CONSUMER LAW 2001 UPDATE
THE CONSUMER'S GUIDE TO SMALL CLAIMS COURT AND HOW TO USE FEDERAL AND NEW YORK STATE CONSUMER PROTECTION STATUTES
•CONSUMER LAW 2006 UPDATE
• CONSUMER LAW 2005 UPDATE
•CONSUMER LAW 2003 UPDATE
•CONSUMER LAW 2000 UPDATE
Prior to becoming a Westchester County Court Judge I served for six years as a Judge on the Yonkers City Court, the busiest Court in Westchester County, New York State. My favorite Court was Small Claims Court where I handled nearly 3000 cases and published sixty-three decisions in the New York Law Journal2Those consumer law and tenant law decisions are categorized by subject matter and are available on my web site3as are many of my over 190 published consumer law articles. 4During 2000 and 2001 I have served as an Acting Family Court Judge and have published seven family law decisions5and two family law articles. 6
My approach in Small Claims Court was to bring the parties into Court and ask both sides a series of questions helping each to formulate their positions. More often than not consumers had little understanding of the rights and remedies available to them under a host of Federal and New York State consumer protection statutes.
Small Claims Courts
New York State's Small Claims Courts provide consumers with a cost effective legal forum in which to seek money damages up to $3,000.00. The philosophical genesis of Small Claims Courts was "' equal access to justice. '"7It was hoped that Judges or arbitrators would be able to expeditiously do " substantial justice " without the burden of motion practice, discovery, rigid evidentiary rules and specific pleading requirements. 8There is an expanding body of Small Claims Court law now available to consumers, attorneys, arbitrators and Judges including manuals9, law journals10, articles11, and web sites12.
General Business Law § 349: Deceptive Business Practices
Many small claims arise from defective or misrepresented goods and services. Small Claims Courts provide a cost effective forum and allow consumers to enforce their rights under a variety of consumer protection statutes 13The most popular of New York State's many consumer protection statutes is General Business Law § 349 [ " GBL § 349 " ] which prohibits deceptive and misleading business practices.
GBL § 349 allows consumers to sue for $50.00 or actual damages which may be trebled up to $1,000.00 upon a finding of a " wil(ful) or know(ing) violat(ion). "14Attorneys fees and costs may be recovered as well. As long as the deceptive business practice has " a broad impact on consumers at large 15and constitutes " consumer-oriented conduct "16proving a violation of GBL § 349 is straight forward. As stated in BNI N.Y. v. DeSanto "17 (GBL § 349 ) is a broad, remedial statute... directed towards giving consumers a powerful remedy. The elements of a violation of ( GBL § 349 ) are (1) proof that the practice was deceptive or misleading in a material respect and (2) proof that plaintiff was injured...There is no requirement under ( GBL § 349 ) that plaintiff prove that defendant's practices and acts were intentional, fraudulent or even reckless. Nor does plaintiff have to prove reliance upon defendant's deceptive practices ".
Threshold Of Deception
Initially GBL § 349 had a low threshold for a finding of deception, i.e., misleading and deceptive acts directed to " the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions " [Guggenheimer v. Ginzburg18 Recently, the Court of Appeals raised the threshold to those misleading and deceptive acts " likely to mislead a reasonable consumer acting reasonably under the circumstances " [ Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A19] .
Deceptive Business Practices
GBL § 349 applies to a broad spectrum of goods and services [ Karlin v. IVF America 20 ( GBL 349... " on (its) face appl(ies) to virtually all economic activity and (its) application has been correspondingly broad...The reach of (this) statute ' provides needed authority to cope with the numerous, ever-changing types of false and deceptive business practices which plague consumers in our State '" )].
Types Of Goods & Services Covered
The types of goods and services which GBL 349 applies to include the following:
- (1)Life Insurance Policies [ Gaidon v. Guardian Life Insurance Co. & Goshen v. Mutual Life Insurance Co.21( misrepresentations that " out-of-pocket premium payments ( for life insurance policies ) would vanish within a stated period of time " )];
- (2)In Vitro Fertilization [ Karlin v. IVF America, Inc. 22( misrepresentations of in vitro fertilization rates of success )];
- (3)Real Estate Sales [ Gutterman v. Romano Real Estate23( misrepresenting that a house with a septic tank was connected to a city sewer system ); See also Board of Mgrs, of Bayberry Greens Condominium v. Bayberry Greens Associates24( deceptive advertisement and sale of condominium units ); B.S.L. One Owners Corp. v. Key Intl. Mfg. Inc.25( deceptive sale of shares in a cooperative corporation ); Breakwaters Townhouses Ass'n. v. Breakwaters of Buffalo, Inc.26 ( condominium units ); Latiuk v. Faber Const. Co.27( deceptive design and construction of home ); Polonetsky v. Better Homes Depot, Inc.28( N.Y.C. Administrative Code §§ 20-700 et seq ( Consumer Protection Law ) applies to business of buying foreclosed homes and refurbishing and reselling them as residential properties )];
