What to Do When the Lemon Law Limits Have Been Exceeded or Do Not Apply to Your Vehicle

For illustrative purposes, I direct the reader’s attention to the New York Small Claims case of Alex Diaz v. Your Favorite Auto RPR decided by Judge Reginald Boddie on May 29, 2012 in the Civil Court of the City of New York, Kings County, Small Claims Part Under Index Number 4404/2011, which provided as follows:

Claimant commenced this small claims action against defendant to recover $3,000 for the cost of repairs to an allegedly defective vehicle he purchased from defendant on April 28, 2011. Claimant purchased a 2002 Audi A6 with 122,519 miles on the odometer. Claimant alleges that within two weeks of purchase he returned with the vehicle because it was not running properly. Claimant alleges the timing belt, water pump, pulley, fan belt, torque converter, and transmission were defective and needed to be replaced. Defendant admits that claimant returned to the dealership with the vehicle and acknowledges that the transmission needed to be replaced. Defendant indicated the water pump was replaced prior to selling the vehicle. Defendant contends that it was not required to replace the transmission because the anticipated cost, $2,200, was greater than the alleged profit on the sale, $350. Defendant further contends that because the vehicle's mileage exceeded 100,000 at the time of sale warranty of the vehicle is excluded under NY Gen Business Law 198-b, commonly referred to as the "Used Car Lemon Law," and claimant has no remedy in law.

The court disagrees. The Used Car Lemon Law is not an exclusive remedy (NY Gen Business Law 198-b [d] [2]). Article 2 of the Uniform Commercial Code also governs contracts for the sale of automobiles, as here. Claimant's purchase of the vehicle from defendant on April 28, 2011, for $5,200, is a contract for the sale of goods governed by UCC 2-201. Section 2-105 of the Uniform Commercial Code defines goods, in relevant part, as "all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid." The vehicle at issue is considered a good under UCC 2-105 (1). Contracts for the sale of goods by a merchant, by their very nature, include an implied warranty of merchantability (UCC 2-314 [1]). The defendant here is a merchant since his principle business includes the sale and repair of automobiles (UCC 2-104 [1]). Therefore, unless such warranty is waived or modified, the implied warranty of merchantability guarantees that the goods are fit for the ordinary purposes for which such goods are used (UCC 2-314 [2] [c]). It is well-settled under New York law that "to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in the case of a writing must be conspicuous" (UCC 2-316 [2]).

Here, the defendant merchant failed to effectively disclaim the implied warranty of merchantability. Defendant merely indicated "over 100k, no warranty" on the bill of sale. The court finds that these words alone are not conspicuous as required by UCC 1-201 (10) and are insufficient to disclaim the implied warranty of merchantability (UCC 2-316 [2]; Bimini Boat Sales, Inc. v. Luhrs Corp., 69 AD3d 782, 783 [2d Dept 2010], [holding that defendant failed to effectively disclaim the implied warranty of merchantability since the purported disclaimer did not mention "merchantability"]).

Furthermore, here claimant alleges the vehicle was not fit for ordinary use due to a failed transmission and it required a timing belt, fan belt, torque converter, pulley and water pump. The defendant did not dispute that the vehicle required a transmission and water pump. Defendant however states the water pump was replaced prior to sale of the vehicle. Claimant tendered two estimates for replacement of the water pump and no paid receipt. The court finds defendant's  testimony regarding replacement of the water pump more credible than claimant.

The court also finds that although the vehicle may require a new timing belt, fan belt, and pulley, such are part of a regular tune up and did not render the vehicle unfit for normal use. Nor did claimant establish that defendant knew or had reason to know that replacement of the timing belt, fan belt, and pulley were necessary. Claimant also did not establish the need for a new torque converter.

Finally, the court finds that the vehicle as sold was not merchantable due to the defective transmission, which defendant should have known at the time of sale, and acknowledged shortly thereafter (UCC 2-314; McCormack v. Lynn Imports, Inc., 114 Misc 2d 905, 910-911 [Nassau Dist Ct 1982]). At the very least, a car must be sold in a condition fit for reasonable and safe use on the road (McCormack, 114 Misc 2d at 910-911). A car cannot be operated safely and in a reasonable fashion on the roads with a defective transmission (McCormack at 910-911). The fact that repairing such costs more than defendant alleges it received as a profit is not a defense. In any event, defendant did not establish the amount of profit with admissible evidence.

