similar law of that state,
may be sold or leased again in this state unless full disclosure of the
reasons for return is made to any prospective buyer or lessee.
4. a. Each consumer shall have the option of submitting any dispute
arising under this section upon the payment of a prescribed filing fee
to an alternate arbitration mechanism established pursuant to
regulations promulgated hereunder by the New York state attorney
general. Upon application of the consumer and payment of the filing fee,
all manufacturers shall submit to such alternate arbitration.
b. Such alternate arbitration shall be conducted by a professional
arbitrator or arbitration firm appointed by and under regulations
established by the New York state attorney general. Such mechanism shall
insure the personal objectivity of its arbitrators and the right of each
party to present its case, to be in attendance during any presentation
made by the other party and to rebut or refute such presentation. In all
other respects, such alternate arbitration mechanism shall be governed
by article seventy-five of the civil practice law and rules. Where
applicable, any action required of a manufacturer, wheelchair dealer or
wheelchair lessor to comply with a final decision of such arbitrator
shall be completed within forty days of the date of such decision.
5. This section does not limit rights or remedies available to a
consumer under any other law.
6. Any waiver by a consumer of rights under this section is void.
7. In addition to pursuing any other remedy, a consumer may bring an
action to recover for any damages caused by a violation of this section.
The court shall award a consumer who prevails in such an action twice
the amount of any pecuniary loss, together with costs, disbursements and
reasonable attorney fees, and any equitable relief that the court
determines is appropriate.
* NB There are 2 ยง 670's