Wheelchair lemon law guide

What is the purpose of the New York Wheelchair Lemon Law?

The Wheelchair Lemon Law (General Business Law §670) provides a legal remedy for consumers who are buyers or lessees of new wheelchairs that turnout to be lemons. If the wheelchair does not conform to the terms of the written warranty and the manufacturer or its authorized dealer is unable to repair the wheelchair after a reasonable number of attempts during the first year, the consumer can choose a full refund or a comparable new replacement wheelchair. A copy of the law may be found in the back of this booklet.

Are all wheelchairs covered?

Yes. The law covers all wheelchairs, including “demos”, purchased, leased or transferred in New York to a consumer.

Who is protected?

The law is designed to protect “consumers”. A consumer is defined as (a) the purchaser of a wheelchair, if the wheelchair was purchased from a wheelchair dealer or manufacturer for purposes other than resale; (b) a person to whom the wheelchair is transferred for purposes other than resale, if the transfer occurs before the expiration of the applicable express warranty; (c) a person who may enforce the warranty; (d) a person who leases a wheelchair from a wheelchair lessor under a written lease; or (e) state government agencies, subscribers to article 43 of the insurance law (Non-Profit Medical Indemnity), corporations, subscribers of organizations organized under article 44 of the public health law (HMOs) and programs governed by title 11 of article 5 of the social services law (“Medical Assistance for Needy Persons”).

Are leased wheelchairs covered?

Yes. 

Does the manufacturer have to give an express warranty?

Yes. The warranty covers both parts and labor. The duration of the warranty must be no less than one year from the date of first delivery to the consumer. In the absence of a written warranty, the manufacturer is deemed to have given such a one year warranty.

What is the manufacturer’s duty to repair under this law?

With respect to wheelchairs covered by the law, a duty is imposed upon the manufacturer to repair, free of charge and without any deductible, any nonconformity to the warranty. The 4 consumer must notify the manufacturer or its authorized dealer of such nonconformity and makes the wheelchair available for repair within the first year from the date of first delivery. Once the consumer gives timely notice of the nonconformity and makes the wheelchair available for repairs within the first year, the manufacturer may not charge for the repairs, regardless of when the repairs are performed. Any consumer who has been charged for such repairs or a deductible during such period should contact the Attorney General’s office.

What is a “nonconformity”?

A “nonconformity” is a condition or defect covered by warranty that substantially impairs the use, value or safety of the wheelchair. It does not include a condition or defect that is the result of abuse, neglect or unauthorized modification or alteration of the wheelchair by a consumer.

What should consumers do if they become aware of a problem with their wheelchair during the first year?

The consumer should immediately report any nonconformity either directly to the manufacturer or to its authorized dealer and make the wheelchair available for repairs. Unless otherwise advised by their lawyer, consumers should continue to make their monthly payments if the wheelchair is financed or leased. Failure to do so may adversely affect a consumer’s lemon law rights.

What are a consumer’s rights if the manufacturer does not meet its duty to repair?

If the problem is not repaired after a reasonable number of attempts, and if the problem substantially impairs the value of the wheelchair to the consumer, the manufacturer, at the consumer’s option, must either refund the full purchase or offer a comparable new replacement wheelchair.

Does the law specify the number of required repair attempts?

Yes. It is presumed that there have been a reasonable number of attempts to repair a problem if, within the express warranty period but no less than one year from the original delivery date, either: (1) the same problem has been subject to repair three or more times and the problem continues to exist after the third repair attempt, or (2) the wheelchair is out of service for at least 30 days.

What constitutes “substantial impairment”?

It will depend on the facts in each case. In general, the consumer’s complaint must be about a serious problem. For example, a defect in the engine which makes the wheelchair inoperable is clearly substantial.

Are there any exceptions to the manufacturer’s duty to refund or replace?

The manufacturer does not have a duty to make a refund or provide a replacement wheelchair if: (1) the problem does not substantially impair the use, value or safety of the wheelchair to the consumer, or (2) the problem is a result of abuse, neglect or unauthorized modification or alteration of the wheelchair by a consumer.

How can consumers prove they own a lemon?

The consumer must be able to document repeated repair attempts. Therefore, it is very important to keep careful records of all complaints and copies of all work orders, repair bills and correspondence.

What should be included in the consumer’s refund?

