(4) "HOURS OF USE DEDUCTION FORMULA" MEANS THE HOURS OF USE AMOUNT
WHICH IS IN EXCESS OF FIFTY HOURS TIMES THE PURCHASE PRICE OR THE LEASE
PRICE, IF APPLICABLE, OF THE VESSEL DIVIDED BY FIVE HUNDRED HOURS.
(5) "LESSEE" MEANS ANY CONSUMER WHO LEASES A VESSEL PURSUANT TO A
WRITTEN LEASE AGREEMENT WHICH PROVIDES THAT THE LESSEE IS RESPONSIBLE
FOR REPAIRS TO SUCH VESSEL.
(6) "LEASE PRICE" MEANS THE AGGREGATE OF:
(I) THE LESSOR'S ACTUAL PURCHASE COST;
(II) THE FREIGHT COST, IF APPLICABLE;
(III) THE COST FOR ACCESSORIES, IF APPLICABLE;
(IV) ANY FEE PAID TO ANOTHER TO OBTAIN THE LEASE; AND
(V) AN AMOUNT EQUAL TO FIVE PERCENT OF THE LESSOR'S ACTUAL PURCHASE
COST AS PRESCRIBED IN SUBPARAGRAPH (I) OF THIS PARAGRAPH.
(7) "SERVICE FEES" MEANS THE PORTION OF A LEASE PAYMENT ATTRIBUTABLE
TO:
(I) AN AMOUNT FOR EARNED INTEREST CALCULATED ON THE RENTAL PAYMENTS
PREVIOUSLY PAID TO THE LESSOR FOR THE LEASED VESSEL AT AN ANNUAL RATE
EQUAL TO TWO POINTS ABOVE THE PRIME RATE IN EFFECT ON THE DATE OF THE
EXECUTION OF THE LEASE; AND
(II) ANY INSURANCE OR OTHER COSTS EXPENDED BY THE LESSOR FOR THE BENE-
FIT OF THE LESSEE.
(8) "CAPITALIZED COST" MEANS THE AGGREGATE DEPOSIT AND RENTAL PAYMENTS
PREVIOUSLY PAID TO THE LESSOR FOR THE LEASED VESSEL LESS SERVICE FEES.
(B) (1) IF A VESSEL WHICH IS SOLD IN THIS STATE DOES NOT CONFORM TO
ALL EXPRESS WARRANTIES DURING THE FIRST SEVENTY-FIVE HOURS OF OPERATION
OR DURING THE PERIOD OF TWO YEARS FOLLOWING THE DATE OF ORIGINAL DELIV-
ERY OF THE VESSEL TO SUCH CONSUMER, WHICHEVER IS THE EARLIER DATE, THE
CONSUMER SHALL DURING SUCH PERIOD REPORT THE NONCONFORMITY, DEFECT OR
CONDITION TO THE MANUFACTURER, ITS AGENT OR ITS AUTHORIZED DEALER. IF
THE NOTIFICATION IS RECEIVED BY THE MANUFACTURER'S AGENT OR AUTHORIZED
DEALER, THE AGENT OR DEALER SHALL WITHIN SEVEN DAYS FORWARD WRITTEN
NOTICE THEREOF TO THE MANUFACTURER BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, AND SHALL INCLUDE IN SUCH NOTICE A STATEMENT INDICATING
WHETHER OR NOT SUCH REPAIRS HAVE BEEN UNDERTAKEN. THE MANUFACTURER, ITS
AGENT OR ITS AUTHORIZED DEALER SHALL CORRECT SUCH NONCONFORMITY, DEFECT
OR CONDITION AT NO CHARGE TO THE CONSUMER, NOTWITHSTANDING THE FACT THAT
SUCH REPAIRS ARE MADE AFTER THE EXPIRATION OF SUCH PERIOD OF OPERATION
OR SUCH TWO YEAR PERIOD.
(2) IF A MANUFACTURER'S AGENT OR AUTHORIZED DEALER REFUSES TO UNDER-
TAKE REPAIRS WITHIN SEVEN DAYS OF RECEIPT OF THE NOTICE BY A CONSUMER OF
A NONCONFORMITY, DEFECT OR CONDITION PURSUANT TO PARAGRAPH ONE OF THIS
SUBDIVISION, THE CONSUMER MAY IMMEDIATELY FORWARD WRITTEN NOTICE OF SUCH
REFUSAL TO THE MANUFACTURER BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED.
THE MANUFACTURER OR ITS AUTHORIZED AGENT SHALL HAVE TWENTY DAYS FROM
RECEIPT OF SUCH NOTICE OF REFUSAL TO COMMENCE SUCH REPAIRS. IF WITHIN
SUCH TWENTY DAY PERIOD, THE MANUFACTURER OR ITS AUTHORIZED AGENT FAILS
TO COMMENCE SUCH REPAIRS, THE MANUFACTURER, AT THE OPTION OF THE CONSUM-
ER, SHALL REPLACE THE VESSEL WITH A COMPARABLE VESSEL OR ACCEPT RETURN
OF THE VESSEL FROM THE CONSUMER AND REFUND TO THE CONSUMER THE FULL
PURCHASE PRICE OR, IF APPLICABLE, THE LEASE PRICE AND ANY TRADE-IN
ALLOWANCE PLUS FEES AND CHARGES. SUCH FEES AND CHARGES SHALL INCLUDE BUT
NOT BE LIMITED TO ALL LICENSE FEES, REGISTRATION FEES AND ANY SIMILAR
GOVERNMENTAL CHARGES, LESS AN ALLOWANCE FOR THE CONSUMER'S USE OF THE
VESSEL IN EXCESS OF THE FIRST FIFTY HOURS OF OPERATION PURSUANT TO THE
HOURS OF USE DEDUCTION FORMULA AND A REASONABLE ALLOWANCE FOR ANY DAMAGE
NOT ATTRIBUTABLE TO NORMAL WEAR OR IMPROVEMENTS.