- (4) Wedding Singers [ Bridget Griffin-Amiel v. Frank Terris Orchestras 29 ( the bait and switch30 of a " 40-something crooner " for the " 20-something " Paul Rich " who promised to deliver a lively mix of pop hits, rhythm-and-blues and disco classics " ) ];
- (5) Furniture Sales [ Petrello v. Winks Furniture31 ( misrepresenting a sofa as being covered in Ultrasuede HP and protected by a 5 year ); Walker v. Winks Furniture32 ( falsely promising to deliver furniture within one week ); Filpo v. Credit Express Furniture Inc. 33 ( failing to inform Spanish speaking consumers of a three day cancellation period ); Colon v. Rent-A-Center, Inc.34 ( rent-to-own furniture; " an overly inflated cash price " for purchase may violate GBL § 349 ) ];
- (6 )Professional Networking [P BNI New York Ltd. v. DeSanto35 ( enforcing an unconscionable membership fees promissory note ) ];
- (7) Clothing Sales [Baker v. Burlington Coat Factory 36 ( refusing to refund purchase price in cash for defective and shedding fake fur ) ];
- (8 )Pyramid Schemes [C.T.V. Inc. v. Curlen37 ( selling bogus " Beat The System Program " certificates ); Brown v. Hambric38 ( selling misrepresented instant travel agent credentials and educational services ) ];
- (9 )Aupair Services [Oxman v. Amoroso39 ( misrepresenting the qualifications of an abusive aupair to care for handicapped children ) ];
- (10) Exhibitions and Conferences [ Sharknet Inc. v. Telemarketing, NY Inc.40 ( misrepresenting length of and number of persons attending Internet exhibition ) ];
- (11 )Employee Scholarship Programs [C ambridge v. Telemarketing Concepts, Inc.41 ( refusing to honor agreement to provide scholarship to employee ) ];
- (12) Defective Automobile Ignition Switches [ Ritchie v. Empire Ford Sales, Inc.42 ( dealer liable for damages to used car that burns up 4 ˝years after sale) ];
- (13) Automobile Liability Insurance [ Rubinoff v. U.S. Capitol Insurance Co.43 ( automobile insurance company fails to provide timely defense to insured )];
- (14) Defective Brake Shoes [Giarrantano v. Midas Muffler44( Midas Muffler fails to honor brake shoe warranty ) ];
- (15) Travel Services [Meachum v. Outdoor World Corp45 ( misrepresenting availability and quality of vacation campgrounds; Pelegrini v. Landmark Travel Group 46 ( travel agent misrepresents refundability of tour vouchers ) ];
- (16) Apartment Rentals [ Bartolomeo v. Runco and Anilesh v. Williams47 ( renting illegal apartments ); Yochim v. McGrath48 ( renting illegal sublets )];
- (17) Home Inspections [Ricciardi v. Frank d/b/a/ InspectAmerica Enginerring,P.C.49( civil engineer liable for failing to discover wet basement ) ];
- (18 )Door-To-Door Sales [ Rossi v. 21st Century Concepts, Inc.50 ( selling misrepresented and overpriced pots and pans )];
- (19) Educational Services [ Andre v. Pace University51( failing to deliver computer programming course for beginners ); Brown v. Hambric 52( failure to deliver travel agent education program )];
- (20) Internet Marketing [People v. Lipsitz53( failing to deliver purchased magazine subscriptions ) ];
- (21) Excessive & Unlawful Bail Bond Fees [McKinnon v. International Fidelity Insurance Co.54( misrepresentation of expenses in securing bail bonds )];
- (22) Attorney Advertising [ People v. Law Offices of Andrew F. Capoccia55(" The alleged conduct the instant lawsuit seeks to enjoin and punish is false, deceptive and fraudulent advertising practices " ); Aponte v. Raychuk56]deceptive attorney advertisements [ " Divorce, Low Fee, Possible 10 Days, Green Card " ] violated New York City Consumer Protection Law ( Administrative Code of City of New York §§ 20-70C et seq )];
- (23) Health Insurance [Makastchian v. Oxford Health Plans, Inc.57( practice of terminating health insurance policies without providing 30 days notice violated terms of policy and was a deceptive business practice because subscribers may have believed they had health insurance when coverage had already been canceled )];
- (24) Sports Nutrition Products [Morelli v. Weider Nutrition Group, Inc.58,( manufacturer of Steel Bars, a high-protein nutrition bar, misrepresented the amount of fat, vitamins, minerals and sodium therein )];
- (25) Credit Cards [Broder v. MBNA Corporation59( credit card company misrepresented the application of its low introductory annual percentage rate to cash advances )];
- (26) Wireless Telephones [Naevus International, Inc. v. AT&T Corp.60( wireless phone subscribers seek damages for" frequent dropped calls, inability to make or receive calls and failure to obtain credit for calls that were involuntarily disconnected " )];
- (27) Mortgages [Walts v. First Union Mortgage Corp61( consumers induced to pay for private mortgage insurance beyond requirements under New York Insurance Law § 6503 ); Negrin v. Norwest Mortgage, Inc.62( mortgagors desirous of paying off mortgages charged illegal and unwarranted fax and recording fees )];
- (28) Budget Planning [People v. Trescha Corp.63( company misrepresented itself as a budget planner which " involves debt consolidation and...negotiation by the budget planner of reduced interest rates with creditors and the cancellation of the credit cards by the debtors...the debtor agrees to periodically send a lump sum payment to the budget planner who distributes specific amounts to the debtor's creditors " )].
