S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4142

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                             April 14, 2009
                               ___________

Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
  printed to be committed to the Committee on Consumer Protection

AN ACT to amend the general business law, in relation to protecting  the
  purchasers of defective computer equipment

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The general business law is amended by adding a new article
16-A to read as follows:
                               ARTICLE 16-A
                           COMPUTER LEMON LAW
SECTION 266. SHORT TITLE.
        267. DEFINITIONS.
        268. NOTICE TO PURCHASER.
        269. COVERAGE AND COVERAGE PERIOD.
        269-A. RECORDS.
        269-B. CIVIL ACTIONS.
        269-C. ATTORNEY FEES.
        269-D. PROHIBITED DEFENSES.
        269-E. EXPERT WITNESS.
        269-F. APPLICATION.
        269-G. RIGHTS PRESERVED.
        269-H. NON-WAIVER.
        269-I. APPLICABILITY.
  S 266. SHORT TITLE. THIS ARTICLE SHALL BE KNOWN AND MAY  BE  CITED  AS
THE "COMPUTER LEMON LAW".
  S 267. DEFINITIONS. AS USED IN THIS ARTICLE:
  (A)  "BRAND  NEW  COMPUTER"  MEANS  A  COMPUTER  DEVICE WHICH HAS BEEN
RECENTLY ASSEMBLED, IS UNUSED, AND CONTAINS NO RECONDITIONED PARTS.
  (B) "COMPUTER DEVICE" MEANS A  CENTRAL  PROCESSING  UNIT  OR  TERMINAL
DISPLAY SCREEN, INCLUDING ALL CIRCUITRY AND CONNECTIVE DEVICES; A PRINT-
ER;  A MODEM; A SCANNER; OR ANY OTHER DEVICE USED WITH A COMPUTER OR ANY