A. 3822 3
(C) (1) IF, WITHIN THE PERIOD SPECIFIED IN SUBDIVISION (B) OF THIS
SECTION, THE MANUFACTURER OR ITS AGENTS OR AUTHORIZED DEALERS ARE UNABLE
TO REPAIR OR CORRECT ANY DEFECT OR CONDITION WHICH SUBSTANTIALLY IMPAIRS
THE VALUE OF THE VESSEL TO THE CONSUMER AFTER A REASONABLE NUMBER OF
ATTEMPTS, THE MANUFACTURER, AT THE OPTION OF THE CONSUMER, SHALL REPLACE
THE VESSEL WITH A COMPARABLE VESSEL OR ACCEPT RETURN OF THE VESSEL FROM
THE CONSUMER AND REFUND TO THE CONSUMER THE FULL PURCHASE PRICE OR, IF
APPLICABLE, THE LEASE PRICE AND ANY TRADE-IN ALLOWANCE PLUS FEES AND
CHARGES. ANY RETURN OF A VESSEL MAY, AT THE OPTION OF THE CONSUMER, BE
MADE TO THE DEALER OR OTHER AUTHORIZED AGENT OF THE MANUFACTURER WHO
SOLD SUCH VESSEL TO THE CONSUMER OR TO THE DEALER OR OTHER AUTHORIZED
AGENT WHO ATTEMPTED TO REPAIR OR CORRECT THE DEFECT OR CONDITION WHICH
NECESSITATED THE RETURN AND SHALL NOT BE SUBJECT TO ANY FURTHER SHIPPING
CHARGES. SUCH FEES AND CHARGES SHALL INCLUDE BUT NOT BE LIMITED TO ALL
LICENSE FEES, REGISTRATION FEES AND ANY SIMILAR GOVERNMENTAL CHARGES,
LESS AN ALLOWANCE FOR THE CONSUMER'S USE OF THE VESSEL IN EXCESS OF THE
FIRST FIFTY HOURS OF OPERATION PURSUANT TO THE HOURS OF USE DEDUCTION
FORMULA AND A REASONABLE ALLOWANCE FOR ANY DAMAGE NOT ATTRIBUTABLE TO
NORMAL WEAR OR IMPROVEMENTS.
(2) A MANUFACTURER WHICH ACCEPTS RETURN OF THE VESSEL BECAUSE THE
VESSEL DOES NOT CONFORM TO ITS WARRANTY SHALL NOTIFY THE COMMISSIONER OF
MOTOR VEHICLES THAT THE VESSEL WAS RETURNED TO THE MANUFACTURER FOR
NONCONFORMITY TO ITS WARRANTY AND SHALL DISCLOSE, IN ACCORDANCE WITH THE
PROVISIONS OF SECTION ONE HUNDRED NINETY-EIGHT-E OF THIS ARTICLE, PRIOR
TO RESALE EITHER AT WHOLESALE OR RETAIL THAT IT WAS PREVIOUSLY RETURNED
TO THE MANUFACTURER FOR NONCONFORMITY TO ITS WARRANTY. REFUNDS SHALL BE
MADE TO THE CONSUMER AND LIENHOLDER, IF ANY, AS THEIR INTERESTS MAY
APPEAR ON THE RECORDS OF OWNERSHIP KEPT BY THE DEPARTMENT OF MOTOR VEHI-
CLES. REFUNDS SHALL BE ACCOMPANIED BY THE PROPER APPLICATION FOR CREDIT
OR REFUND OF STATE AND LOCAL SALES TAXES AS PUBLISHED BY THE DEPARTMENT
OF TAXATION AND FINANCE AND BY A NOTICE THAT THE SALES TAX PAID ON THE
PURCHASE PRICE, LEASE PRICE OR PORTION THEREOF BEING REFUNDED IS REFUND-
ABLE BY THE COMMISSIONER OF TAXATION AND FINANCE IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION (F) OF SECTION ELEVEN HUNDRED THIRTY-NINE OF
THE TAX LAW. IF APPLICABLE, REFUNDS SHALL BE MADE TO THE LESSOR AND
LESSEE AS THEIR INTERESTS MAY APPEAR ON THE RECORDS OF OWNERSHIP KEPT BY
THE DEPARTMENT OF MOTOR VEHICLES, AS FOLLOWS: THE LESSEE SHALL RECEIVE
THE CAPITALIZED COST AND THE LESSOR SHALL RECEIVE THE LEASE PRICE LESS
THE AGGREGATE DEPOSIT AND RENTAL PAYMENTS PREVIOUSLY PAID TO THE LESSOR
FOR THE LEASED VESSEL. THE TERMS OF THE LEASE SHALL BE DEEMED TERMINATED
CONTEMPORANEOUSLY WITH THE DATE OF THE ARBITRATOR'S DECISION AND AWARD
AND NO PENALTY FOR EARLY TERMINATION SHALL BE ASSESSED AS A RESULT THER-
EOF. REFUNDS SHALL BE ACCOMPANIED BY THE PROPER APPLICATION FORM FOR
CREDIT OR REFUND OF STATE AND LOCAL SALES TAX AS PUBLISHED BY THE
DEPARTMENT OF TAXATION AND FINANCE AND A NOTICE THAT THE SALES TAX PAID
ON THE LEASE PRICE OR PORTION THEREOF BEING REFUNDED IS REFUNDABLE BY
THE COMMISSIONER OF TAXATION AND FINANCE IN ACCORDANCE WITH THE
PROVISIONS OF SUBDIVISION (F) OF SECTION ELEVEN HUNDRED THIRTY-NINE OF
THE TAX LAW.