Table Of Other Useful Consumer Protection
In addition to GBL § 349 there are a variety of consumer protection statutes available to resolve small claims arising from common consumer transactions. These include the following;
- (1) Real Property Law § 235-b [ Warranty Of Habitability ];
- (2) Personal Property Law §§ 425-431 [ Door-To-Door Sales ];
- (3) 47 U.S.C. § 227 [ Federal Telephone Consumer Protection Act Of 1991 ];
- (4) General Business Law § 399-p [ Restrictions On Automated Telemarketing Devices ];
- (5) General Business Law § 399-pp [ Telemarketing And Consumer Fraud And Abuse Prevention Act ];
- (6) General Business Law § 399-z [ No Telemarketing Sales Call Registry ];
- (7) General Business Law § 359-fff [ Pyramid Schemes ];
- (8) Civil Practice Law And Rules § 3015(e)[ Licensing Of Home Improvement Contractors];
- (9) 15 U.S.C. §§ 1601-1665 [ Truth In Lending Act ];
- (10) General Business Law § 201 [ Overcoats Lost At Restaurants ];
- (11) General Business Law § 218-a [ Retail Refund Policies ];
- (12) General Business Law § 350 [ False Advertising ];
- (13) General Business Law § 396-u [ Merchandise Delivery Dates ];
- (14) General Business Law § 617(2)(a) [ New Parts Warranties ];
- (15) General Business Law § 198-a [ New Car Lemon Law ];
- (16) General Business Law § 198-b [ Used Car Lemon Law ];
- (17) U.C.C. §§ 2-314, 2-318 [ Warranty Of Merchantability ];
- (18) Vehicle & Traffic Law § 417 [ Warranty Of Serviceability ];
- (19) General Business Law § 396-p(5) [ New Car Purchase Contract Disclosure Requirements ];
- (20) 15 U.S.C. §§ 2301 et seq [ Magnuson-Moss Warranty Act ];
- (21) General Business Law §§ 752 et seq [ Sale Of Dogs And Cats ];
- (22) Personal Property Law §§ 500 et seq [ Rental Purchase Agreements ].
Warranty Of HabitabilityTenants in Spatz v. Axelrod Management 64and coop owners in Seecharin v. Radford Court Apartment Corp.65brought actions for damages done to their apartments by the negligence of landlords, managing agents or others, i.e., water damage from external or internal sources. Such a claim may invoke Real Property Law § 235-b [ " RPL § 235-b " ] , a statutory warranty of habitability in every residential lease " that the premises...are fit for human habitation ". RPL § 235-b " has provided consumers with a powerful remedy to encourage landlords to maintain apartments in a decent, livable condition "66and may be used affirmatively in a claim for property damage 67or as a defense in a landlord's action for unpaid rent . 68Recoverable damages may include apartment repairs, loss of personal property and discomfort and disruption. 69
Door-To-Door Sales" Some manufacturers...favor door-to-door sales ( because ) ...the selling price may be several times greater than...in a more competitive environment (and)...consumers are less defensive...in their own homes and...are, especially, susceptible to high pressure sales tactics "70 Personal Property Law [ " PPL " ] §§ 425-431 "' afford(s) consumers a ' cooling-off' period to cancel contracts which are entered into as a result of high pressure door-to-door sales tactics'"71 PPL § 428 provides consumers with rescission rights should a salesman fail to complete a Notice Of Cancellation form on the back of the contract. PPL § 428 has been used by consumers in Rossi v. 21st Century Concepts, Inc. 72 [ misrepresented pots and pans costing $200.00 each ],Kozlowski v. Sears73 [ vinyl windows hard to open, did not lock properly and leaked ] and in Filpo v. Credit Express Furniture Inc74[ unauthorized design and fabric color changes and defects in overpriced furniture ]. Rescission is also appropriate if the Notice of Cancellation form is not in Spanish for Spanish speaking consumers. 75A failure to " comply with the disclosure requirements of PPL 428 regarding cancellation and refund rights " is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs. 76 In addition PPL 429(3) provides for an award of attorneys fees and costs. 77
TelemarketingIt is quite common for consumers to receive unsolicited phone calls at their homes from mortgage lenders, credit card companies and the like. Many of these phone calls originate from automated telephone equipment or automatic dialing-announcing devices, the use of which is regulated by Federal and New York State consumer protection statutes.
Federal Telemarketing RuleOn the Federal level the Telephone Consumer Protection Act 78 [ TCPA ] prohibits users of automated telephone equipment " to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without express consent of the called party "79 The purpose of the TCPA is to provide " a remedy to consumers who are subjected to telemarketing abuses and ' to encourage consumers to sue and obtain monetary awards based on a violation of the statute. ' "80 The TCPA may be used by consumers in New York State Courts including Small Claims Court [Kaplan v. Democrat & Chronicle81;Shulman v. Chase Manhattan Bank82 ( TCPA provides a private right of action which may be asserted in New York State Courts )]. Some Federal Courts have held that the states have exclusive jurisdiction over private causes of action brought under the TCPA 83while some scholars have complained that " Congress intended for private enforcement actions to be brought by pro se plaintiffs in small claims court and practically limited enforcement to such tribunals. "84 Under the TCPA consumers may recover their actual monetary loss for each violation or up to $500.00 in damages, whichever is greater. In Kaplan v. Life Fitness Center85 the Court found " that plaintiff is entitled to damages of $500 for the TCPA violation ( and ) an additional award of damages of $500 for violation of the federal regulation. " The Court may treble damages upon a showing that defendant willfully and knowingly violated "86 the Act.