Section 2-714 (1) of the Uniform Commercial Code allows a buyer who has accepted goods and given proper notification, as here, to recover "damages for any non-conformity of tender the loss resulting in the ordinary course of events from the seller's breach as determined in any manner which is reasonable." Non-conformity includes breach of warranties, as here (UCC 2-714 [1], Comment 2).

"The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount" (UCC 2-714 [2]). "Put another way, the measure of damages for breach of contract or warranty with respect to accepted goods is the difference between the fair market value of the goods accepted and their fair market value if they had been as warranted" (Ferraro v. Perry's Brick Co., 30 Misc 3d 1213 [A], 2011 NY Slip Op 50055[U] [2011], citations omitted). However, Official Comment 3 to UCC §2-714 (2) makes clear that the standard of damages set forth in section 2-714 (2) "is not intended as an exclusive measure." "Read together, subsections (1) and (2) of section 2-714 provide that plaintiff may recover for its direct damages in any manner which is reasonable" (Ferraro, 2011 NY Slip Op 50055[U], *8, quoting Am. Elec. Power Co. v. Westinghouse Elec. Corp., 418 F Supp 435, 454 n 34 [SD NY 1976], citing see Happy Dack Trading Co. Ltd. v. Agro-Industries, Inc. et al, 602 F Supp 986, 994 [SD NY 1984]).

In this case, it is the mandate of the Small Claims Court to provide the parties with substantial justice according to the rules of substantive law (UCCA 1804, 1805 [a]). Here, claimant proffered two estimates of the cost to replace the transmission in the amounts of $1,102.73 and $922.50. Accordingly, judgment is granted to the claimant in the amount of $922.50, plus statutory costs and interest from August 3, 2011. The remainder of the claim is dismissed.

This constitutes the decision and order of the court.

In view of the foregoing decision and statutes,  a consumer / purchaser of a vehicle or automobile having defects or expensive repairs may, in addition to other claims, bring an action under the Uniform Commercial Code express and / or implied warranties within four (4) years of the date of purchase and may do so within the monetary limits of the Small Claims Courts, District Courts or the Supreme Court depending upon the amount of damages and costs of repair.  The reader is suggested to promptly report and document all defects and claims with the manufacturer of new vehicles or dealer of used vehicles and to promptly consult with counsel to further consider the best means of recovering any damages and / or compel rescission of the contract and repurchase of the vehicle.

SC45752-14
Scott A. Miller, J.

Plaintiff, Charles Rhody, commenced this Small Claim on October 20, 2014 seeking $4,800.00 for a defective used car. At the hearing held on January 22, 2015, Plaintiff appeared and testified and the Defendant, Phil Empson, was represented by John Stevens, Esq. of Ithaca. Plaintiff's Exhibits 1 through 4 were marked and received into evidence as were Defendant's Exhibits A and B. After evaluation of the evidence, the Court finds and concludes as follows.

On August 19, 2014, Plaintiff purchased a 2005 Jeep Liberty 4 door vehicle, vehicle number IJ4GL48KO5W598883 for $4,472.00, plus tax ($357.26) and title registration fee ($170.24) from either Main Street Auto, a D/B/A of Defendant Phil Empson, or Defendant Augie's Auto, Inc. a New York Domestic Corporation, or both. The bill of sale states that the name of the dealer is Main Street Auto (Defendant's Exhibit A). Philip Empson testified that the vehicle was actually one owned by Augie's Auto, and that he displayed it for Augie's at his Main Street Auto lot, 436 Main Street in Newfield. Mr. Empson testified that he then wrote up the bill of sale. Mr. Empson also sold Mr. Rhody a service contract for $249.00, which lists the dealer's name as Main Street Auto and the salesman's name as Phil Empson. Augie Adams was present in the courtroom at the hearing, but he did not testify. None of the paperwork contains any reference to Augie's Auto or Augie Adams (Defendant's Exhibit A and Plaintiff's Exhibits 1 and 4). Mr. Adams did not deny that Mr. Empson sold one of his vehicles on Mr. Empson's lot. This Court is charged with determining the correct name of the Defendant. NY UCCA §1814. Determining the true name of the seller in this case is just the first unnecessarily complex issue in what should be a relatively simple transaction, the purchase of a serviceable used car. Based on the foregoing, and as a matter of substantial justice, the Court finds that Mr. Rhody had a right to rely upon the actual bill of sale which lists Main Street Auto as the dealer. Further, the Court finds Mr. Empson's testimony that he sold the vehicle for Augie's Auto, Inc. on consignment credible. Mr. Adams did not deny this. There may or may not be a partnership relationship between Mr. Empson and Augie's Auto Inc., and there was no cross claim between the Defendants. Accordingly, and as a matter of substantial justice, the Court finds the proper names of the Defendants to be both Augie's Auto, Inc. and Phil Empson D/B/A Main [*2]Street Auto.