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11133-01-9
              

S. 4142                             2

PROGRAMMING FOR A COMPUTER, WHETHER PREINSTALLED OR PURCHASED  SEPARATE-
LY.
  (C)  "DATE  OF SALE OR LEASE" MEANS THE DATE WHEN A COMPUTER DEVICE IS
FIRST DELIVERED TO A PURCHASER.
  (D) "MANUFACTURER" MEANS A PERSON OR FOR-PROFIT ENTITY ENGAGED IN  THE
BUSINESS  OF  MANUFACTURING OR ASSEMBLING COMPUTERS OR COMPUTER SOFTWARE
OR ACCESSORIES.
  (E) "NONCONFORMITY" MEANS A DEFECT,  CONDITION,  OR  MALFUNCTION  THAT
IMPAIRS THE USE OF A COMPUTER DEVICE OR CAUSES IT TO OPERATE IN A MANNER
NOT INTENDED.
  (F)  "NOTICE" MEANS THE METHOD BY WHICH A PURCHASER ADVISES A MANUFAC-
TURER OF A NONCONFORMITY. NOTICE  MAY  BE  TRANSMITTED  BY  ANY  OF  THE
FOLLOWING  MEANS:  BY  CERTIFIED  OR  REGISTERED  MAIL,  RETURN  RECEIPT
REQUESTED; BY FACSIMILE TRANSMISSION; ELECTRONICALLY; BY E-MAIL;  OR  BY
ANY MEANS PROVIDED FOR IN THE MANUFACTURER'S WARRANTY OR SERVICE MATERI-
ALS.
  (G) "PURCHASER" MEANS A PERSON WHO IS A RESIDENT OR TEMPORARY RESIDENT
OF THE STATE OF NEW YORK OR A BUSINESS ENTITY THAT HAS FEWER THAN THIRTY
PERSONAL  COMPUTERS ACTING EITHER IN CONCERT WITH A NETWORK OR AS STAND-
ALONE MACHINES AND WHO OBTAINS A COMPUTER DEVICE BY LEASE, RETAIL  SALE,
INTERNET  SALE,  GIFT,  SPECIAL  CONTRACT, OR OTHER TRANSACTION, WHETHER
DELIVERED OR CURRENTLY LOCATED IN THIS STATE.
  S 268. NOTICE TO PURCHASER. (A) AT THE TIME OF  SALE  OR  LEASE  OF  A
COMPUTER DEVICE, A PURCHASER MUST BE PROVIDED AN ACCURATE WRITTEN STATE-
MENT  OF  THE PURCHASER'S RIGHTS ESTABLISHED BY THIS ARTICLE. THE STATE-
MENT MUST BE PRINTED IN FOURTEEN-POINT BOLDFACE TYPE.  THE  MANUFACTURER
MUST SECURE FROM THE PURCHASER A SIGNED ACKNOWLEDGMENT THAT THE MANUFAC-
TURER  HAS  EXPLAINED  TO  THE  PURCHASER HIS OR HER RIGHTS AND THAT THE
PURCHASER UNDERSTANDS THOSE RIGHTS. UNLESS A  SIGNED  ACKNOWLEDGMENT  OF
RIGHTS  IS  SECURED,  THE  TIME  LIMITS SPECIFIED IN SECTION TWO HUNDRED
SIXTY-NINE OF THIS ARTICLE MUST BE TOLLED.
  (B) AT THE TIME OF SALE OF A COMPUTER DEVICE,  THE  MANUFACTURER  MUST
CONSPICUOUSLY  DISCLOSE  THE  NAME  AND  VERSION  NUMBER OF ALL SOFTWARE
PROGRAMS OR COMBINATIONS OF PROGRAMS THAT WILL OR MAY BE LIKELY TO CAUSE
OPERATING PROBLEMS WITH THE COMPUTER DEVICE. IN ANY ACTION BROUGHT UNDER
THIS ARTICLE, WHEN THERE IS A CLAIM THAT SUCH A DISCLOSURE WAS NOT MADE,
THE BURDEN IS ON THE MANUFACTURER TO PROVE THAT SUCH  A  DISCLOSURE  WAS
MADE.
  S  269.  COVERAGE  AND  COVERAGE PERIOD. (A) A PURCHASER OF A COMPUTER
DEVICE IS ENTITLED TO EFFECTIVE REPAIRS  BY  THE  MANUFACTURER  FOR  ANY
NONCONFORMITY THAT ARISES DURING THE FIRST TWENTY-FOUR MONTHS OF USE, AT
NO  COST  TO  THE  PURCHASER.  HOWEVER, IF THE MANUFACTURER HAS ISSUED A
WARRANTY OR SERVICE CONTRACT, THE COVERAGE PERIOD MUST BE THE GREATER OF
THE TERM SPECIFIED IN THE WARRANTY OR SERVICE  CONTRACT  OR  TWENTY-FOUR
MONTHS FROM THE DATE OF PURCHASE.
  (B)  WITHIN FIVE BUSINESS DAYS AFTER RECEIVING NOTICE FROM A PURCHASER
OF A NONCONFORMITY, PLUS REASONABLE TIME FOR SHIPPING OF NOT  MORE  THAN
THREE  BUSINESS  DAYS,  THE MANUFACTURER MUST REPAIR ANY COMPUTER DEVICE
AND RETURN IT TO THE PURCHASER SUBJECT TO THE FOLLOWING CONDITIONS:
  (1) IF ON-SITE SERVICE IS PROVIDED FOR IN THE WARRANTY,  REPAIRS  MUST
BE MADE AT THE PURCHASER'S LOCATION WITHOUT CHARGE.
  (2)  IF  ON-SITE  SERVICE  IS  NOT  PROVIDED  FOR IN THE WARRANTY, THE
MANUFACTURER MUST ARRANGE AND PAY FOR THE  COST  OF  SHIPPING  FROM  THE
PURCHASER'S LOCATION.
  (3)  IF  ON-SITE  SERVICE  IS  CONDUCTED BY THE PURCHASER, WHO, AT THE
MANUFACTURER'S DIRECTION, PERFORMS DIAGNOSTIC TESTS  OR  TROUBLESHOOTING