New York's Telemarketing RulesOn the State level, General Business Law § 399-p [ " GBL § 399-p " ] " also places restrictions on the use of automatic dialing-announcing devices and placement of consumer calls in telemarketing "87 such as requiring the disclosure of the nature of the call and the name of the person on whose behalf the call is being made. A violation of GBL § 399-p allows recovery of actual damages or $50.00, whichever is greater, including trebling upon a showing of a wilful violation. Consumers aggrieved by telemarketing abuses may sue in Small Claims Court and recover damages under both the TCPA and GBL § 399-p Kaplan v. First City Mortgage88 ( consumer sues telemarketer in Small Claims Court and recovers $500.00 for a violation of TCPA and $50.00 for a violation of GBL § 399-p ); Kaplan v. Life Fitness Center 89 consumer recovers $1,000.00 for violations of TCPA and $50.00 for a violation of GBL § 399-p )].
No Telemarketing Sales Call RegistryUnder General Business Law § 399-z [ " GBL § 399-z " ], known as the " Do Not Call " rule, consumers may prevent telemarketers from making unsolicited telephone calls by filing their names and phone numbers with a statewide registry. " No telemarketer...may make...any unsolicited sales calls to any customer more than thirty days after the customer's name and telephone number(s)... appear on the then current quarterly no telemarketing sales calls registry ". Violations of this rule may subject the telemarketer to a maximum fine of $2,000.00. In addition " [n]othing ( in this rule ) shall be construed to restrict any right which any person may have under any other statute or at common law ".
Telemarketing Abuse Prevention Act
Under General Business Law § 399-pp [ " GBL § 399-pp " ] known as the Telemarketing And Consumer Fraud And Abuse Prevention Act, telemarketers must register and pay a $500 fee [ GBL § 399-pp(3) ] and post a $25,000 bond " payable in favor of ( New York State ) for the benefit of any customer injured as a result of a violation of this section " [ GBL § 399-pp(4) ]. The certificate of registration may be revoked and a $1,000 fine imposed for a violation of this section and other statutes including the Federal TCPA. The registered telemarketer may not engage in a host of specific deceptive [ GBL § 399-pp(6)(a) ] or abusive [ GBL § 399-pp(7) ] telemarketing acts or practices, must provide consumers with a variety of information [ GBL § 399-pp(6)(b)] and may telephone only between 8:00AM to 9:00PM. A violation of GBL § 399-pp is also a violation of GBL § 349 and also authorizes the imposition of a civil penalty of not less than $1,000 nor more than $2,000.
Pyramid Schemes"' ( a pyramid scheme ) is one in which a participant pays money...and in return receives (1) the right to sell products, and (2) the right to earn rewards for recruiting other participants into the scheme. '"90Pyramid schemes are sham money making schemes which prey upon consumers eager for quick riches. General Business Law § 359-fff [ " GBL § 359-fff " ] prohibits " chain distributor schemes " or pyramid schemes voiding the contracts upon which they are based. Pyramid schemes were used in Brown v. Hambric91to sell travel agent education programs [ " There is nothing new ' about NU-Concepts. It is an old scheme, simply, repackaged for a new audience of gullible consumers mesmerized by the glamour of travel industry and hungry for free or reduced cost travel services " ] and in C.T.V., Inc. v. Curlen92to sell bogus " Beat The System Program " certificates. While, at least, one Court has found that only the Attorney General may enforce a violation of GBL 359-fff 93other Courts have found that GBL 359-fff gives consumers a private right of action 94a violation of which also constitutes a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs 95.
Home Improvement ContractorsHomeowners often hire home improvement contractors to repair or improve their homes or property. Home improvement contractors must, at least, be licensed by the Department of Consumer Affairs of New York City, Westchester County, Suffolk County, Rockland County, Putnam County and Nassau County if they are to perform services in those Counties [ New York Civil Practice Law And Rules § 3015(e) [ " CPLR § 3015(e) " ] ]. Should the home improvement contractor be unlicenced he will be unable to sue the homeowner for non-payment for services rendered [Routier v. Waldeck96( " The Home Improvement Business provisions...were enacted to safeguard and protect consumers against fraudulent practices and inferior work by those who would hold themselves out as home improvement contractors " );Cudahy v. Cohen97( unlicenced home improvement contractor unable to sue homeowner in Small Claims Courts for unpaid bills)].
Home improvement contractors who are unlicenced prior to commencing a lawsuit against a homeowner may not cure this standing defect by obtaining a license prior to a hearing in Court [Chosen v. Syz98( " unlicenced contractor is barred any recovery for breach of contract or in quantum meruit. This regardless of whether the work performed was satisfactory, whether the failure to obtain the license was willful or, even, whether the homeowner knew of the lack of the license and planned to take advantage of its absence. "99Zandell v. Zerbe 100( home improvement contractor must have a valid license when the work is done and when a lawsuit in commenced against the homeowner )].
Truth In LendingConsumers may sue in Small Claims Court for a violation of the Federal Truth In Lending Act, 15 U.S.C.A. §§ 1601-1665 [ " TILA " ] and recover appropriate damages [Community Mutual Savings Bank v. Gillen 101( borrower counterclaims in Small Claims Court for violation of TILA and is awarded rescission of loan commitment with lender and damages of $400.00 )]. " TILA ( protects consumers ) from the inequities in their negotiating position with respect to credit and loan institutions...( TILA ) requir(es) lenders to provide standard information as to costs of credit including the annual percentage rate, fees and requirements of repayment...( TILA ) is liberally construed in favor of the consumer...The borrower is entitled to rescind the transaction ' until midnight of the third business day following the consummation of the transaction or the delivery of the information and rescission forms required ...together with a statement containing the material disclosures required... whichever is later...The consumer can opt to rescind for any reasons, or for no reason "102TILA has been held to preempt Personal Property Law provisions governing retail instalment contracts and retail credit agreements [Albank, FSB v. Foland 103].