The refund should include the full purchase price plus any expenses paid by the consumer in connection with the repair, including shipping charges and the cost of obtaining an alternative wheelchair or other device to ease mobility, less a reasonable amount for use.

What may the manufacturer deduct for use?

The manufacturer may deduct a reasonable amount for use which the law defines as an amount obtained by multiplying the full purchase price of the wheelchair by a fraction, the denominator of which is 1,825 and the numerator of which is equal to the number of days that the wheelchair was driven before the consumer first reported the problem to the dealer or manufacturer. For example, if a defective wheelchair which cost $6000 was used for 100 days before the consumer reported the defect to the manufacturer or its authorized dealer, the deduction for use would be $328.77 (6,000multiplied by 100 divided by 1,825) or, in this example, about $3.29/day.

Is it different if the purchase was financed?

When the wheelchair is financed, the consumer is also entitled to recover any finance charges paid in connection with the purchase of the wheelchair. However, the entire refund is not paid to the consumer. Rather, the refund must be divided between the consumer and the lender (the bank or finance company). Generally, the lender will calculate how much is still owed by the consumer and apply the refund to that amount. The balance of the refund will go to the consumer.

If the wheelchair was leased, how is the consumer’s refund calculated?

When the wheelchair is leased, the refund due from the manufacturer is divided between the consumer/lessee and the leasing company(the company to which the consumer makes lease 6 payments) according to a formula provided by the law. The amount to be refunded to the consumer/lessee is the total of the lessee’s payments plus any expenses paid by the consumer in connection with the repair including the cost of obtaining an alternative wheelchair or other device to ease mobility, less a reasonable amount for use.

For example, suppose that a consumer leases a new wheelchair, the purchase price of which is $8000, under a three-year lease, makes a $1000downpayment, and pays a monthly lease payment of $150. After making four monthly payments and after 120 days, the lessee reports a problem to the manufacturer and is granted a refund under the lemon law. The refund due the consumer will be $1,074 calculated as follows:

Deposit                                              $1,000
Plus monthly payments                  + 600 (4 x 150)
                                                         $1,600

Less allowance for use                      – 526
Total Refund                                    $1,074

 

What is the lessor’s refund?

The leasing company’s portion of the refund is the “current value of the written lease”. That term is defined by the law as: the amount which the consumer/lessee would have had to pay under the lease for the period remaining after its early termination, plus any expense, including any prepayment penalty, which the lessor has incurred as a result of the early termination and the return of the wheelchair (the dealer’s “early termination costs”)plus the value of the wheelchair at the expiration date of the lease, if stated in the lease, less any expenses the lessor avoids as a result of the early termination (the lessor’s “early termination savings”), including any interest charges, if financed, or the difference between the amount the lessee would have had to pay under the lease for the period remaining after its early termination and the present value of that amount.

For example, given the same facts as above and that the lease provided that the wheelchair would be worth$2000at the end of the lease and assuming the difference between receiving the balance of monthly payments as they become due and the present value of all those payments is $500, the refund due the lessor is $6,300 calculated as follows:

Remaining balance                     $4,800 (32 x 150)
Plus residual value                     + 2,000 
Plus costs to lessor                    + 0
Less savings                               – 500
Refund to lessor                       $6,300

 

If the wheelchair is leased, does a determination that it is a lemon terminate the lease?

Yes. Once a determination has been made under the lemon law that a wheelchair is a lemon and a refund is issued, the lease is terminated. As a result, no early termination penalties under the lease may be collected.

How can a consumer’s rights under the lemon law be enforced?

A consumer has the choice of either participating in the state-run arbitration program or suing the manufacturer directly in court.

If the consumer wins in court, what can he recover?

The law directs the court to award a successful consumer twice the amount of any monetary loss together with costs, disbursements and reasonable attorney’s fees, and any equitable relief that the court determines is appropriate.

What is an arbitration proceeding?

An arbitration proceeding is much less complicated, time consuming and expensive than going to court. The arbitration hearing is informal and strict rules of evidence do not apply. Arbitrators, rather than judges, listen to each side, review the evidence and render a decision.

What arbitration program is available to consumers in New York?

Consumers may participate in the New York State Wheelchair Lemon Law Arbitration Program (“New York Program”), established by the Wheelchair Warranty law. The New York Program is administered by the NYS Dispute Resolution Association (“NYSDRA”) under regulations issued by the Attorney General. (A copy of the regulations may be found in the back of this booklet.) Decisions under the New York Program are binding on both parties.