(3) IT SHALL BE AN AFFIRMATIVE DEFENSE TO ANY CLAIM UNDER THIS SECTION
THAT:
(I) THE NONCONFORMITY, DEFECT OR CONDITION DOES NOT SUBSTANTIALLY
IMPAIR SUCH VALUE; OR
(II) THE NONCONFORMITY, DEFECT OR CONDITION IS THE RESULT OF ABUSE,
NEGLECT OR UNAUTHORIZED MODIFICATIONS OR ALTERATIONS OF THE VESSEL.
A. 3822 4
(D) IT SHALL BE PRESUMED THAT A REASONABLE NUMBER OF ATTEMPTS HAVE
BEEN UNDERTAKEN TO CONFORM A VESSEL TO THE APPLICABLE EXPRESS WARRAN-
TIES, IF:
(1) THE SAME NONCONFORMITY, DEFECT OR CONDITION HAS BEEN SUBJECT TO
REPAIR FOUR OR MORE TIMES BY THE MANUFACTURER OR ITS AGENTS OR AUTHOR-
IZED DEALERS WITHIN THE FIRST SEVENTY-FIVE HOURS OF OPERATION OR DURING
THE PERIOD OF TWO YEARS FOLLOWING THE DATE OF ORIGINAL DELIVERY OF THE
VESSEL TO A CONSUMER, WHICHEVER IS THE EARLIER DATE, BUT SUCH NONCON-
FORMITY, DEFECT OR CONDITION CONTINUES TO EXIST; OR
(2) THE VESSEL IS OUT OF SERVICE BY REASON OF REPAIR OF ONE OR MORE
NONCONFORMITIES, DEFECTS OR CONDITIONS FOR A CUMULATIVE TOTAL OF THIRTY
OR MORE CALENDAR DAYS DURING EITHER PERIOD, WHICHEVER IS THE EARLIER
DATE.
(E) THE TERM OF AN EXPRESS WARRANTY, THE TWO YEAR WARRANTY PERIOD AND
THE THIRTY DAY OUT OF SERVICE PERIOD SHALL BE EXTENDED BY ANY TIME
DURING WHICH REPAIR SERVICES ARE NOT AVAILABLE TO THE CONSUMER BECAUSE
OF A WAR, INVASION, STRIKE, FIRE, FLOOD OR OTHER NATURAL DISASTER.
(F) NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT THE RIGHTS OR REME-
DIES WHICH ARE OTHERWISE AVAILABLE TO A CONSUMER UNDER ANY OTHER LAW.
(G) IF A MANUFACTURER HAS ESTABLISHED AN INFORMAL DISPUTE SETTLEMENT
MECHANISM, SUCH MECHANISM SHALL COMPLY IN ALL RESPECTS WITH THE
PROVISIONS OF THIS SECTION AND THE PROVISIONS OF SUBDIVISION (C) OF THIS
SECTION CONCERNING REFUNDS OR REPLACEMENT SHALL NOT APPLY TO ANY CONSUM-
ER WHO HAS NOT FIRST RESORTED TO SUCH MECHANISM. IN THE EVENT THAT AN
ARBITRATOR IN SUCH AN INFORMAL DISPUTE MECHANISM AWARDS A REFUND OR
REPLACEMENT VESSEL, HE OR SHE SHALL NOT REDUCE THE AWARD TO AN AMOUNT
LESS THAN THE FULL PURCHASE PRICE OR THE LEASE PRICE, IF APPLICABLE, OR
A VESSEL OF EQUAL VALUE, PLUS ALL FEES AND CHARGES EXCEPT TO THE EXTENT
SUCH REDUCTIONS ARE SPECIFICALLY PERMITTED UNDER SUBDIVISION (C) OF THIS
SECTION.