Lost Overcoats" For over 100 years consumers have been eating out at restaurants, paying for their meals and on occasion leaving without their simple cloth overcoats...mink coats...mink jackets...racoon coats...Russian sable fur coats...leather coats and, of course, cashmere coats..."104 In DiMarzo v. Terrace View 105restaurant personnel encouraged a patron to remove his overcoat and then refused to respond to a claim after the overcoat disappeared from their coatroom. In response to a consumer claim arising from a lost overcoat the restaurant may seek to limit its liability to $200.00 as provided for in General Business Law § 201 [ " GBL § 201 " ]. However, a failure to comply with the strict requirements of GBL § 201 [ "' as to property deposited by...patrons in the...checkroom of any...restaurant, the delivery of which is evidenced by a check or receipt therefor and for which no fee or charge is exacted...'"106] allows the consumer to recover actual damages upon proof of a bailment and/or negligence 107
No Cash Refund PoliciesSome stores refuse to refund the consumer's purchase price in cash upon the return of a product [ " Merchandise, in New Condition, May be Exchanged Within 7 Days of Purchase for Store Credit...No Cash Refunds or Charge Credits "108 In Baker v. Burlington Coat Factory Warehouse109a clothing retailer refused to refund the consumer's cash payment when she returned a shedding and defective fake fur two days after purchase. General Business Law § 218-a [ " GBL § 218-a " ] permits retailers to enforce a no cash refund policy if there are a sufficient number of signs notifying consumers of " its refund policy including whether it is ' in cash, or as credit or store credit only '"110If, however, the product is defective and there has been a breach of the implied warranty of merchantability [ U.C.C. § 2-314 ] then consumers may recover all appropriate damages including the purchase price in cash [ U.C.C. § 2-714 ] 111. In essence, U.C.C. § 2-314 preempts 112 GBL § 218-a [Baker v. Burlington Coat Factory Warehouse113 ( defective shedding fake fur );Dudzik v. Klein's All Sports114 ( defective baseball bat ) ]. It has been held that a " failure to inform consumers of their statutory right to a cash or credit card charge refund when clothing is defective and unwearable " is a violation of GBL 349 which provides for treble damages, attorneys fees and costs.115
False AdvertisingConsumers who rely upon false advertising and purchase defective goods or services may sue for misrepresentation. In addition to common law claims for fraudulent misrepresentation the consumer may assert a violation of General Business Law § 350 [ " GBL § 350 " ] [ Card v. Chase Manhattan Bank 116( bank falsely misrepresented that its LifePlus Credit Insurance plan would pay off credit card balances were the user to become unemployed )]. GBL § 350 prohibits false advertising which " means advertising, including labeling, of a commodity...if such advertising is misleading in a material respect...( covers )....representations made by statement, word, design, device, sound...but also... advertising ( which ) fails to reveal facts material "117. GBL § 350 covers a broad spectrum of misconduct [Karlin v. IVF America118 ( " ( this statute ) on ( its ) face appl(ies) to virtually all economic activity and ( its ) application has been correspondingly broad " )]. Proof of a violation of GBL 350 is simple, i.e., " the mere falsity of the advertising content is sufficient as a basis for the false advertising charge " [People v. Lipsitz119 ( magazine salesman violated GBL § 350; " ( the ) ( defendant's ) business practice is generally ' no magazine, no service, no refunds " although exactly the contrary as promised " ].
Furniture Delivery Dates" In order to induce a sale furniture and appliance store salesman often misrepresent the quality, origin, price, terms of payment and delivery date of ordered merchandise "120 In Walker v. Winks Furniture121a salesman promised delivery of new furniture within one week and then refused to return the consumer's purchase price when she canceled two weeks later unless she paid a 20% cancellation penalty. GBL § 396-u protects consumers from unscrupulous salesmen who promise that merchandise will be delivered by specific date when, in fact, it is not. A violation of GBL § 396-u [ failing to disclose an estimated delivery date in writing when the order is taken [ GBL § 396-u(2) ], failing to advise of a new delivery date and giving the consumer the opportunity to cancel [ GBL § 396-u(2)(b) ], failing to honor the consumer's election to cancel without imposing a cancellation penalty [ GBL § 396-u(s)(c) ], failing to make a full refund within two weeks of a demand without imposing a cancellation penalty [ GBL § 396-u(2)(d) ]] allows the consumer to rescind the purchase contract without incurring a cancellation penalty 122. A violation of GBL 396-u is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs 123In addition, GBL 396-u(7) provides for a trebling of damages upon a showing of a wilful violation of the statute 124.
