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What You Need To Know About The NYS Lemon Law Before You Have A Case

Published June 29, 2011
Original publication date:  June 29, 2011.  Original publication site:  726retirees.com

Most of us will be lucky enough to never drive a lemon.  That being said, there are some very basic things you can do to protect your rights in the event that you do end up having a New York Lemon Law case.

GET DOCUMENTATION

I cannot stress this point enough.  Every time you bring your vehicle to the dealership – for any reason – you need to get an invoice documenting what the dealership did to resolve your complaint.  It’s not unusual for a minor issue to become worse over time – and being able to document that progression is imperative in proving your case. 

  • Do not take ‘No’ for an answer.  Your service manager might say that an invoice isn’t necessary – that it was a quick fix.  That isn’t acceptable.  It’s your car and you are entitled to know exactly what happens with it, big or small. 
  • Do not accept any excuses.  It’s amazing to me how often the dealership’s computer system is down or the technician who worked on your car is on vacation.  They will often tell you that they will mail the invoice to you – and of course they never do.  Here is the rule:  if they can’t give you an invoice, politely let them know that you will come back later when an invoice is available.  99% of the time they will suddenly find a way to document what happened.
  • Make sure your invoice is accurate.  There are two dates that must accurately be reflected on your invoice.  The date in (often called the ‘R.O. date’), and the date out (often called the ‘invoice date’).  Make sure that these two dates are correct.  There might be a situation, for instance, where a problem you had persisted after a first repair so you brought it back to the dealership a second time.  All too often the dealerships will just add that second repair to the first invoice, and not change the dates.  In general you want to avoid that, as one of the things we need to show for a lemon law case is a number of separate and distinct repairs.  If, however, they do end up putting the second repair on the same invoice, they should at least document the additional days out of service for repair.
  • Make sure your complaint is properly reflected on the invoice.  When you bring the vehicle to the dealership an employee will type up a preliminary invoice detailing your complaint.  Obviously it should clearly state the reason for the visit.  For instance, if you are feeling brake pulsations at highway speeds, then a complaint of “Brakes” is not sufficient.  It should state exactly what you are experiencing:  “Brake pulsation at highway speeds.”  You should review this preliminary invoice before you leave the dealership. 
  • Make sure that the dealership provides a detailed explanation of how it dealt with your complaint.  The repair invoice will often just list the parts that were replaced without providing a narrative account of what they discovered when they inspected your vehicle.  It is preferable if they state something along the lines of “Test drove vehicle.  Verified pulsation at highway speeds.  Inspected and noted that front rotors are out of round.  Replaced rotors” – rather than simply stating “Front Rotors” and a part number.
  • Last but not least:  KEEP YOUR REPAIR INVOICES.  (yes, I am shouting!)
PERFORM MAINTENANCE UPON THE VEHICLE PER THE MANUFACTURER’S GUIDELINES.

For smaller issues you won’t be asked to produce maintenance records.  But the big repairs are where your wallet might take a hit.  The fact of the matter is that replacing an engine or transmission can cost thousands of dollars, and although some manufacturers are better than others, all of them look for an excuse to not have to pay for that repair.

  • Make sure that you perform maintenance on your vehicle per the manufacturer’s guidelines.  If you go one day or one mile past the maintenance guideline in your owner’s manual before you get an oil change you are simply asking for trouble.  Most of us lead busy lives and it’s easy to forget when something needs to be done – but on the other hand, your car is probably one of your largest investments so it’s worth taking the time.
  • One thing that helped me keep up to date with the maintenance schedule on my car is by making a Google Calendar that sends me email reminders on an ongoing basis.  For instance, you can make it remind you by email every three months to change your oil.  Obviously if you are putting a lot of miles on the vehicle then you might need to adjust the timing of the reminders accordingly.  But also, don’t forget to include reminders about other maintenance items such as spark plugs, timing belts, etc.
  • Also – document anything that happens to your vehicle, even if it doesn’t involve a repair.  Obviously maintenance records such as for oil changes are potentially important.  However, even something like gas receipts might be relevant.  For instance, if you are told that your fuel pump was destroyed because of bad gasoline and the repair won’t be covered under warranty – you are going to want a record of exactly when and where you fueled the vehicle.  BMW was telling its customers for years that bad gas was damaging their fuel pumps – until ABC’s Nightline did an expose and they issued a recall the next day.
CALL A LEMON LAW ATTORNEY IF YOU DO HAVE PROBLEMS.

More often than not with these type of cases you will get better results with an attorney than without one.  I know it’s self-serving but it’s also true.  I have probably heard clients tell me over a hundred times that their manufacturer concluded they didn’t have a lemon law case.  Newsflash:  The manufacturer doesn’t want to buy back your vehicle if it can avoid doing so!
Because the statutes we utilize allow you to collect attorney fees under various circumstances, there is often no cost whatsoever.  That being said, there are a few things you do need to watch out for when choosing an attorney.

  • A New York Lemon Law attorney should not charge you anything out of pocket (except for one situation detailed below).  
  • On a New York Lemon Law case we are typically paid by the manufacturer when your car is repurchased or replaced.  There should be absolutely no cost to you.
  • On a Magnusson-Moss Warranty Act case (where you keep the car and get monetary compensation), we are typically paid a portion of the settlement proceeds on a pre-litigation matter, or recover our fees from the manufacturer (based on time spent) on a litigation matter.  It is important that you know in advance exactly how the lawyer gets paid under these circumstances.  I know of one large firm that simply says that its representation is ‘free’ and they are ‘paid by the manufacturer’.  When they negotiate a cash settlement for you on a MMWA case they then decide how much of that money, coming from the manufacturer, should be allocated towards their fee.  Essentially, they decide how much they want to charge on any given case without giving you any criteria beforehand to determine how they set their rate.  I believe characterizing this representation as ‘free’ is misleading at best.
  • The one exception to the rule about not paying out of pocket, in New York, is where you demand a repurchase or replacement under the lemon law, the manufacturer refuses to voluntarily do so, and you elect to bring an arbitration against the manufacturer rather than a lawsuit.  Attorneys can collect fees and expenses in a lemon law lawsuit, but not in an arbitration.  An arbitration can be a lot quicker than a lawsuit, but if you choose to go that route then you will have to pay a fee out of pocket.
  • One thing that I would ask for as a potential client is a clause saying that I can cancel the representation at no cost for any reason should I choose to do so.  For instance, you might choose an excellent lawyer but have a difference of opinion on strategy.  It happens.  If you have such a clause in your retainer agreement then you can amicably part ways and choose alternative counsel.  Without such a clause it is possible that your attorney might put a ‘lien’ on your case should you end up disengaging him, which would make it difficult to obtain new counsel.
  • Testimonials are important.  The best ones are from friends or family members who have used an attorney in the past.  Unfortunately, the Lemon Law is such a niche practice area that it is unlikely you know anyone who has previously had a case.  I ask all of my clients for a testimonial at the end of the representation, and have placed several pages of them on my web site.  You can also check attorney rating sites like http://avvo.com for unbiased reviews by former clients.
  • Feel free to contact me if you think you might have a case.  My office phone number is 877-50-LEMON (877-505-3666).  Our website is http://lemonfreedom.com.  



Eugene Krukas, Esq.

2704 Grand Ave

Suite 4

Bellmore, NY 11710

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