(H) A MANUFACTURER SHALL HAVE UP TO THIRTY DAYS FROM THE DATE THE
CONSUMER NOTIFIES THE MANUFACTURER OF HIS OR HER ACCEPTANCE OF THE
ARBITRATOR'S DECISION TO COMPLY WITH THE TERMS OF THAT DECISION. FAIL-
URE TO COMPLY WITH THE THIRTY DAY LIMITATION SHALL ALSO ENTITLE THE
CONSUMER TO RECOVER A FEE OF TWENTY-FIVE DOLLARS FOR EACH BUSINESS DAY
OF NONCOMPLIANCE UP TO FIVE HUNDRED DOLLARS. PROVIDED, HOWEVER, THAT
NOTHING CONTAINED IN THIS SUBDIVISION SHALL IMPOSE ANY LIABILITY ON A
MANUFACTURER WHERE A DELAY BEYOND THE THIRTY DAY PERIOD IS ATTRIBUTABLE
TO A CONSUMER WHO HAS REQUESTED A REPLACEMENT VESSEL BUILT TO ORDER OR
WITH OPTIONS THAT ARE NOT COMPARABLE TO THE VESSEL BEING REPLACED OR
OTHERWISE MADE COMPLIANCE IMPOSSIBLE WITHIN SAID PERIOD. IN NO EVENT
SHALL A CONSUMER WHO HAS RESORTED TO AN INFORMAL DISPUTE SETTLEMENT
MECHANISM BE PRECLUDED FROM SEEKING THE RIGHTS OR REMEDIES AVAILABLE BY
LAW.
(I) ANY AGREEMENT ENTERED INTO BY A CONSUMER FOR THE PURCHASE OF A NEW
VESSEL WHICH WAIVES, LIMITS OR DISCLAIMS THE RIGHTS SET FORTH IN THIS
SECTION SHALL BE VOID AS CONTRARY TO PUBLIC POLICY. SUCH RIGHTS SHALL
INURE TO A SUBSEQUENT TRANSFEREE OF SUCH VESSEL.
ANY PROVISION OF ANY AGREEMENT ENTERED INTO BY A CONSUMER FOR THE
PURCHASE OF A VESSEL WHICH INCLUDES AS AN ADDITIONAL COST FOR SUCH
VESSEL AN EXPENSE IDENTIFIED AS BEING FOR THE PURPOSE OF AFFORDING SUCH
CONSUMER HIS OR HER RIGHTS UNDER THIS SECTION, SHALL BE VOID AS CONTRARY
TO PUBLIC POLICY.
(J) ANY ACTION BROUGHT PURSUANT TO THIS SECTION SHALL BE COMMENCED
WITHIN FOUR YEARS OF THE DATE OF ORIGINAL DELIVERY OF THE VESSEL TO THE
CONSUMER.
A. 3822 5
(K) 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 REGU-
LATIONS PROMULGATED PURSUANT TO THIS SECTION BY THE ATTORNEY GENERAL.
UPON APPLICATION OF THE CONSUMER AND PAYMENT OF THE FILING FEE, ALL
MANUFACTURERS SHALL SUBMIT TO SUCH ALTERNATE ARBITRATION.
SUCH ALTERNATE ARBITRATION SHALL BE CONDUCTED BY A PROFESSIONAL ARBI-
TRATOR OR ARBITRATION FIRM APPOINTED BY AND UNDER REGULATIONS ESTAB-
LISHED BY THE 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 SEVEN-
TY-FIVE OF THE CIVIL PRACTICE LAW AND RULES.
(L) A COURT MAY AWARD REASONABLE ATTORNEY'S FEES TO A PREVAILING
PLAINTIFF OR TO A CONSUMER WHO PREVAILS IN ANY JUDICIAL ACTION OR
PROCEEDING ARISING OUT OF AN ARBITRATION PROCEEDING HELD PURSUANT TO
SUBDIVISION (K) OF THIS SECTION. IN THE EVENT A PREVAILING PLAINTIFF IS
REQUIRED TO RETAIN THE SERVICES OF AN ATTORNEY TO ENFORCE COLLECTION OF
AN AWARD GRANTED PURSUANT TO THIS SECTION, THE COURT MAY ASSESS AGAINST
THE MANUFACTURER REASONABLE ATTORNEY'S FEES FOR SERVICES RENDERED TO
ENFORCE COLLECTION OF SAID AWARD.
(M) (1) EACH MANUFACTURER SHALL REQUIRE THAT EACH INFORMAL DISPUTE
SETTLEMENT MECHANISM USED BY IT PROVIDE, AT A MINIMUM, THE FOLLOWING:
(I) THAT THE ARBITRATORS PARTICIPATING IN SUCH MECHANISM ARE TRAINED
IN ARBITRATION AND FAMILIAR WITH THE PROVISIONS OF THIS SECTION, THAT
THE ARBITRATORS AND CONSUMERS WHO REQUEST ARBITRATION ARE PROVIDED WITH
A WRITTEN COPY OF THE PROVISIONS OF THIS SECTION, TOGETHER WITH THE
NOTICE SET FORTH BELOW ENTITLED "NEW VESSEL LEMON LAW BILL OF RIGHTS",
AND THAT CONSUMERS, UPON REQUEST, ARE GIVEN AN OPPORTUNITY TO MAKE AN
ORAL PRESENTATION TO THE ARBITRATOR;
(II) THAT THE RIGHTS AND PROCEDURES USED IN THE MECHANISM COMPLY WITH
FEDERAL REGULATIONS PROMULGATED BY THE FEDERAL TRADE COMMISSION RELATING
TO INFORMAL DISPUTE SETTLEMENT MECHANISMS; AND
(III) THAT THE REMEDIES SET FORTH IN SUBDIVISION (C) OF THIS SECTION
ARE AWARDED IF, AFTER A REASONABLE NUMBER OF ATTEMPTS HAVE BEEN UNDER-
TAKEN UNDER SUBDIVISION (D) OF THIS SECTION TO CONFORM THE VESSEL TO THE
EXPRESS WARRANTIES, THE DEFECT OR NONCONFORMITY STILL EXISTS.