Mr. Empson testified that he is a used car dealer who sells approximately 25 to 30 cars per year. Augie's Auto, Inc. is also a used car dealer. The bill of sale for the vehicle indicates that the odometer reading was 163,821 miles on August 19, 2014. The bill of sales states:

ADDITIONAL TERMS AND CONDITIONS

1) As used in this Order the terms (a) "Dealer" shall mean the

authorized Dealer to whom this Order is addressed and who shall

become a party hereto by its acceptance hereof (b) "Purchaser" shall

mean the party executing this Order as such on the face hereof, and

(c) "Manufacturer" shall mean the Corporation that manufactured the

vehicle or chassis, it being understood by Purchaser and Dealer that

Dealer is in no respect the agent of Manufacturer, that Dealer and

Purchaser are the sole parties to this order and that reference to manu-

facturer herein is for the purpose of explaining generally certain con-

tractual relationships existing between Dealer and Manufacturer with

respect to new motor vehicle.

NOTICE TO USED VEHICLE BUYER

If this motor vehicle is classified as a used motor vehicle, the above

named dealer certifies that the entire vehicle is in condition and repair

to render under normal usage satisfactory and adequate service upon

the public highway at the time of delivery (Defendant's Exhibit A).

Warranty of Serviceability

As the Jeep had more than 100,000 miles on it. New York's Used Car Lemon Law does not apply. General Business Law §198-b. The language in the Jeep's printed warranty is taken from Vehicle and Traffic Law §417, which is known as the Used Car Warranty of Serviceability. Vehicle and Traffic Law §415 et sec. Unlike New York's Used Car Lemon Law, New York's Warranty of Serviceability applies regardless of the mileage of the used car. NY Vehicle and Traffic Law §417. Section 417 of the VTL is a non-waivable obligation, and therefore, the attempt to exclude all warranties found on the back of the bill of sale is in effective. Armstrong v Boyce 135 Misc. 2nd 148 (Jefferson Co Ct 1987). The regulations adopted under the Warranty of Serviceability require the dealer to perform, at a minimum, an 18 point inspection before making the above-quoted certification. 15 NYCRR §78.13.The check-list covers basic safety features such as directional signals, hazzard switches, approved safety glass, windshield wipers, proper brakes and steering systems, tires, safety belt and an emission control system in good working order. Id. The Warranty of Serviceability was initially adopted in 1954, and, has therefore, been on the books longer than New York's Used Car Lemon Law, which was adopted in 1984. NY General Business Law §198-b. Armstrong v Boyce, 135 Misc. 2nd 148 (Jefferson Co Ct 1987).The Third Department has held that used car contracts may be rescinded if the used vehicle is "not in compliance with §417 of the Vehicle and Traffic Law." Rayhn v Martin Nemer Volkswagen Corp. 77 AD 2nd 394, 395 (Third Dept, 1980). In the Rayhn case, the buyers had difficulty operating the used vehicle's transmission, and the vehicle exhibited a number of other problems upon receipt, including major clutch and transmission repair, defective thermostat, defective alternator, bent alternator pulley, defective door lock, trunk out of alignment, defective brake pads, untuned engine, damaged wheel rim, brake fluid needed, emergency brake needing adjustment, and non-working [*3]locks. The buyers purchased the vehicle on January 20, 1979, and had returned the vehicle to the dealers for the last repair on February 7th. The Third Department held that a plain reading of Section 417

"supports the conclusion that the legislature intended to impose absolute

responsibility upon the used vehicle dealers in this state to sell only motor

vehicles in condition to render adequate and satisfactory service upon high-

ways at the time of delivery" Rayhn, at 396.