S. 4142                             3

PROCEDURES  OR  ATTEMPTS  REPAIRS,  INCLUDING BUT NOT LIMITED TO PARTIAL
DISASSEMBLY, THE SERVICE IS CONSIDERED TO BE CONDUCTED BY  THE  MANUFAC-
TURER.
  (4)  ALL  REPAIRS MUST BE GUARANTEED BY THE MANUFACTURER FOR A TERM OF
TWO YEARS.
  (C) IF THE REPAIR IS INEFFECTIVE, THE  MANUFACTURER  MUST  HAVE,  UPON
NOTICE  FROM  THE  PURCHASER,  A SECOND OPPORTUNITY TO MAKE AN EFFECTIVE
REPAIR AT THE PURCHASER'S PHYSICAL LOCATION, PROVIDED THAT THE REPAIR IS
COMPLETED WITHIN THREE BUSINESS DAYS. THE MANUFACTURER MAY  NOT  REQUIRE
THE  PURCHASER  TO  SHIP THE UNIT BACK TO THE MANUFACTURER FOR THE FINAL
REPAIR OPPORTUNITY REGARDLESS OF THE MANUFACTURER'S WILLINGNESS  TO  PAY
FOR SHIPPING COSTS.
  (D)  IF  THE SECOND REPAIR IS INEFFECTIVE OR IF THE MANUFACTURER FAILS
TO TIMELY RESPOND TO THE PURCHASER AS REQUIRED UNDER THIS  SECTION,  THE
PURCHASER MAY ELECT TO DO EITHER OF THE FOLLOWING:
  (1)  RECEIVE FROM THE MANUFACTURER A REFUND OF THE FULL PURCHASE PRICE
PAID AT THE TIME OF SALE OR THE FULL VALUE OF THE LEASE, AS THE CASE MAY
BE, PLUS FINANCE AND COLLATERAL CHARGES.
  (2) RECEIVE FROM THE MANUFACTURER DELIVERY OF  A  BRAND  NEW  COMPUTER
DEVICE  OF  EQUAL  OR  GREATER VALUE THAN THE ORIGINAL PRICE PAID AT THE
TIME OF ACQUISITION, WITHOUT CHARGE OR OFFSET FOR USE.
  IF MORE THAN ONE NONCONFORMITY HAS BEEN SUBJECT TO REPAIR,  NO  SECOND
REPAIR  ATTEMPT  IS  REQUIRED BEFORE THE PURCHASER MAY SEEK THE REMEDIES
PROVIDED IN THIS ARTICLE.
  (E) A MANUFACTURER MAY, AT ITS DISCRETION, REQUEST RETURN OF THE UNRE-
PAIRED COMPUTER DEVICE AT COST, IF THE  MANUFACTURER  HAS  REPLACED  THE
UNIT OR REFUNDED THE PURCHASE PRICE.
  (F) NO COMPUTER DEVICE RETURNED IN ACCORDANCE WITH THIS SECTION MAY BE
RESOLD  IN THIS STATE. A VIOLATION OF THIS SUBDIVISION IS A VIOLATION OF
ARTICLE TWENTY-TWO-A OF  THIS  CHAPTER,  AND  IN  ADDITION  TO  REMEDIES
PROVIDED  BY  SUCH  ARTICLE,  ANY  SUBSEQUENT  PURCHASER  IS ENTITLED TO
DAMAGES IN THE AMOUNT OF TREBLE THE PURCHASE PRICE PAID BY THAT PURCHAS-
ER FOR THE DEVICE.
  (G) NOTWITHSTANDING SUBDIVISIONS  (E)  AND  (F)  OF  THIS  SECTION,  A
MANUFACTURER  WHO  REFUSES TO HONOR THE TERMS OF ANY WARRANTY BOOKLET OR
MATERIALS DELIVERED TO THE PURCHASER AT, PRIOR TO, OR AFTER THE DELIVERY
OF THE COMPUTER DEVICE IS IN VIOLATION OF ARTICLE TWENTY-TWO-A  OF  THIS
CHAPTER,  AND  IN  ADDITION  TO  REMEDIES  PROVIDED BY SUCH ARTICLE, THE
ORIGINAL PURCHASER IS ENTITLED TO DAMAGES IN THE AMOUNT  OF  TREBLE  THE
PURCHASE PRICE PAID BY THAT PURCHASER FOR THE DEVICE.
  S  269-A. RECORDS. A MANUFACTURER MUST RETAIN RECORDS OF ALL CONTACTS,
COMMUNICATIONS, NOTICE  TRANSMISSIONS,  OR  CUSTOMER  SERVICE  DIALOGUES
BETWEEN  ITSELF  AND  A  PURCHASER  AND  MUST MAINTAIN A LIST, BY SERIAL
NUMBER, OF ALL REFUNDS OR REPLACEMENTS MADE UNDER THIS ARTICLE.   COPIES
MUST  BE  MADE  AVAILABLE  TO  THE  PURCHASER UPON DEMAND, REGARDLESS OF
WHETHER THE MANUFACTURER USES THE SERVICES OF A THIRD  PARTY  TO  MANAGE
PURCHASER  CLAIMS. FAILURE TO COMPLY WITH THIS SECTION IS A VIOLATION OF
ARTICLE TWENTY-TWO-A OF  THIS  CHAPTER,  AND  IN  ADDITION  TO  REMEDIES
PROVIDED  BY SUCH ARTICLE, THE ORIGINAL PURCHASER IS ENTITLED TO DAMAGES
IN THE AMOUNT OF TREBLE THE PURCHASE PRICE PAID BY  THAT  PURCHASER  FOR
THE DEVICE.
  S  269-B.  CIVIL ACTIONS. (A) IF THE MANUFACTURER OF A COMPUTER DEVICE
VIOLATES ANY PROVISION OF THIS ARTICLE, THE  PURCHASER  MAY  INITIATE  A
CIVIL  ACTION  TO  RECOVER  AS DAMAGES ANY AND ALL REMEDIES SPECIFIED IN
THIS ARTICLE.