(2) THE FOLLOWING NOTICE SHALL BE PROVIDED TO CONSUMERS AND ARBITRA-
TORS AND SHALL BE PRINTED IN CONSPICUOUS TEN POINT BOLD FACE TYPE:
NEW VESSEL LEMON LAW BILL OF RIGHTS
(1) IN ADDITION TO ANY WARRANTIES OFFERED BY THE MANUFACTURER, YOUR
NEW VESSEL, IF PURCHASED AND REGISTERED IN NEW YORK STATE, IS WARRANTED
AGAINST ALL MATERIAL DEFECTS FOR SEVENTY-FIVE HOURS OF USE OR TWO YEARS,
WHICHEVER COMES FIRST.
(2) YOU MUST REPORT ANY PROBLEMS TO THE MANUFACTURER, ITS AGENT OR
AUTHORIZED DEALER.
(3) UPON NOTIFICATION, THE PROBLEM MUST BE CORRECTED FREE OF CHARGE.
(4) IF THE SAME PROBLEM CANNOT BE REPAIRED AFTER FOUR OR MORE
ATTEMPTS; OR IF YOUR VESSEL IS OUT OF SERVICE TO REPAIR A PROBLEM FOR A
TOTAL OF THIRTY DAYS DURING THE WARRANTY PERIOD; OR IF THE MANUFACTURER
OR ITS AGENT REFUSES TO REPAIR A SUBSTANTIAL DEFECT OR CONDITION WITHIN
TWENTY DAYS OF RECEIPT OF NOTICE SENT BY YOU TO THE MANUFACTURER BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED; THEN YOU MAY BE ENTITLED TO
EITHER A COMPARABLE VESSEL OR A REFUND OF YOUR PURCHASE PRICE, PLUS
LICENSE AND REGISTRATION FEES, MINUS AN HOURS OF USE ALLOWANCE ONLY IF
A. 3822 6
THE VESSEL HAS BEEN OPERATED MORE THAN FIFTY HOURS. SPECIAL NOTIFICA-
TION REQUIREMENTS MAY APPLY TO HOUSEBOATS.
(5) A MANUFACTURER MAY DENY LIABILITY IF THE PROBLEM IS CAUSED BY
ABUSE, NEGLECT OR UNAUTHORIZED MODIFICATIONS OF THE VESSEL.
(6) A MANUFACTURER MAY REFUSE TO EXCHANGE A COMPARABLE VESSEL OR
REFUND YOUR PURCHASE PRICE IF THE PROBLEM DOES NOT SUBSTANTIALLY IMPAIR
THE VALUE OF YOUR VESSEL.
(7) IF A MANUFACTURER HAS ESTABLISHED AN ARBITRATION PROCEDURE, THE
MANUFACTURER MAY REFUSE TO EXCHANGE A COMPARABLE VESSEL OR REFUND YOUR
PURCHASE PRICE UNTIL YOU FIRST RESORT TO THE PROCEDURE.
(8) IF THE MANUFACTURER DOES NOT HAVE AN ARBITRATION PROCEDURE, YOU
MAY RESORT TO ANY REMEDY BY LAW AND MAY BE ENTITLED TO YOUR ATTORNEY'S
FEES IF YOU PREVAIL.
(9) NO CONTRACT OR AGREEMENT CAN VOID ANY OF THESE RIGHTS.
(10) AS AN ALTERNATIVE TO THE ARBITRATION PROCEDURE MADE AVAILABLE
THROUGH THE MANUFACTURER, YOU MAY INSTEAD CHOOSE TO SUBMIT YOUR CLAIM TO
AN INDEPENDENT ARBITRATOR, APPROVED BY THE ATTORNEY GENERAL. YOU MAY
HAVE TO PAY A FEE FOR SUCH AN ARBITRATION. CONTACT YOUR LOCAL CONSUMER
OFFICE OR ATTORNEY GENERAL'S OFFICE TO FIND OUT HOW TO ARRANGE FOR INDE-
PENDENT ARBITRATION.
(3) ALL INFORMAL DISPUTE SETTLEMENT MECHANISMS SHALL MAINTAIN THE
FOLLOWING RECORDS:
(I) THE NUMBER OF PURCHASE PRICE AND LEASE PRICE REFUNDS AND VESSEL
REPLACEMENTS REQUESTED, THE NUMBER OF EACH AWARDED IN ARBITRATION, THE
AMOUNT OF EACH AWARD AND THE NUMBER OF AWARDS THAT WERE COMPLIED WITH IN
A TIMELY MANNER;
(II) THE NUMBER OF AWARDS WHERE ADDITIONAL REPAIRS OR A WARRANTY
EXTENSION WAS THE MOST PROMINENT REMEDY, THE AMOUNT OR VALUE OF EACH
AWARD, AND THE NUMBER OF SUCH AWARDS THAT WERE COMPLIED WITH IN A TIMELY
MANNER;
(III) THE NUMBER AND TOTAL DOLLAR AMOUNT OF AWARDS WHERE SOME FORM OF
REIMBURSEMENT FOR EXPENSES OR COMPENSATION FOR LOSSES WAS THE MOST PROM-
INENT REMEDY, THE AMOUNT OR VALUE OF EACH AWARD AND THE NUMBER OF SUCH
AWARDS THAT WERE COMPLIED WITH IN A TIMELY MANNER; AND
(IV) THE AVERAGE NUMBER OF DAYS FROM THE DATE OF A CONSUMER'S INITIAL
REQUEST TO ARBITRATE UNTIL THE DATE OF THE FINAL ARBITRATOR'S DECISION
AND THE AVERAGE NUMBER OF DAYS FROM THE DATE OF THE FINAL ARBITRATOR'S
DECISION TO THE DATE ON WHICH PERFORMANCE WAS SATISFACTORILY CARRIED
OUT.