How does a consumer participate in the New York program?

A consumer must first complete a “Request for Arbitration” form, which may be obtained from any of the Attorney General’s regional offices. (A list of the Attorney General’s regional offices may be found at the end of this booklet). The completed form must be returned to the Attorney General’s Wheelchair Arbitration Unit, New York State Office of the Attorney General, 28 Liberty Street, New York, NY 10005. A consumer may request reasonable accommodations, in accordance with the Americans With Disabilities Act, including access and auxiliary aids and services, by completing a “Request for Reasonable Accommodations” form provided by the New York Attorney General’s Office.

How does the New York program operate?

The Attorney General’s office will review the form to determine whether the consumer’s claim is eligible under the wheelchair warranty law to be heard by an arbitrator. If accepted, the form will be forwarded to the NYSDRA, the Program Administrator, for processing. The Association will then ask the consumer to pay the required filing fee. Upon receiving the filing fee, the Association will appoint an arbitrator and schedule a hearing to be held within 35 days. If rejected, the form will be returned to the consumer together with an explanation for the rejection. A complete step-by-step description of the New York Program may be found beginning later in this booklet.

Who are the arbitrators?

The arbitrators are volunteers who have been trained in the wheelchair warranty law by the Attorney General’s office and in arbitration procedures by the NYSDRA.

Is a consumer entitled to an oral hearing?

Yes. Consumers have an absolute right to an oral hearing. At an oral hearing, both the consumer and the manufacturer’s representative will have the opportunity to present their case in person before an arbitrator.

May a consumer choose a hearing on documents only?

Yes. A consumer may elect to have a hearing on documents only by indicating this preference on the “Request for Arbitration” form. Ina “documents only ”hearing, both sides must present their positions in writing. If a consumer requests a “documents only ”hearing, the manufacturer may object, in which case an oral hearing will be scheduled.

May a stenographic record or tape recording be made of the hearing?

Yes. Any party to the arbitration may arrange, on its own, for a stenographic record or a tape recording of the hearing at their own expense even if the other party objects. If a stenographer or tape recorder will be used, reasonable prior notice, through the Case Administrator, must be given to the other party.

Can a hearing be held by telephone?

Yes. Either party to the arbitration may request to present its case by telephone provided adequate prior notice is given to the administrator and to the other party. A successful consumer may recover, as part of the award, any telephone costs incurred in such a hearing.

Does the consumer need an attorney for the arbitration hearing?

No. The New York Program is designed to be accessible to consumers without the need for an attorney. However, both the consumer and the manufacturer may use an attorney or any other person to assist them if they so choose.

How should consumers prepare for the hearing?

Consumers should keep a copy of their “Request for Arbitration” form to use as a guide in preparing for the hearing. The form contains much of the information needed at the hearing. In addition, consumers are advised to:

• Gather Documents. Bring to the hearing records of everything pertaining to the purchase and the problem, including a copy of the purchase contract (invoice), all correspondence, work orders, and warranty.
• Organize Records. Keep records in chronological order. This will serve as a guide in presenting the history of the problem.
• Prepare an Outline. This will help to present and remember relevant information.
• Prepare Questions to Ask the Manufacturer’s Representative. This will assure that no important question is omitted.
• Arrange for Witnesses. The presence of witnesses, especially mechanics or technicians, or their sworn statements may be helpful to document the problem.

What if consumers do not have all the documents?

Upon payment of the filing fee and prior to the hearing, consumers may make a written request to the arbitrator, through the Case Administrator, to direct the manufacturer to provide any necessary documents or other information. Consumers may also request the arbitrator to subpoena documents or witnesses to appear at the hearing. A sample letter requesting documents may be found later in this booklet.

How should consumers present their case at the hearing?

At the hearing, consumers should present their case in a clear, organized and concise manner. Consumers are advised to:

• State the specific nature of the problem.
• State any conversations with the dealer’s or manufacturer’s representatives.
• Describe and document each repair attempt.
• Describe and document any new developments which may have occurred since the “Request for Arbitration” form was submitted.
• Offer proof of each point, especially those the manufacturer may dispute.
• Present any witness that may provide relevant information.
• State the relief requested.
• At the end of the presentation, briefly summarize the facts discussed.

What happens if either party fails to appear at the hearing?

