NY State Senate Bill 2011-S6214

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 13, 2012	referred to consumer protection

2011-S6214 (ACTIVE) - Details

Current Committee:: Senate Consumer Protection
Law Section:: General Business Law
Laws Affected:: Add Art 16-A §§266 - 269-i, Gen Bus L
Versions Introduced in Other Legislative Sessions:: 2009-2010: S4142
2013-2014: S3227

2011-S6214 (ACTIVE) - Summary

Enacts a "Computer Lemon Law" to protect purchasers of defective computer equipment; makes definitions; provides for notice to purchaser, coverage and coverage period, records, and civil actions for enforcement; preserves the rights of such computer purchaser to pursue other remedies and rights under any other law, contract or warranty.

2011-S6214 (ACTIVE) - Sponsor Memo

                                BILL NUMBER:S6214

TITLE OF BILL:
An act
to amend the general business law, in relation to protecting the
purchasers of defective computer equipment

SUMMARY OF PROVISIONS:
This bill would add Article 16-A to the general business law, also
titled the "Computer Lemon Law," which will require written notice to
purchasers regarding purchasers' rights, of computer equipment at
time of sale or lease of such equipment. This statement must be
signed in acknowledgement by the purchaser, and must include the name
and version number of all hardware and operating software purchased.
The purchaser is entitled to effective repairs by the manufacturer
for any nonconformity that arises, at no cost to the purchaser during
a minimum coverage period of 24 months. Equipment must be repaired in
a timely manner either on-site or off, but with shipping or related
charges billed to the manufacturer.

Repairs must be guaranteed by the manufacturer for two years. If the
repairs are ineffective the purchaser may return for further repair
at no cost, or may be refunded by the manufacturer, or may receive a
new computer/equipment of equal or greater value from the
manufacturer.

No computer device returned in accordance with this section may be
resold in this state. A manufacturer who violates any provision of
this article may be subject to civil action by the purchaser to
recover damages not to exceed six-thousand dollars in addition to
litigation fees and replacement of ineffective computer devices.

JUSTIFICATION:
Marketing of computer equipment has expanded to the point where
unscrupulous sale and leasing tactics have become common. Many
consumers have complained that they were promised the best, but when
they receive a defective product and contact computer companies for a
remedy, they are greeted with long telephone holds, followed by hour
long tests to be administered by the consumer and then several weeks
worth of waiting to mail the computer to the company to hopefully fix
the problem. Sometimes these consumers have are left with no choice
than to keep a product that is less than what was promised.

When these types of situations occur with a recently purchased
vehicle in New York, the consumer is covered by the Lemon Law with
rights including the return of the vehicle for the full purchase
price. The computer consumer should have similar formal,
across-the-board protection in purchasing costly
equipment, should there be nonconformity in the equipment once the
purchaser takes possession.

EXISTING LAW:
None.

FISCAL IMPLICATIONS:
None to the state.

EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date on which it shall have become a law.

2011-S6214 (ACTIVE) - Bill Text download pdf

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

                                  6214

                            I N  S E N A T E

                            January 13, 2012
                               ___________

Introduced  by  Sen.  PARKER -- 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
PROGRAMMING FOR A COMPUTER, WHETHER PREINSTALLED OR PURCHASED  SEPARATE-
LY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06438-01-1

S. 6214                             2

  (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
PROCEDURES OR ATTEMPTS REPAIRS, INCLUDING BUT  NOT  LIMITED  TO  PARTIAL

S. 6214                             3

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. 6214                             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.

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Senate Bill S6214

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Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

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2011-S6214 (ACTIVE) - Details

2011-S6214 (ACTIVE) - Summary

2011-S6214 (ACTIVE) - Sponsor Memo

2011-S6214 (ACTIVE) - Bill Text download pdf

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Sponsored By

Kevin S. Parker

Archive: Last Bill Status - In Senate Committee Consumer Protection Committee

Actions

2011-S6214 (ACTIVE) - Details

2011-S6214 (ACTIVE) - Summary

2011-S6214 (ACTIVE) - Sponsor Memo

2011-S6214 (ACTIVE) - Bill Text download pdf

Comments