Automotive Parts Warranties
" The extended warranty and new parts warranty business generates extraordinary profits for the retailers of cars, trucks and automotive parts and for repair shops. It has been estimated that no more than 20% of the people who buy warranties ever use them... Of the 20% that actually try to use their warranties... ( some ) soon discover that the real costs can easily exceed the initial cost of the warranty certificate "125. In Giarratano v. Midas Muffler126, Midas would not honor its brake shoe warranty unless the consumer agreed to pay for additional repairs found necessary after a required inspection of the brake system. General Business Law § 617(2)(a) [ " GBL § 617(2)(a) " ] protects consumers who purchase new parts or new parts' warranties from breakage or a failure to honor the terms and conditions of a warranty [ " If a part does not conform to the warranty...the initial seller shall make repairs as are necessary to correct the nonconformity "127, ]. A violation of GBL 617(2)(a) is a per se violation of GBL 349 which provides for treble damages, attorneys fees and costs 128
Cars, Cars, CarsThere are a variety of consumer protection statutes available to purchasers and lessees of automobiles, new and used. A comprehensive review of five of these statutes [ GBL § 198-b 129( Used Car Lemon Law ), express warranty 130 , implied warranty of merchantability 131 ( U.C.C. §§ 2-314, 2-318 ), Vehicle and Traffic Law [ V&T ] § 417, strict products liability 132 ] appears in Ritchie v. Empire Ford Sales, Inc.133a case involving a used 1990 Ford Escort which burned up 4 ˝ years after being purchased because of a defective ignition switch. A comprehensive review of two other statutes [ GBL § 198-a ( New Car Lemon Law ) and GBL § 396-p ( New Car Contract Disclosure Rules )] appears in Borys v. Scarsdale Ford, Inc.134 a case involving a new Ford Crown Victoria, the hood, trunk and both quarter panels of which had been negligently repainted prior to sale.
New Car Lemon LawNew York State's New Car Lemon Law [ GBL § 198-a ] provides that " If the same problem cannot be repaired after four or more attempts; Or if your car 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 within twenty days of receipt of notice sent by you...Then you are entitled to a comparable car or refund of the purchase price " [Borys v. Scarsdale Ford, Inc135 ]. Before commencing a lawsuit seeking to enforce the New Car Lemon Law the dealer must be given an opportunity to cure the defect [Chrysler Motors Corp. v. Schachner136 ( dealer must be afforded a reasonable number of attempts to cure defect )].
Used Car Lemon LawNew York State's Used Car Lemon Law [ GBL § 198-b ] provides limited warranty protection for ninety days or 4,000 miles, whichever comes first, for vehicles with odometer readings of less than 36,000 Cintron v. Tony Royal Quality Used Cars, Inc. 137( defective 1978 Chevy Malibu returned within thirty days and full refund awarded )]. Used car dealers must be given an opportunity to cure a defect before the consumer may commence a lawsuit enforcing his or her rights under the Used Car Lemon Law [Milan v. Yonkers Avenue Dodge, Inc. 138( dealer must have opportunity to cure defects in used 1992 Plymouth Sundance ) ].
The Used Car Lemon Law does not preempt other consumer protection statutes [Armstrong v. Boyce 139] and has been applied to used vehicles with coolant leaks [Fortune v. Scott Ford, Inc. 140], malfunctions in the steering and front end mechanism [Jandreau v. LaVigne . 141], and stalling and engine knocking Ireland v. J.L.'s Auto Sales, Inc. 142
Implied Warranty Of MerchantabilityBoth new and used cars carry with them an implied warranty of merchantability [ U.C.C. §§ 2-314, 2-318 ][Denny v. Ford Motor Company 143 ]. Although broader in scope than the Used Car Lemon Law the implied warranty of merchantability does have its limits, i.e., it is time barred four years after delivery [ U.C.C. § 2-725; Hull v. Moore Mobile Homes Stebra, Inc. 144 ( defective mobile home; claim time barred )] and the dealer may disclaim liability under such a warranty [ U.C.C. § 2-316 ] if such a disclaimer is written and conspicuous [Natale v. Martin Volkswagen, Inc.145 ( disclaimer not conspicuous )].
Warranty Of ServiceabilityUsed car buyers are also protected by Vehicle and Traffic Law § 417 [ " V&T § 417 " ] which requires used car dealers to inspect vehicles and deliver a certificate to buyers stating that the vehicle is in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery. V&T § 417 is a non-waiveable, nondisclaimable, indefinite, warranty of serviceability which has been liberally construed [ Barilla v. Gunn Buick Cadillac-GNC, Inc. 146; Ritchie v. Empire Ford Sales, Inc. 147 dealer liable for Ford Escort that burns up 4 ˝ years after purchase )].
New Car Contract Disclosure RulesIn Borys v. Scarsdale Ford, Inc 148a consumer demanded a refund or a new car after discovering that a new Ford Crown Victoria had several repainted sections. The Court discussed liability under GBL § 198-a ( New Car Lemon Law ) and GBL § 396-p(5) ( Contract Disclosure Requirements ) [ " gives consumers statutory rescission rights ' in cases where dealers fail to provide the required notice of prior damage and repair(s)' ( with a ) ' retail value in excess of five percent of the lesser of manufacture's or distributor's suggested retail price '" ].
In Borys the Court dismissed the complaint finding (1) that under GBL § 198-a the consumer must give the dealer an opportunity to cure the defect and (2) that under GBL § 396-p(5) Small Claims Court would not have jurisdiction [ money damages of $3,000 ] to force " defendant to give...a new Crown Victoria or a full refund, minus appropriate deductions for use ".