S. 4142                             4

  (B) IN ADDITION TO REFUND OR REPLACEMENT OF THE COMPUTER DEVICE  UNDER
SECTION  TWO  HUNDRED SIXTY-NINE OF THIS ARTICLE, A PREVAILING PURCHASER
IS ENTITLED TO AN ADDITIONAL AWARD OF SIX THOUSAND DOLLARS.
  (C)  IF  A PURCHASER INITIATES AN ACTION IN THIS STATE FOR A VIOLATION
OF THIS ARTICLE, THE MANUFACTURER MUST PRODUCE AT EACH AND  EVERY  COURT
PROCEEDING  IN THAT ACTION A CORPORATE REPRESENTATIVE WHO IS FULLY AWARE
OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND  HAS  AVAILABLE  FOR  THE
COURT'S  REVIEW  A  COPY  OF ALL RECORDS REQUIRED BY SECTION TWO HUNDRED
SIXTY-NINE-A OF THIS ARTICLE.
  S 269-C. ATTORNEY FEES. IF A PURCHASER PREVAILS IN A CLAIM UNDER  THIS
ARTICLE,  THE  MANUFACTURER MUST PAY THE PURCHASER'S REASONABLE ATTORNEY
FEES, COSTS, AND EXPERT EXPENSES IN RESOLVING AND, IF  NECESSARY,  LITI-
GATING AN ACTION UNDER SECTION TWO HUNDRED SIXTY-NINE-B OF THIS ARTICLE,
REGARDLESS OF THE COST OF THE COMPUTER DEVICE.
  S  269-D.  PROHIBITED DEFENSES. IT IS NOT A DEFENSE UNDER THIS ARTICLE
THAT A NONCONFORMITY WAS CAUSED BY A SOFTWARE PROGRAMMING PROBLEM  UNDER
THE FOLLOWING CONDITIONS:
  (A) IF THE SOFTWARE WAS PRE-INSTALLED BY THE MANUFACTURER.
  (B)  UNLESS  THE  MANUFACTURER  PRODUCES  AN  EXPERT  WITNESS  AT  THE
PROCEEDINGS WHO EXAMINED THE COMPUTER DEVICE AND CAN SPECIFY  THE  EXACT
CAUSE AND CORRECTION OF THE PROBLEM.
  (C)  UNLESS  THE  MANUFACTURER  HAS  STRICTLY COMPLIED WITH THE NOTICE
PROVISIONS OF SUBDIVISION (B) OF SECTION TWO HUNDRED SIXTY-EIGHT OF THIS
ARTICLE.
  S 269-E. EXPERT WITNESS. A PURCHASER WHO SEEKS RELIEF UNDER THIS ARTI-
CLE MUST NOT UNDER ANY CIRCUMSTANCES BE REQUIRED TO RETAIN  THE  OPINION
OF AN EXPERT TO PREVAIL AGAINST A MANUFACTURER.
  S  269-F. APPLICATION. A VIOLATION OF ANY PROVISION OF THIS ARTICLE IS
ALSO A VIOLATION OF ARTICLE TWENTY-TWO-A OF THIS CHAPTER.
  S 269-G. RIGHTS PRESERVED. NOTHING IN THIS ARTICLE LIMITS THE PURCHAS-
ER FROM PURSUING ANY OTHER RIGHTS  OR  REMEDIES  UNDER  ANY  OTHER  LAW,
CONTRACT, OR WARRANTY.
  S  269-H. NON-WAIVER. THE PROVISIONS OF THIS ARTICLE MAY NOT BE WAIVED
BY A PURCHASER.
  S 269-I. APPLICABILITY. THIS ARTICLE APPLIES TO ALL  COMPUTER  DEVICES
PURCHASED, LEASED, OR DELIVERED TO A PURCHASER ON OR AFTER THE EFFECTIVE
DATE OF THIS ARTICLE.
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.