Unless the hearing has been properly rescheduled, if one party, either the manufacturer or the consumer, fails to appear or be represented at an oral hearing, the arbitrator will nevertheless conduct the hearing and issue a decision based upon the evidence presented and any documents contained in the file. If neither party appears or is represented at a scheduled oral hearing, the case is closed and the parties are notified accordingly.

When can a consumer expect a decision?

A consumer may expect a decision, generally, within 10 days of the hearing. Sometimes, however, the arbitrator requests that additional documents or information be submitted, in which case the decision may be delayed.

Can a consumer recover the filing fee and telephone costs?

Yes. If the consumer is successful, the arbitrator’s decision in favor of the consumer must include the return of the filing fee as well as any telephone costs incurred if the hearing was conducted by telephone.

When must a manufacturer comply with an arbitrator’s decision?

Within forty days. In most cases, the manufacturer’s representative will contact the consumer within this period to arrange for the return of the wheelchair in exchange for either a refund or a replacement wheelchair.

How is a return of the wheelchair implemented?

The recommended procedure is to have both the consumer and the manufacturer’s representative agree on a mutually convenient time and place to exchange the wheelchair for a refund or replacement.

What happens if the manufacturer does not comply with the arbitrator’s award?

If the manufacturer does not comply with the award, a consumer can enforce the arbitrator’s decision through the courts by bringing an action to confirm the award. This action must be commenced within one year of receipt of the decision. Consumers should consult a private attorney if they wish to pursue this remedy. If the consumer is successful, the Court will convert the arbitrator’s award into a court judgment and may award reasonable attorney’s fees.

Under what circumstances can an arbitrator’s decision be modified?

The grounds for modification are very limited. Generally, awards may be modified only to correct a miscalculation or a technical mistake in the award. For example, a modification may be requested where the use deduction was miscalculated or the filing fee was omitted from the refund.

When must a request for modification be made?

Either party may seek a modification by the arbitrator of the award by written application to the Administrator within 20 days of receiving the award. The other party will be given the opportunity to object to the modification. The arbitrator must rule on all such requests within 30 days after the request is received. To modify an award after 20 days, an application to a court may be necessary.

Can an arbitrator’s decision be challenged?

Either the consumer or the manufacturer may commence a lawsuit to challenge an arbitrator’s award within 90 days of receipt of the award. However, the grounds for such challenges are limited by law. Generally, the courts will uphold an arbitrator’s award if it is supported by evidence and is grounded in reason. Reasonable attorneys fees may be awarded by the court to a consumer who is successful in challenging or defending an arbitration award.

What role will the Attorney General’s office or the administrator play if a manufacturer challenges an award in court?

Neither the Attorney General’s Office nor the Administrator is authorized to represent an individual consumer in such a challenge; this is the responsibility of the consumer’s own attorney. In some cases, where the manufacturer raises constitutional issues or questions of general application regarding the wheelchair warranty law, the Attorney General’s Office may seek to intervene in the case to present its position to the court. The Administrator’s role is finished when the arbitrator’s award is sent to the parties.

Can consumers apply for another hearing under the New York program if they lost the first one?

A decision under the New York Program is binding on both parties. However, if new facts arise after a hearing was held, the consumer may reapply for a new hearing based on the new facts. For example, if a consumer originally applied to the New York Program based on three unsuccessful repair attempts (Jan. 5, Jan. 25, Feb. 10) and lost the arbitration, he or she may reapply if there were three additional repair attempts not previously considered even if the repair attempts were for the same problem.

Does the wheelchair lemon law limit any of the other legal remedies already available to consumers?

No. The wheelchair lemon law adds to the consumer’s arsenal of existing legal remedies. These legal remedies can be explained by the consumer’s attorney.

Can a consumer’s rights be waived under this law?

No. Any contract clause which seeks to waive any of the consumer’s rights under the wheelchair lemon law is void.

How is a buyer protected when purchasing a wheelchair previously returned to the manufacturer under the wheelchair lemon law?

No wheelchair, returned to the manufacturer pursuant to this law, or in another State pursuant to a similar law of that State, may be sold or leased again in New York unless full disclosure of the reasons for the return is made to the prospective buyer or lessee.

Where can a consumer get help or further information regarding the wheelchair lemon law?

A consumer may contact any of the offices of the Attorney General listed at the end of this booklet or consult a lawyer.