Magnuson-Moss Warranty Act & Leased VehiclesIn Tarantino v. DaimlerChrysler Corp. 149, DiCinto v. Daimler Chrysler Corp. 150, and Carter-Wright v. DaimlerChrysler Corp. 151 it was held that the Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq. applies to automobile lease transactions. " The Magnuson-Moss Warranty Act was, in fact, directed at car manufacturers and their performance under new car warranties...The characteristics of ( the ) lease, which are typical of those offered today, place it squarely within the realm of an ownership equivalent for the duration of the lease term; car leasing is both promoted by the industry ( manufacturers and dealers ) and regarded by many consumers as an alternate means of financing a new vehicle, which is less costly on a monthly basis and which affords the option to purchase or not at its end ".
Pets, Pets, PetsDisputes involving pet animals are often brought in Small Claims Courts [ see e.g.,Mongelli v. Cabral 152 ( " The plaintiffs ...and the defendants...are exotic bird lovers. It is their passion for exotic birds, particularly, for Peaches, a five year old white Cockatoo, which is at the heart of this controversy" );Mathew v. Klinger 153 ( " Cookie was a much loved Pekinese who swallowed a chicken bone and died seven days later. Could Cookie's life have been saved had the defendant Veterinarians discovered the presence of the chicken bone sooner? " ); O'Brien v. Exotic Pet Warehouse, Inc. 154 ( pet store negligently clipped the wings of Bogey, an African Grey Parrot, who flew away ); Nardi v. Gonzalez 155 ( " Bianca and Pepe are diminutive, curly coated Bichon Frises ( who were viciously attacked by ) Ace...a large 5 year old German Shepherd weighing 110 pounds " )].
General Business Law §§ 752 et seq applies to the sale of dogs and cats by pet dealers and gives consumers rescission rights fourteen days after purchase if a licensed veterinarian " certifies such animal to be unfit for purchase due to illness, a congenital malformation which adversely affects the health of the animal, or the presence of symptoms of a contagious or infectious disease " [ GBL § 753 ]. The consumer may (1) return the animal and obtain a refund of the purchase price plus the costs of the veterinarian's certification, (2) return the animal and receive an exchange animal plus the certification costs, or (3) retain the animal and receive reimbursement for veterinarian services in curing or attempting to cure the animal. In addition, pet dealers are required to have animals inspected by a veterinarian prior to sale [ GBL § 753-a ] and provide consumers with necessary information [ GBL §§ 753-b, 753-c ].
Several Courts have applied GBL §§ 752 et seq in Small Claims Courts [ see e.g.,Fuentes v. United Pet Supply, Inc. 156( miniature pinscher puppy diagnosed with a luxating patella in left rear leg; claims under GBL § 753 must be filed within fourteen days; claim valid under UCC § 2-324 );Saxton v. Pets Warehouse, Inc. 157 ( consumer's claims for unhealthy dog are not limited to GBL § 753(1) but include breach of implied warranty of merchantability under UCC § 2-714 );Smith v. Tate 158 ( five cases involving sick German Shepherds ); Sacco v. Tate 159( buyers of sick dog could not recover under GBL § 753 because they failed to have dog examined by licensed veterinarian).
Rental Purchase Agreement/Reinstatement RightsPersonal Property Law §§ 500 et seq [ " PPL §§ 500 et seq ] provides consumers who enter into rental purchase agreements with certain reinstatement rights should they fall behind in making timely payments or otherwise terminate the contract [ PPL § 501 ]. In Davis v. Rent-A-Center of America, Inc. 160 the Court awarded the consumer damages of $675.73 because the renter had failed to provide substitute furniture of a comparable nature after consumer reinstated rental purchase agreement after skipping payment.
There are, of course, many more consumer protection statutes available to consumers, attorneys, arbitrators and Judges in New York State's Small Claims Courts.
1.Thomas A. Dickerson is a Westchester County Court Judge, New York State, Web Page http://members.aol.com/judgetad/index.html. Judge Dickerson is the author of Travel Law, Law Journal Press, New York, 1981-2001, updated biannually, Web Page http://members.aol.com/travellaw/index.html, Class Actions: The Law of 50 States, Law Journal Press, 1988-2001, updated annually, Web Page http://members.aol.com/class50/index.html, and over 190 articles and papers on consumer law issues, Web Pages at http://courts.state.ny.us/tandv.htmland http://www.classactionlitigation.com/library/ca_articles.html
3 . My web site is at http://members.aol.com/judgetad/index.html
6 .See Dickerson, Threatening Telephone Calls and Aggravated Harassment in the Second Degree: The Need for Legislation, Women's Bar News Of The State Of New York, Vol. 11, No. 2, February 2001; Harassing & Threatening Telephone Calls: The Need For Legislation To Meet The Needs Of The Victims Of Domestic Violence, Westchester County Bar Association Newsletter, Vol. 25, Issue 1, February 2001.
11 .See e.g., Lebovits, Small Claims Courts Offer Prompt Adjudication Based On Substantive Law, N.Y.S. Bar Journal, December 1998, p. 1; Lebovits, Special Procedures Apply To Enforcing Judgments In Small Claims Courts, N.Y.S. Bar Journal, January 1999, p. 28; Lebovits & Snyder, Practitioner's Guide To Small Claims Part, New York Law Journal, Feb. 25, 1997, p. 1; Lebovits & Engoran, How To Help Judgment Creditors Collect: The Effective Use of Civil Court Act Article 18, New York Law Journal, Jan. 27, 1998, p. 1; Latwin, City Courts: Organization and Civil Jurisdiction Update, 23 Westchester Bar Journal 265 ( 1996 ); Latwin, Civil Courts: Organization and Civil Jurisdiction, 17 Westchester Bar Journal 279 ( 1990 ).
