S T A T E O F N E W Y O R K
________________________________________________________________________
7707
2009-2010 Regular Sessions
I N A S S E M B L Y
April 22, 2009
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Introduced by M. of A. P. RIVERA, V. LOPEZ, COLTON -- Multi-Sponsored by
-- M. of A. DINOWITZ, GOTTFRIED, WEINSTEIN -- read once and referred
to the Committee on Consumer Affairs and Protection
AN ACT to amend the general business law, in relation to warranties on
consumer products
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 section
399-ff to read as follows:
S 399-FF. WARRANTIES ON CONSUMER PRODUCTS. 1. AS USED IN THIS SECTION:
(A) "PRODUCT" MEANS ANY GOODS SOLD OR LEASED WHERE THE BUYER OR LESSEE
IS A NATURAL PERSON AND THE GOODS ARE PURCHASED OR LEASED PRIMARILY FOR
PERSONAL, FAMILY OR HOUSEHOLD PURPOSES, BUT SHALL NOT INCLUDE ANY NEW OR
USED MOTOR VEHICLE SUBJECT TO THE PROVISIONS OF SECTION ONE HUNDRED
NINETY-EIGHT-A OR ONE HUNDRED NINETY-EIGHT-B OF THIS CHAPTER.
(B) "LEASE" MEANS A LEASE OF GOODS WHICH IS FOR A TERM EXCEEDING FOUR
MONTHS.
2. IF A NEW PRODUCT DOES NOT CONFORM TO ALL APPLICABLE EXPRESS WARRAN-
TIES, AND THE CONSUMER REPORTS THE NONCONFORMITY TO THE SELLER, MANUFAC-
TURER OR ITS AUTHORIZED DEALER DURING THE TERM OF SUCH EXPRESS WARRAN-
TIES, THE SELLER, MANUFACTURER OR ITS AUTHORIZED DEALER SHALL MAKE SUCH
REPAIRS AS ARE NECESSARY TO CONFORM THE PRODUCT TO SUCH EXPRESS WARRAN-
TIES, NOTWITHSTANDING THE FACT THAT SUCH REPAIRS ARE MADE AFTER THE
EXPIRATION OF SUCH TERM.
3. IF THE SELLER, MANUFACTURER OR AUTHORIZED DEALERS ARE UNABLE TO
CONFORM THE PRODUCT TO ANY APPLICABLE EXPRESS WARRANTY BY REPAIRING OR
CORRECTING ANY DEFECT OR CONDITION WHICH SUBSTANTIALLY IMPAIRS THE USE
AND VALUE OF THE PRODUCT TO THE CONSUMER AFTER A REASONABLE NUMBER OF
ATTEMPTS, THE SELLER AT THE OPTION OF THE CONSUMER, SHALL REPLACE THE
PRODUCT WITH A NEW PRODUCT OR ACCEPT RETURN OF THE PRODUCT FROM THE
CONSUMER AND REFUND TO THE CONSUMER THE FULL PURCHASE PRICE INCLUDING
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10687-01-9
A. 7707 2
ALL COLLATERAL CHARGES. REFUNDS SHALL BE MADE TO THE CONSUMER, AND THE
LIENHOLDER IF ANY, AS THEIR INTERESTS MAY APPEAR. IT SHALL BE AN AFFIR-
MATIVE DEFENSE TO ANY CLAIM UNDER THIS SECTION (A) THAT THE ALLEGED
NONCONFORMITY DOES NOT SUBSTANTIALLY IMPAIR SUCH USE AND VALUE OR (B)
THAT THE NONCONFORMITY IS THE RESULT OF ABUSE, NEGLECT OR UNAUTHORIZED
MODIFICATIONS OR ALTERATIONS OF A PRODUCT BY A CONSUMER.
4. IT SHALL BE PRESUMED THAT A REASONABLE NUMBER OF ATTEMPTS HAVE BEEN
UNDERTAKEN TO CONFORM A PRODUCT TO THE APPLICABLE EXPRESS WARRANTIES, IF
(A) THE SAME NONCONFORMITY HAS BEEN SUBJECT TO REPAIR FOUR OR MORE TIMES
BY THE SELLER, MANUFACTURER OR AUTHORIZED DEALERS WITHIN THE EXPRESS
WARRANTY TERM, BUT SUCH NONCONFORMITY CONTINUES TO EXIST OR (B) THE
PRODUCT IS OUT OF SERVICE BY REASON OF REPAIR FOR A CUMULATIVE TOTAL OF
THIRTY OR MORE CALENDAR DAYS DURING SUCH TERM. THE TERM OF AN EXPRESS
WARRANTY, AND SUCH THIRTY-DAY PERIOD SHALL BE EXTENDED BY ANY PERIOD OF
TIME DURING WHICH REPAIR SERVICES ARE NOT AVAILABLE TO THE CONSUMER
BECAUSE OF WAR, INVASION, STRIKE, FIRE, FLOOD OR OTHER NATURAL DISASTER.
5. NOTWITHSTANDING ANY OTHER PROVISION OF LAW, WITH RESPECT TO ANY
CONSUMER TRANSACTION INVOLVING THE SALE OR LEASE OF NEW GOODS COSTING
MORE THAN TWO HUNDRED FIFTY DOLLARS, NO MANUFACTURER, SELLER OR LESSOR
SHALL:
(A) EXCLUDE, MODIFY OR OTHERWISE LIMIT ANY IMPLIED WARRANTY OF
MERCHANTABILITY, AS DEFINED IN SECTION 2-314 OF THE UNIFORM COMMERCIAL
CODE, OR FITNESS FOR A PARTICULAR PURPOSE, AS DEFINED IN SECTION 2-315
OF SUCH CODE; OR
(B) EXCLUDE, MODIFY OR OTHERWISE LIMIT ANY REMEDY PROVIDED BY LAW,
INCLUDING THE MEASURE OF DAMAGES AVAILABLE, FOR A BREACH OF ANY SUCH
IMPLIED WARRANTY.