(N) SPECIAL PROVISIONS APPLICABLE TO HOUSEBOATS:
(1) TO THE EXTENT THAT THE PROVISIONS OF THIS SUBDIVISION ARE INCON-
SISTENT WITH THE OTHER PROVISIONS OF THIS SECTION, THE PROVISIONS OF
THIS SUBDIVISION SHALL APPLY.
(2) FOR PURPOSES OF THIS SECTION, THE "MANUFACTURER OF A HOUSEBOAT" IS
ANY PERSON, PARTNERSHIP, CORPORATION, FACTORY BRANCH OR OTHER ENTITY
ENGAGED IN THE BUSINESS OF MANUFACTURING OR ASSEMBLING HOUSEBOATS FOR
SALE IN THIS STATE.
(3) THIS SECTION SHALL NOT APPLY TO NONCONFORMITIES, DEFECTS OR CONDI-
TIONS IN HOUSEBOAT SYSTEMS, FIXTURES, COMPONENTS, APPLIANCES,
FURNISHINGS OR ACCESSORIES THAT ARE RESIDENTIAL IN CHARACTER.
(4) IF, WITHIN THE PERIOD SPECIFIED IN SUBDIVISION (B) OF THIS
SECTION, THE MANUFACTURER OF A HOUSEBOAT OR ITS AGENTS OR ITS AUTHORIZED
DEALERS OR REPAIR SHOPS TO WHICH THEY REFER A CONSUMER ARE UNABLE TO
REPAIR OR CORRECT ANY DEFECT OR CONDITION WHICH SUBSTANTIALLY IMPAIRS
THE VALUE OF THE HOUSEBOAT TO THE CONSUMER AFTER A REASONABLE NUMBER OF
ATTEMPTS, THE HOUSEBOAT MANUFACTURER, AT THE OPTION OF THE CONSUMER,
A. 3822 7
SHALL REPLACE THE HOUSEBOAT WITH A COMPARABLE HOUSEBOAT OR ACCEPT RETURN
OF THE HOUSEBOAT FROM THE CONSUMER AND REFUND TO THE CONSUMER THE FULL
PURCHASE PRICE OR, IF APPLICABLE, THE LEASE PRICE AND ANY TRADE-IN
ALLOWANCE PLUS FEES AND CHARGES AS WELL AS THE OTHER FEES AND CHARGES
SET FORTH IN PARAGRAPH ONE OF SUBDIVISION (C) OF THIS SECTION.
(5) IF AN AGENT OR AUTHORIZED DEALER OF A HOUSEBOAT MANUFACTURER OR A
REPAIR SHOP TO WHICH THEY REFER A CONSUMER REFUSES TO UNDERTAKE REPAIRS
WITHIN SEVEN DAYS OF RECEIPT OF NOTICE BY A CONSUMER OF A NONCONFORMITY,
DEFECT OR CONDITION PURSUANT TO PARAGRAPH ONE OF SUBDIVISION (B) OF THIS
SECTION, THE CONSUMER MAY IMMEDIATELY FORWARD WRITTEN NOTICE OF SUCH
REFUSAL TO THE HOUSEBOAT MANUFACTURER BY CERTIFIED MAIL, RETURN RECEIPT
REQUESTED. THE HOUSEBOAT MANUFACTURER OR ITS AUTHORIZED AGENT OR A
REPAIR SHOP TO WHICH THEY REFER A CONSUMER SHALL HAVE TWENTY DAYS FROM
RECEIPT OF SUCH NOTICE OF REFUSAL TO COMMENCE SUCH REPAIRS. IF WITHIN
SUCH TWENTY DAY PERIOD, THE HOUSEBOAT MANUFACTURER OR ITS AUTHORIZED
AGENT OR REPAIR SHOP TO WHICH THEY REFER A CONSUMER, FAILS TO COMMENCE
SUCH REPAIRS, THE HOUSEBOAT MANUFACTURER, AT THE OPTION OF THE CONSUMER,
SHALL REPLACE THE HOUSEBOAT WITH A COMPARABLE HOUSEBOAT, OR ACCEPT
RETURN OF THE HOUSEBOAT FROM THE CONSUMER AND REFUND TO THE CONSUMER THE
FULL PURCHASE PRICE OR, IF APPLICABLE, THE LEASE PRICE, AND ANY TRADE-IN
ALLOWANCE OR OTHER CHARGES OR ALLOWANCES AS SET FORTH IN PARAGRAPH TWO
OF SUBDIVISION (B) OF THIS SECTION.
