New York Lemon Law For Leased Vehicles

Posted by Sergei Lemberg, Esq. on September 30th, 2008

Tom Incantalupo recently wrote a great article in Newsday about the New York State Automobile Retail Leasing Act, which affects cars that were least after August 11, 1995. According to Tom, the law has successfully helped consumers with leased vehicles fight the “excess wear” charges that dealers and manufacturers try to levy at the end of a vehicle’s lease period. He writes, “The law limits excess wear charges to the actual cost of repair, specifies that consumers can appeal to lenders and set up the attorney general’s arbitration machinery.” Tom also noted that New York Attorney General Andrew Cuomo has used the Automobile Retail Leasing Act for balloon loans as well.

He also has some great tips about how to avoid charges when your lease ends, including reading the fine print on your lease contract, taking photos of the vehicle, getting it appraised, and having the car detailed.

Although the Automobile Retail Leasing Act can be really helpful, New York Lemon Law doesn’t do much to aid consumers who have leased vehicles. For example, in New York lemon car lease, the consumer is not entitled to reimbursement for the full amount of his or her payments. In addition, the mileage deduction is calculated at the time of trial or arbitration, not when the case is filed, which means that consumers get penalized for driving a lemon car. Finally, if Lemon Law coverage has expired, New York offers no right to attorneys’ fees for breach of warranty claims on leased vehicles – something that most states offer.

Are You Prepared for Your Deposition?

Posted by Sergei Lemberg, Esq. on September 29th, 2008

Attorney Frank D. Granato is sitting in the guest blogger’s chair today. He’s provided us with a thoughtful article on surviving a deposition. Thanks, Frank!

“We are what we repeatedly do. Excellence, then, is not an act, but a habit.”
-Aristotle-

You have just been served with a lawsuit. The house you sold two years ago has expansive soil and is now slipping down the hill. The buyers are going to have to pay $250,000.00 to fix the problem. They want you to reimburse them since you never told them about the problem. The buyers’ attorney has noticed your deposition. Will you be ready for it? How do you prepare for it? Will your attorney help you?

Going through a deposition is not a pleasant experience. However, being prepared can make the experience less harrowing.

A deposition is a question-and-answer session that takes place in an attorney’s office. Usually present are the attorneys for the parties, the parties themselves, and a court reporter. The answers you give at a deposition are considered testimony. You are sworn in by the court reporter and you answer the questions under oath. It is no different than if you were testifying in court.

There are tried-and-true rules for preparing a witness to testify at a deposition. The following points will help you become a better witness, and could quite possibly make the difference whether you win or lose your case.

1. IF YOU DO NOT REMEMBER, SAY SO. Never think that you must have 100% total recall or something even close. Time may heal a broken heart, but it sure does not help your memory. Do what you can before the deposition to refresh your recollection about the incident. Perhaps you still have paperwork regarding your particular incident. Review it. Maybe your diary from that year is still around-locate it and read it. Then, if a question comes up at the deposition that you do not recall the answer to, tell the attorney, “I’m sorry, but I don’t remember that….”

2. DO NOT NARRATE. Listen to the question; if you can answer it with a yes or a no, then do just that. When you add more to your answer, you simply give the attorney more ammunition to use against you. Don’t think you have to prove your case at a deposition-you do not. You prove your case at trial-and only at trial. Contrary to popular belief, attorneys are human too; they get tired. When you answer a question with a yes or no response, the attorney works harder. Keep that in mind!

3. MAKE SURE THE QUESTIONING ATTORNEY ASKS A CLEAR QUESTION. If you do not understand the question, or you think you could answer it more than one way, ask the attorney to either repeat or rephrase the question. Make sure the attorney keeps the question short and to the point. The longer the question is the greater the possibility that you will answer it incorrectly. Make sure the attorney is asking only one question at a time. If you hear two questions, and your attorney does not say anything, ask the deposing attorney which question he would like you to answer first.

4. DO NOT SPECULATE OR GUESS ABOUT THE ANSWER. Answer the question only if you have first-hand knowledge of the incident in question. Let us assume that the attorney-using our slipping house example-asks you about conditions found in the expansive soil after the soil was tested. Although you may have bought the house as new construction and actually saw the work being done on the lot, you would have to guess or speculate about whether the soil was properly graded. You don’t have to know these things. Here your answer would be “I don’t know.” It’s that simple.