Further, the Third Department held that "a failure to conduct an appropriate inspection is an express violation of §417." Id. The Rayhn Court found that the dealer had offered no direct evidence that an appropriate inspection had been conducted, although the record contained a document that referenced a "16 point inspection." The Court held that the buyers had provided sufficient proof of a violation of §417 for the purposes of summary judgment, given the dealer's lack of proof regarding the inspection. The Third Department held that delivery of the vehicle to the buyer without first making an appropriate inspection and bringing the vehicle into compliance with §417 was "implicitly prohibited" (Id 397). The Court stated:

"To require the Plaintiffs to accept the performance of the contract

by [dealer] would violate the public policy as found in section 417

and would lend judicial encouragement to putting dangerous vehicles

upon the highway. The Plaintiffs, upon surrender of the automobile,

as has already occurred herein, are entitled to a complete refund of the

purchase price. The fact that it is alleged that the vehicle is now in com-

pliance with section 417 is immaterial in the absence of an acceptance

of such vehicle by the plaintiffs... As part of rescission, the Plaintiffs

must execute such documents as are necessary to restore title to the

motor vehicle to Nemer as may be directed by the court upon remittal.

(emphasis added) (Id, at 397)

The rule in the Third Department, then, is that used car buyers are entitled to a road-worthy vehicle that has passed "an appropriate" inspection. Id. They are not required to return the vehicle for repairs that were needed at the time of sale. The Fourth Department has specifically held that the dealer's certification is not limited to the 18 items listed in the regulations. Carter v General Motors Corp. 273 AD 2nd 804 (4th Dept., 2000). The Fourth Department reached this conclusion by examining the statutory language and intended protections of the statute as set forth by the drafters. If a defect existing at the time of sale does not "manifest itself" for a period, recovery is not barred if there is sufficient proof of its existence at the time of the sale. Armstrong v Boyce, at 155.

Warranty of Merchantability

The back of the bill of sale, paragraph 9, seeks to exclude all warranties, "express or implied." Paragraph 10 seeks to exclude the statutory Warranty of Merchantability set forth in New York's Uniform Commercial Code. NY UCC §2-314. That warranty requires that goods be "merchantable," that is, "fit for the ordinary purposes for which such goods are used." Id. For used cars, the standard is similar to that imposed by the Warranty of Serviceability. In Diaz v. Paragon Motors of Woodside, Inc., 424 FSupp2d 519 (EDNY, 2006), the court held:

Under New York law, at a bare minimum the ordinary purpose for

which a used car is to be used should be such as to enable the pur-

chaser to transport herself upon the streets and highways of this state

or any other in a reasonably safe manner. Rather than guaranteeing

performance without malfunction during the term of the warranty, a

warranty anticipates that failures will occur and that they will be cor-

rected. ) Whereas the buyer bears the burden of proving a substantial

impairment of value under the UCC, the dealer bears the burden of

negating substantial impairment as an affirmative defense under the

Lemon Law. Diaz, supra at 540 -541 (Internal citations omitted). To exclude the Warranty of Merchantability, a seller must use a written contract, and the exclusion must be "conspicuous." NY UCC §2-316. "Conspicuous" has been defined as follows by the Third Department:

"Conspicuous" is defined in subdivision (10) of section 1—201 of the

Uniform Commercial Code, in pertinent part, as follows:

A term or clause is conspicuous when it is so written that a reasonable

person against whom it is to operate ought to have noticed. * * * Language

in the body of a form is "conspicuous" if it is in larger or other contrasting

type or color. * * * Whether a term or clause is "conspicuous" or not is for

decision by the court.

The test, accordingly, is whether a reasonable person would notice the

disclaimer when its type is juxtaposed against the rest of the agreement

(1 Anderson, Uniform Commercial Code [3d ed], §§ 1—201:54—1—201:58,

pp 210—212). As the only boldface print in the only four paragraphs on the

first page of the agreement, it cannot be said that the disclaimer did not call

attention to itself. Further, it is under the broad heading of "TERMS AND

CONDITIONS OF LEASE" and appears before the authorizing signatures

on the front side of the agreement and not on the back with the boilerplate

paragraphs. For these reasons, we find that Special Term erred in ruling the

disclaimer not conspicuous (1 Anderson, Uniform Commercial Code [3d ed],

• 1—201:61, p 214). Accordingly, summary judgment on the issue of liability

should have been granted to plaintiff. (emphasis added) Commercial Credit

Corp. v. CYC Realty, Inc.,102 AD2d 970, 971, ( 3d Dept,1984)

Here, the attempted exclusion of the Warranty of Merchantability fails because instead of being conspicuous, the exclusion is completely inconspicuous. The attempted exclusion, printed in fine print on the back of the bill of sale, has no bold type. There is nothing conspicuous drawing the reader's eye to the exclusion. Although the buyer signs on the front under a line stating that he has "read the matter printed on the back," nothing in that line draws his attention to the exclusion of important statutory warranties on the back. Furthermore, even if the waiver of Warranty of Merchantability was deemed valid, which it is not, such waiver would have no impact on the non-waivable statutory Warranty of Serviceability. NY VTL §417; See, Datov v. Vatland, 36 Misc 2d 636 (Nass Co Dist Ct, 1962).