12 .See e.g., Judge Dickerson's Consumer Law Decisions at http://members.aol.com/judgetad/index.html.
13 .See Lesser, Reviewing Consumer Fraud Statute Cases in 2000, New York Law Journal, April 12, 2001, p. 1; Wagner, Limiting Consumer Protection Law to Consumers, New York Law Journal, February 2, 2001, p. 1; Dickerson, Applying Consumer Protection Laws In Small Claims Courts, New York Law Journal, Sept. 21, 1998, p. 1. See also Wagner, Using the ' Reasonable Consumer ' Rule In Deceptive Practices Litigation, New York Law Journal, Dec. 28, 1998, p. 1; Lesser, 1997 New York Consumer Fraud Act Decisions, New York Law Journal, April 3, 1998, p. 1.
15 .Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A. , 85 N.Y. 2d 20, 623 N.Y.S. 2d 529, 532, 647 N.E. 2d 741 ( 1995 ). See also Walts v. Melon Mortgage Corporation, 259 A.D. 2d 322, 686 N.Y.S. 2d 428 ( 1999 )( " Plaintiffs have adequately alleged a materially deceptive practice aimed at consumers " ), appeal dismissed 94 N.Y. 2d 795, 700 N.Y.S. 2d 424, 722 N.E. 2d 504 ( 1999 ); McKinnon v. International Fidelity Insurance Co., 182 Misc. 2d 517, 522 ( N.Y. Sup. 1999 )( " the conduct must be consumer-oriented and have a broad impact on consumers at large " ).
35 .BNI New York Ltd. v. DeSanto, 177 Misc. 2d 9, 14-15, 675 N.Y.S. 2d 753 ( 1998 ); See also Ricucci v. Business Network Int'l, Index No. SC 8876/97, Decision dated May 5, 1998, Yks. Cty. Ct. (TAD)( professional networking organization fails to deliver " good referrals " to real estate broker).
38 .Brown v. Hambric , 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ). Web Page http://www.directsaleslaw.com/library/cases/mlm/state/nybrown.htm
47 .Bartolomeo v. Runco , 162 Misc. 2d 485, 616 N.Y.S. 2d 695( 1994 ); Anilesh v. Williams, New York Law Journal, Nov. 15, 1995, p. 38, col. 2 ( Yks. Cty. Ct. )( landlord can not recover unpaid rent for illegal apartment )
61 .Walts v. First Union Mortgage Corp., New York Law Journal, April 25, 2000, p. 26,col. 1 ( N.Y. Sup. 2000 ). See also Walts v. First Union Mortgage Corp., 259 A.D. 2d 322, 686 N.Y.S. 2d 428 ( 1999 ), appeal dismissed 94 N.Y. 2d 795, 700 N.Y.S. 2d 424, 722 N.E. 2d 504 ( 1999 )( no private right of action under New York Insurance Law § 6503; money had and received, breach of fiduciary duty and tortious interference with contractual relation claims dismissed ).
71 .Rossi v. 21st Century Concepts, Inc., 162 Misc. 2d 932, 618 N.Y.S. 2d 182, 185 ( 1994 ). Compare: Millan v. Yonkers Avenue Dodge, Inc., New York Law Journal, Sept. 17, 1996, p. 26, col. 5 ( Yks. Cty. Ct. )( cooling-off period under Door-To-Door Sales Act does not apply to sale of used cars which is governed, in part, by cure requirements under New York's Used Car Lemon Law ( GBL § 198-b ).
82 .Schulman v. Chase Manhattan Bank, 268 A.D. 2d 174, 710 N.Y.S. 2d 368 ( 2000 ). Compare: Charvat v. ATW, Inc., 27 Ohio App. 3d 288, 712 N.E. 2d 805 ( 1998 )( consumer in small claims court has no private right of action under TPCA unless and until telemarketer telephones a person more than once in any 12-month period after the person has informed the telemarketer that he or she does not want to be called ).
84 .Miller and Biggerstaff, Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes , 52 Federal Communications Law Journal, 667, 668-669 ( 2000 )( " The TCPA presents ' an unusual constellation of statutory features '. It provides a federal right to be free from certain types of telephone solicitations and facsimiles ( faxes ), but it does permit a victim to enforce that right in federal court. The TCPA's principal enforcement mechanism is a private suit, but the TCPA does not permit an award of attorney fees to the prevailing party, as do most other private attorney general statutes. The TCPA is practically incapable of forming the basis of a class action..." ).
112 .On the issue of preemption see Eina Realty v. Class Action Litigationxte, 178 Misc. 2d 80, 679 N.Y.S. 2d 796 ( 1998 )( RPAPL § 711 which permits commencement of litigation by landlord within three days of service of rent demand notice is preempted by Fair Debt Collection Practice Act ( 15 U.S.C.A. § 1692 )).
130 .Automobile manufacturers or dealers may sell consumers new and used car warranties which, typically, are contingent upon an opportunity to cure. Borys v. Scarsdale Ford Inc., New York Law Journal, June 15, 1998, p. 34, col. 4 ( Yks. Cty. Ct. ). Web Page, infra.
131 .Denny v. Ford Motor Company, 87 N.Y. 2d 248, 639 N.Y.S. 2d 250, 253-259, 662 N.E. 2d 730 ( 1995 )( comparison of causes of action based upon strict products liability and breach of warranty of merchantability ).