Citation Numbers: 135 Misc. 2d 901
Judges: Duskas
Filed Date: 6/8/1987
Status: Precedential
Modified Date: 2/5/2022
OPINION OF THE COURT
On or about November 15, 1985, Dodds Motor Corporation, a Ford automobile dealership in Gouverneur, New York, sold to the plaintiff a new 1986 Ford Ranger pickup truck. On November 29, 1985, plaintiff returned the vehicle to Dodds complaining of a problem with the transmission and a windshield leak. The windshield was repaired by Dodds, but it referred the transmission difficulties to a transmission special
Due to several reasons, primarily the unavailability of parts and the Christmas season, the truck was not repaired until January 14, 1986, and, therefore, was unavailable to the plaintiff for a period of some 53 days. At the time that it was returned to him plaintiff was advised that the transmission housing had been cracked by the repairer, but that it had been welded and that a new housing had been ordered and would be installed as soon as it arrived. Apparently, the welded housing permitted the truck to be operated normally, and did not interfere in any manner with its performance.
On January 14, 1986, the pickup truck was repaired and available at Dodds, and their representatives contacted the plaintiff advising him that he could pick up the truck. Thereafter, on January 20, 1986, plaintiff did receive the pickup truck, but also on that date either mailed or gave to Dodds a letter stating the following: "I am going to press the lemon law on my 1986 Ford Ranger because of length of service time and quality of work. The only reason I am taking this truck is that I need a vehicle to drive.”
Plaintiff’s attorney subsequently contacted Dodds and also communicated to them that plaintiff was exercising his rights under section 198-a of the General Business Law (Lemon Law) and requested a new vehicle or the return of the purchase price.
A similar request was made to the defendant by plaintiff’s counsel on January 30, 1986, and on February 14, 1986, and a form entitled "Customer Statement” was forwarded to the Ford Consumer Appeals Board. Once again, this form requested relief under the "Lemon Law”.
In February 1986, the new transmission case was received by Dodds and eventually the plaintiff brought the truck to Dodds where the case was installed on April 16, 1986.
The defendant failed to provide any relief to the plaintiff through its Consumer Appeals Board and thereafter this action was commenced by service of a summons in May 1986.
Plaintiff’s complaint alleges a single cause of action under New York General Business Law § 198-a and seeks a reimbursement of the purchase price with interest from November 29, 1985, together with reasonable attorney’s fees and disbursements. The answer of the defendant contains a general denial and in addition alleges that the plaintiff was guilty of
The court now has before it a motion on behalf of the defendant which seeks dismissal of the complaint pursuant to CPLR 3211 (a) (7) or summary judgment pursuant to CPLR 3212. It is the position of the defendant that the Lemon Law is not applicable in this case since the plaintiffs pickup truck has been repaired, was returned to the plaintiff repaired, and that he has continued to use the vehicle since it was returned to him. In particular, the defendant cites section 198-a (c) which provides that relief is available only if the authorized dealers are "unable to repair or correct any defect or condition which substantially impairs the value of the motor vehicle”. (Emphasis added.)
It is the position of the plaintiff, however, that subdivision (d) of section 198-a provides a formula by which a "reasonable number of attempts to repair” is calculated. In particular, it provides that a presumption arises that a defect has not been repaired if a vehicle has been out of service for a total of 30 days or more. The very fact that this vehicle was out of service for a period of 53 days, regardless of its eventual repair, should, according to plaintiff, permit him to obtain a return of the purchase price or a new vehicle.
It is obvious that the Legislature in enacting subdivision (d) of section 198-a of the General Business Law intended that a consumer who is burdened with a new car which requires lengthy or repeated repair work be given an opportunity to put an end to his or her inconvenience. Subdivision (d) of section 198-a provides a "presumption” to assist the consumer in establishing that a defect or malfunction exists. Therefore, it has been stated that it is of "no moment” that subsequent to a demand for relief under the Lemon Law the automobile is fixed and in superior condition. (Bouchard v Savoca, 129 Misc 2d 506 [Sup Ct, Albany County 1985].)
The question now before this court is whether or not a consumer, having been deprived the use of his new vehicle for a period in excess of 30 days, may demand a return of the purchase price under section 198-a of the General Business Law, after the vehicle has been repaired.
The uncontroverted proof before the court on this motion is
It is the decision of this court, therefore, that the motion of the defendant for an order pursuant to CPLR 3211 (a) (7) dismissing the complaint for failure to state a cause of action be granted, without costs.