Where there is a breach of the Warranty of Merchantability, a buyer is entitled to the difference between the value of accepted goods and the value as if they had been warranted, plus, "in a proper case" incidental and consequential damages. NY UCC §2-714. For goods that are rejected or where acceptance is rescinded, the buyer may recover the full purchase price, plus incidental and consequential damages . NY UCC §2-711 & 2-715.

Mr. Rhody testified that the day he purchased the vehicle, the check engine light came on, and there was an unspecified leak. Mr. Rhody testified that Mr. Empson repaired the leak, but he did not clear the check engine light, which he thought was related to functioning of the catalytic converter. In addition to these problems, Mr. Rhody testified that there was an unusual sound. Vanessa DeJesus, the car's main driver, testified that if the vehicle is driven over 40 miles per hour, there is a "whistle" in the back right portion of the vehicle and vehicle exhibits a rotten egg smell. Further, the gas tank or gas line either allows evaporation or leaks because when the tank is filled, it is empty within two days even if the car is not driven. Mr. Rhody testified that there is considerable rust on the vehicle, which may or may not explain the gas leak. Mr. Rhody testified that when he brought the vehicle to Monroe Muffler and Brake the first day, Monroe diagnosed a rack and pinion problem and recommended wheel alignment and a valve flush kit (Plaintiff's Exhibit 2).

Mr. Rhody testified that within the first month he went to Mr. Empson at least six times, notifying him of the problems. According to Mr. Rhody's testimony, Mr. Empson stalled, and on the 31st day sent him to H & H, a repair shop authorized by the service contract Mr. Empson sold Mr. Rhody. Mr. Rhody testified that the shop fixed only one issue, the rack and pinion. He claims that he should not have to pay for the $100.00 deductible (Plaintiff's Exhibit 3). Mr. Rhody testified that after the October 14th repair, the check engine light was still on, and the gas still evaporated. Mr. Rhody specifically recalled taking the vehicle to Augie's Auto or Mr. Empson at least six times to fix the check engine light without resolution. He believes it may be related to operation of the catalatic converter based upon the continuing sounds and the smell coming from that area. Ms. DeJesus testified that at the time of the hearing, 5 months after purchase, the vehicle stalls and shuts off in reverse. Ms. DeJesus testified that she had to rent a vehicle to drive to Brooklyn because she could not trust the Jeep.

Mr. Empson testified that he provided a new gas cap to Mr. Rhody, and that solved the check engine light problem. Further, he testified he sent Mr. Rhody to H & H for a heater repair as described above (Defendant's Exhibit B). On October 1st, Mr. Rhody took the Vehicle to Augie's Auto where Mr. Adams diagnosed a leak in the heater control and a problem with the evaporation system which caused the check engine light to come on. Mr. Adams installed a leak dot pump, heat [*4]resister, and a new steering rack (Defendant's Exhibit B). Mr. Rhody testified that despite the repairs, the check engine light remains on and the gas continues to evaporate or leak.At the close of the evidence, Mr. Stevens moved to dismiss under General Business Law §198-b, and moved to dismiss as against Augie's because the bill of sale lists Mr. Empson's business, Main Street Auto. The Court has set forth the law, above, and denies both motions to dismiss. The Court finds sufficient proof by a preponderance of the evidence that the vehicle was not in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery. The dealer provided no evidence, whatsoever, that the car underwent any sort of inspection prior to sale. Failure to inspect is indirect contravention of the Warranty of Serviceability. There is a presumption that if the inspection is not done, the car is delivered with problems. Armstrong v Boyce 135 Misc. 2nd 148 (Jefferson Co Ct 1987). Monro Muffler's inspection on the date of sale revealed a defect with the rack and pinon. The dealer did not fix the problem in a timely manner, but stalled until October, and then directed the buyer to use his own service contract to repair the defect found at the time of sale, all in contravention of the Warranty of Serviceability. Under the Third Department case law, the buyers are not required to accept performance of a repair contract when the defect is apparent on day one. Rayhn v Martin Nemer Volkswagen Corp. 77 AD 2nd 394 (3d Dept, 1980). Based on the un-controverted testimony regarding the defective condition of the vehicle on the date of sale and the continuing defects rendering the vehicle unfit for satisfactory and adequate service, the Court finds that the Defendants breached both the statutory Warranty of Serviceability (VTL §417) and the Uniform Commercial Code's Warranty of Merchantability.