(6) IF WITHIN THE PERIOD SPECIFIED IN SUBDIVISION (B) OF THIS SECTION,
THE SAME NONCONFORMITY, DEFECT OR CONDITION IN A HOUSEBOAT HAS BEEN
SUBJECT TO REPAIR THREE TIMES OR A HOUSEBOAT HAS BEEN OUT OF SERVICE BY
REASON OF REPAIR FOR TWENTY-ONE DAYS, WHICHEVER OCCURS FIRST, THE
CONSUMER MUST HAVE REPORTED THIS TO THE HOUSEBOAT MANUFACTURER OR ITS
AUTHORIZED DEALER BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED PRIOR TO
INSTITUTING ANY PROCEEDING OR OTHER ACTION PURSUANT TO THIS SECTION;
PROVIDED, HOWEVER, THAT THE SPECIAL NOTIFICATION REQUIREMENTS OF THIS
PARAGRAPH SHALL ONLY APPLY IF THE MANUFACTURER OR ITS AUTHORIZED DEALER
PROVIDES A PRIOR WRITTEN COPY OF THE REQUIREMENTS OF THIS PARAGRAPH TO
THE CONSUMER AND RECEIPT OF THE NOTICE IS ACKNOWLEDGED BY THE CONSUMER
IN WRITING. IF THE CONSUMER WHO HAS RECEIVED NOTICE FROM THE MANUFACTUR-
ER FAILS TO COMPLY WITH THE SPECIAL NOTIFICATION REQUIREMENTS OF THIS
PARAGRAPH, ADDITIONAL REPAIR ATTEMPTS OR DAYS OUT OF SERVICE BY REASON
OF REPAIR SHALL NOT BE TAKEN INTO ACCOUNT IN DETERMINING WHETHER THE
CONSUMER IS ENTITLED TO A REMEDY PROVIDED IN PARAGRAPH FOUR OF THIS
SUBDIVISION. HOWEVER, ADDITIONAL REPAIR ATTEMPTS OR DAYS OUT OF SERVICE
BY REASON OF REPAIR THAT OCCUR AFTER THE CONSUMER COMPLIES WITH SUCH
SPECIAL NOTIFICATION REQUIREMENTS SHALL BE TAKEN INTO ACCOUNT IN MAKING
THAT DETERMINATION.
(7) NOTHING IN THIS SECTION SHALL IN ANY WAY LIMIT ANY RIGHTS, REME-
DIES OR CAUSES OF ACTION THAT A CONSUMER OR HOUSEBOAT MANUFACTURER MAY
OTHERWISE HAVE AGAINST THE MANUFACTURER OF THE HOUSEBOAT'S CHASSIS, OR
ITS PROPULSION AND OTHER COMPONENTS.
(O) AT THE TIME OF PURCHASE OR LEASE OF A VESSEL FROM AN AUTHORIZED
DEALER IN THIS STATE, THE MANUFACTURER SHALL PROVIDE TO THE DEALER OR
LEASEHOLDER, AND THE DEALER OR LEASEHOLDER SHALL PROVIDE TO THE CONSUMER
A NOTICE, PRINTED IN NOT LESS THAN EIGHT POINT BOLD FACE TYPE, ENTITLED
"NEW VESSEL LEMON LAW BILL OF RIGHTS". THE TEXT OF SUCH NOTICE SHALL BE
IDENTICAL WITH THE NOTICE REQUIRED BY PARAGRAPH TWO OF SUBDIVISION (M)
OF THIS SECTION.
S 198-E. MANDATORY DISCLOSURES BY SELLERS OF VESSELS PRIOR TO RESALE.
(A) CERTIFICATE OF PRIOR USE BY DEALER. UPON THE SALE OR TRANSFER OF
TITLE BY A DEALER OF ANY SECOND-HAND PASSENGER VESSEL, THE DEALER SHALL
A. 3822 8
EXECUTE AND DELIVER TO THE BUYER AN INSTRUMENT IN WRITING IN A FORM
PRESCRIBED BY THE COMMISSIONER OF MOTOR VEHICLES WHICH SHALL SET FORTH
THE NATURE OF THE PRINCIPAL PRIOR USE OF SUCH VESSEL WHICH HAS BEEN
REPURCHASED PURSUANT TO SECTION ONE HUNDRED NINETY-EIGHT-D OF THIS ARTI-
CLE, A SIMILAR STATUTE OF ANOTHER STATE, OR AN ARBITRATION OR ALTERNA-
TIVE DISPUTE PROCEDURE.