6. ANY DISCLAIMER OR LIMITATION IN VIOLATION OF THIS SECTION SHALL BE
DEEMED CONTRARY TO PUBLIC POLICY AND SHALL BE UNENFORCEABLE AND VOID.
7. NOTWITHSTANDING THE OTHER PROVISIONS OF THIS SECTION, WHERE THE
GOODS TO BE SOLD ARE CONSPICUOUSLY IDENTIFIED AS "DAMAGED", "SECONDS",
"IRREGULAR", "FLOOR MODELS", "DEMONSTRATORS" OR WORDS TO THAT EFFECT,
AND ARE OFFERED FOR SALE AT A REDUCTION FROM THEIR BONA FIDE SELLING
PRICE, A MANUFACTURER, SELLER OR LESSOR MAY:
(A) SELL THE GOODS "AS IS", WITH NO WARRANTIES EXPRESS OR IMPLIED; OR
(B) SELL THE GOODS WITH AN EXPRESS WARRANTY BUT LIMIT THE IMPLIED
WARRANTY WITH RESPECT TO THE PARTICULAR IDENTIFIED DEFECT OR DEFECTS.
8. THE PURCHASER OF GOODS IN A CONSUMER TRANSACTION, AND ANY SUBSE-
QUENT TRANSFEREE, MAY BRING AN ACTION FOR BREACH OF WARRANTY AGAINST THE
MANUFACTURER, DISTRIBUTOR, SELLER OR LESSOR OF THE GOODS. LACK OF PRIVI-
TY BETWEEN THE CONSUMER AND THE PARTY AGAINST WHOM THE ACTION IS BROUGHT
SHALL NOT BE A DEFENSE TO SUCH ACTION.
9. IN THE EVENT AN ACTION IS BROUGHT AGAINST A RETAIL SELLER, THAT
SELLER MAY IMPLEAD THE DISTRIBUTOR AND/OR MANUFACTURER IN ACCORDANCE
WITH THE CIVIL PRACTICE LAW AND RULES, AND THE IMPLEADED PARTY SHALL
BEAR SUCH LIABILITY AS THE COURT MAY FIND.
10. IF A CONSUMER PREVAILS IN AN ACTION BASED UPON BREACH OF WARRANTY,
EXCEPT FOR PERSONAL INJURY ACTIONS, HE OR SHE MAY BE ALLOWED BY THE
COURT IN ITS DISCRETION TO RECOVER AS PART OF THE JUDGMENT A SUM EQUAL
TO THE AGGREGATE AMOUNT OF COST AND EXPENSES INCLUDING REASONABLE ATTOR-
NEYS' FEES.
11. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT OR ABRIDGE ANY
STATUTORY OR OTHER RIGHT OR REMEDY OF A CONSUMER AT LAW OR IN EQUITY.
12. WHENEVER THERE SHALL BE A VIOLATION OF THIS SECTION, AN APPLICA-
TION MAY BE MADE BY THE ATTORNEY GENERAL IN THE NAME OF THE PEOPLE OF
THE STATE OF NEW YORK TO A COURT OR JUSTICE HAVING JURISDICTION TO ISSUE
A. 7707 3
AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF NOT LESS THAN FIVE
DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF SUCH VIOLATIONS; AND IF
IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR JUSTICE THAT THE
DEFENDANT HAS, IN FACT, VIOLATED THIS SECTION, AN INJUNCTION MAY BE
ISSUED BY SUCH COURT OR JUSTICE, ENJOINING AND RESTRAINING ANY FURTHER
VIOLATION, WITHOUT REQUIRING PROOF THAT ANY PERSON HAS, IN FACT, BEEN
INJURED OR DAMAGED THEREBY. IN ANY SUCH PROCEEDING, THE COURT MAY MAKE
ALLOWANCES TO THE ATTORNEY GENERAL AS PROVIDED IN PARAGRAPH SIX OF
SUBDIVISION (A) OF SECTION EIGHTY-THREE HUNDRED THREE OF THE CIVIL PRAC-
TICE LAW AND RULES, AND DIRECT RESTITUTION. IN CONNECTION WITH ANY SUCH
PROPOSED APPLICATION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE PROOF
AND MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE SUBPOENAS IN
ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
13. IF A SELLER HAS ESTABLISHED OR IS A PARTICIPANT IN AN INFORMAL
DISPUTE SETTLEMENT PROCEDURE WHICH COMPLIES IN ALL RESPECTS WITH THE
PROVISIONS OF PART SEVEN HUNDRED THREE OF TITLE SIXTEEN OF THE CODE OF
FEDERAL REGULATIONS THE PROVISIONS OF SUBDIVISION THREE OF THIS SECTION
CONCERNING REFUNDS OR REPLACEMENT SHALL NOT APPLY TO ANY CONSUMER WHO
HAS NOT FIRST RESORTED TO SUCH PROCEDURE.
14. A SELLER, MANUFACTURER OR ITS AUTHORIZED DEALER SHALL CAUSE A
NOTICE TO BE GIVEN TO THE ORIGINAL PURCHASER OF A NEW PRODUCT OUTLINING
THE PROVISIONS OF THIS SECTION AND THE RIGHTS AND REMEDIES PROVIDED
THEREUNDER.
S 2. This act shall take effect on the one hundred twentieth day after
it shall have become a law, and shall apply to all products sold on or
after such date.