Choice No.1- Recession, Return and Refund

As set forth above, the breach of VTL §417 and the Uniform Commercial Code allow rescission of the contract and complete refund of the purchase price, plus incidental and consequential damages. Vernon v. Potamkin Cadillac Dorp, 118 AD2d 698 (2nd Dept, 1986); Williams v. Planet Motor, Inc., 190 Misc 2d 22 (NYC Civ Ct, 2001). However, because Mr. Rhody has sued for only $4,800.00, an amount less than the total purchase price, the Court is constrained to award him the amount claimed, $4,800.00, plus costs. Payment of this award is contingent upon Mr. Rhody first signing over title of the vehicle to Defendants and returning the vehicle to them. If Mr. Rhody wishes to cancel the contract, he must sign over the vehicle to the Defendants, or one of them, as they shall designate, and return the vehicle and keys to a place designated by counsel for Defendant Empson within 30 days of this Decision. Mongelli v Cabral, 166 Misc 2d 240 (Yonkers City Ct, 1995). However, if the Defendants or any of them do not pay the judgment of $4,800.00 plus costs to Mr. Rhody at the time of his relinquishment of the vehicle and signing over of the title, Mr. Rhody is obviously not obligated to return the vehicle. Only upon collection of $4,800.00 plus costs must Plaintiff return the jeep and sign over title to one or more of the Defendants.

Choice #2 - Accept Vehicle- Difference in Value, plus out of pocket expenses

In the alternative, if Mr. Rhody does not wish to return the vehicle, he is entitled to the difference between the "value of the goods accepted and the value they would have had if they had been as warranted" plus incidental and consequential damages. NY UCC §2-714. Courts have taken judicial notice that Kelley Blue Book is "a report of a regularly organized stock or commodity market published in a...periodical of general circulation or in an official publication or trade journal" under NY CPLR 4533. Dobson v. Saal, 31 Misc 3d 1228 (NYC Civ Ct, 2011). The Kelley Blue [*5]Book values at the time of this Decision (7 months after sale) for a Jeep Liberty with approximately 164,000 miles are as follows:

Fair condition:$3,143.00

Good condition:$3,558.00

Very good condition: $3,981.00

Excellent condition:$4,429.00

(Http://www.kbb.com/jeep/liberty/2005)

The Court finds that this vehicle was in poor condition, but Kelley Blue Book's lowest valuation is for "fair" condition. This Court finds, as a matter of substantial justice, that the vehicle's value in "poor" condition is $1,572.00, or 50% of its Kelley Blue Book "fair" condition value. As a matter of substantial justice, and based on the evidence, the Court awards Mr. Rhody the difference between the purchase price, $4,472.00, and the value of a "poor" condition vehicle, $1,572.00, which is $2,900.00, plus the difference in sales tax, $232.00 ($358.00- $126.00), plus the cost of the service contract, $249.00, plus the deductible he paid for the rack and pinion repair, $100.00, for a total of $3,481.00, plus costs.

Used car dealers must be on notice that although the Used Car Lemon Law General Business Law §198.b is inapplicable once a vehicle has more than 100,000 miles, a breach of VTL §417 still offers buyers protection when they drive away with what they thought was a sweet ride only to find that they are experiencing the bitter sting of a lemon. The Court finds that the Jeep was not worthy of Rhody, nor was it roadworthy at the time of sale.

Mr. Rhody shall notify the Court of his choice (1) to cancel the contract and return the vehicle and receive $4,800.00, plus costs, or (2) to retain the vehicle and obtain a judgment in the amount of $3,481.00, plus costs. Mr. Rhody will so notify the Court within 10 days of this Decision, with notice to Defendant Empson's counsel, Mr. Stevens, whose address is below.

This constitutes the Decision of the Court entered upon notice to both parties. A notice of appeal, if applicable, must be filed within thirty (30) days of the date of this decision.

Dated: March 10, 2015

s/__________________________________SCOTT A. MILLER

Ithaca City Court Judge