(B) CERTIFICATE OF PRIOR NONCONFORMITY BY MANUFACTURER OR DEALER. UPON
THE SALE OR TRANSFER OF TITLE BY A MANUFACTURER, ITS AGENT OR ANY DEALER
OF ANY SECOND-HAND VESSEL, PREVIOUSLY RETURNED TO A MANUFACTURER OR
DEALER FOR NONCONFORMITY TO ITS WARRANTY OR AFTER FINAL DETERMINATION,
ADJUDICATION OR SETTLEMENT PURSUANT TO SECTION ONE HUNDRED
NINETY-EIGHT-D OF THIS ARTICLE, THE MANUFACTURER OR DEALER SHALL EXECUTE
AND DELIVER TO THE BUYER AN INSTRUMENT IN WRITING IN A FORM PRESCRIBED
BY THE COMMISSIONER OF MOTOR VEHICLES SETTING FORTH THE FOLLOWING INFOR-
MATION IN TEN POINT, ALL CAPITAL TYPE: "IMPORTANT: THIS VESSEL WAS
RETURNED TO THE MANUFACTURER OR DEALER BECAUSE IT DID NOT CONFORM TO ITS
WARRANTY AND THE DEFECT OR CONDITION WAS NOT FIXED WITHIN A REASONABLE
TIME AS PROVIDED BY NEW YORK LAW." SUCH NOTICE THAT A VESSEL WAS
RETURNED TO THE MANUFACTURER OR DEALER BECAUSE IT DID NOT CONFORM TO ITS
WARRANTY SHALL ALSO BE CONSPICUOUSLY PRINTED ON THE VESSEL'S CERTIFICATE
OF TITLE.
(C) VIOLATION. THE FAILURE OF A DEALER TO DELIVER TO THE BUYER THE
INSTRUMENT REQUIRED BY THIS SECTION OR THE DELIVERY OF AN INSTRUMENT
CONTAINING FALSE OR MISLEADING INFORMATION SHALL CONSTITUTE A VIOLATION
OF THIS SECTION.
(D) PRIVATE REMEDY. A CONSUMER INJURED BY A VIOLATION OF THIS SECTION
MAY BRING AN ACTION TO RECOVER DAMAGES. JUDGMENT MAY BE ENTERED FOR
THREE TIMES THE ACTUAL DAMAGES SUFFERED BY A CONSUMER OR ONE HUNDRED
DOLLARS, WHICHEVER IS GREATER. A COURT ALSO MAY AWARD REASONABLE ATTOR-
NEYS' FEES TO A PREVAILING PLAINTIFF BUYER.
(E) (1) ACTION BY THE ATTORNEY GENERAL. UPON ANY VIOLATION OF THIS
SECTION, AN APPLICATION 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 AN INJUNCTION, AND UPON NOTICE TO THE DEFENDANT OF
NOT LESS THAN FIVE DAYS, TO ENJOIN AND RESTRAIN THE CONTINUANCE OF THE
VIOLATION. IF IT SHALL APPEAR TO THE SATISFACTION OF THE COURT OR
JUSTICE THAT THE DEFENDANT HAS VIOLATED THIS SECTION, AN INJUNCTION MAY
BE ISSUED BY THE 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.
(2) WHENEVER THE COURT SHALL DETERMINE THAT A VIOLATION OF THIS
SECTION HAS OCCURRED, IT MAY IMPOSE A CIVIL PENALTY OF NOT MORE THAN ONE
THOUSAND DOLLARS FOR EACH VIOLATION. IN CONNECTION WITH AN APPLICATION
MADE UNDER THIS SUBDIVISION, THE ATTORNEY GENERAL IS AUTHORIZED TO TAKE
PROOF AND TO MAKE A DETERMINATION OF THE RELEVANT FACTS AND TO ISSUE
SUBPOENAS IN ACCORDANCE WITH THE CIVIL PRACTICE LAW AND RULES.
S 3. Subdivision 3 of section 399-w of the general business law, as
added by chapter 372 of the laws of 1995, is amended to read as follows:
3. This section shall not apply to: (a) rental purchase agreements as
regulated by article eleven of the personal property law [and], (b)
motor vehicle rentals under paragraph two of subdivision (a) of section
one hundred ninety-eight-a and paragraph two of subdivision a of section
one hundred ninety-eight-b of this chapter, AND (C) VESSEL RENTALS UNDER
A. 3822 9
PARAGRAPH TWO OF SUBDIVISION (A) OF SECTION ONE HUNDRED NINETY-EIGHT-D
OF THIS CHAPTER.
S 4. Subdivision (f) of section 1139 of the tax law, as amended by
chapter 12 of the laws of 1990, is amended to read as follows:
(f) Where a consumer returns a motor vehicle OR VESSEL to and receives
a refund of the full purchase price, capitalized cost or a portion ther-
eof from the manufacturer in accordance with the provisions of section
one hundred ninety-eight-a [or], subdivision five of section three
hundred ninety-six-p, OR SECTION ONE HUNDRED NINETY-EIGHT-D of the
general business law, the commissioner [of taxation and finance] shall
refund to such consumer any tax paid by the consumer on the amount of
the purchase price, capitalized costs and fees and charges refunded by
the manufacturer which is not in excess of the receipts and propor-
tionate to the receipts subject to tax. All the provisions of this
section shall apply to the refund authorized by this subdivision,
provided, however, that a request for a refund under this subdivision
shall be timely made if such request for a refund is made within three
years of the date the refund from the manufacturer is received by a
consumer pursuant to subdivision (c) of section one hundred ninety-
eight-a OR SUBDIVISION (C) OF SECTION ONE HUNDRED NINETY-EIGHT-D of the
general business law and further provided that interest allowable under
subdivision (d) of this section shall be payable from the date which is
three months after the date the application for refund in processible
form is received.
S 5. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law; provided that the
commissioners of motor vehicles, taxation and finance, and parks, recre-
ation and historic preservation and the attorney general are authorized
to promulgate any and all rules and regulations and take any other meas-
ures necessary to implement the provisions of this act on its effective
date on or before such date.