5. DO NOT ANSWER A QUESTION THAT ASKS YOU TO STATE ALL FACTS THAT SUPPORT YOUR CONTENTION OR DEFENSE. Using our example, assume your attorney filed an answer or response to the buyer’s complaint and alleged that the statute of limitations has run on the buyer’s claim and therefore, the buyer is barred from any recovery. The attorney asks you at the deposition to state your facts that support this defense. Your response is simply I do not know. Moreover, you really do not have to know. That is your attorney’s job-not yours. Close to this type of unfair questioning technique is where you’ve already responded to written questions under oath (interrogatories) and the attorney wants you to elaborate on your written answer, or explain it to him. Do not worry, tell the attorney that you prepared those responses with your attorney’s assistance and therefore, you cannot answer the question at the deposition without his assistance. You might also be surprised how many attorneys forget-or never knew-that these types of questions are improper and unfair to ask at a deposition. In fact, the deposing attorney runs a risk of sanctions if he continues to pursue this line of questioning.

6. PAUSE BEFORE YOU ANSWER A QUESTION. By pausing, you give yourself time to make sure you understand the question. You also give your attorney time to make or interpose an objection to the question if he’s inclined to do so. You may also want to remember that if your attorney objects on the ground that the question is “unclear” or “vague,” then maybe you should agree and ask that the question be rephrased.

7. DO NOT ANSWER QUESTIONS WHEN YOU ARE TIRED. Mental fatigue starts to set in after about 30 or 40 minutes of answering questions when you’re in a deposition. Do not be afraid to ask to take a break. Do this as often as necessary. You do yourself a disservice by trying to get the deposition over with and never request a break. You run a big risk of giving sloppy responses that will come back to haunt you at trial-I guarantee it!

8. THE DEPOSING ATTORNEY IS NOT YOUR FRIEND. No matter how friendly or accommodating the deposing attorney is, he works for the other guy and has his reasons for being nice to you. This is one of my favorite tactics. The witness is often lulled into a false sense of security and wants to start helping me find the answer I’m looking for. Be courteous, but be vigilant. Listen carefully and do not forget how to properly answer the question.

9. DON’T BE AFRAID TO ASK TO SPEAK WITH YOUR ATTORNEY. You have your attorney with you to help you. There is nothing wrong with asking to stop the deposition so you can speak with your attorney for a moment. You do not want to overdo this, but 2 or 3 times during a 4-hour deposition is okay. And remember, if you follow these rules and answer the questions as I’ve suggested, you will be surprised how few times you will actually need to speak with your attorney during the deposition.

10. DO NOT BE ANXIOUS TO LEAVE. Psychology plays a big role at a deposition. If the deposing attorney sees that you are relaxed, comfortable, and not in a hurry to leave his office, he is likely to make it a short deposition if he can. However, if he sees that he is putting you through a nightmare and that you cannot wait for the first break to occur, he will prolong the deposition and perhaps even become somewhat belligerent in his questioning technique. He knows that by doing so, there is a good possibility in resolving the case sooner to his client’s satisfaction. You certainly will not want to go to trial and endure a similar or worse session in court.

If you remember these points, I guarantee that your deposition will be a more favorable experience. It may even demonstrate to the opposing party that you’re confident about your legal position and are not afraid to go to court if necessary.

Copyright (c) 2004 Frank D. Granato. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder unless credit is attributed to the author.

Recall Roundup: 88,809 Buicks, Acadias, and Saturn Outlooks

Posted by Sergei Lemberg, Esq. on September 28th, 2008

According to the National Highway Traffic Safety Administration (NHTSA):

Outlook vehicles currently or previously registered in the following states: Alaska, Colorado, Connecticut, Delaware, Idaho, Illinois, Indiana, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Hampshire, New Jersey, New York, North Dakota, Ohio, Pennsylvania, Rhode Island, South Dakota, Utah, Vermont, West Virginia, Wisconsin, Wyoming, and the District of Columbia. If a buildup of snow or ice on the windshield or on the wipers restricts the movement of the wiper arm, the windshield wiper linkage may become detached from the motor shaft and the wipers may become inoperative. If this were to occur, driver visibility could be reduced, which could result in a vehicle crash. Dealers will install a new wiper crank arm, driver’s side link, and a crank arm nut. The recall is expected to begin during October 2008. Owners may contact Buick at 1-866-608-8080, GMC at 1-866-996-9463, Saturn at 1-800-972-8876, or at MyGMLink on http://www.gm.com/recall.

The Employee Free Choice Act

Posted by Sergei Lemberg, Esq. on September 28th, 2008

Attorney Randy Enochs, who writes a great blog for news junkies, is sitting in the guest blogger’s chair today. He talks about the Employee Free Choice Act and what it means to you.

Sixty years ago, 31.8% of the workforce had membership in a union. This past year, that number was at 12.0%, down 12.5% from 2005, reports the Bureau of Labor Statistics. There may be a plethora of reasons why union membership in the United States is steadily declining into nonexistence, but the Employee Free Choice Act (H.R. 800) hopes to eliminate some of the more severe causes by amending portions of the National Labor Relations Act (NLRA).

As currently codified in the NLRA, the first step in the union election process requires the union to file a petition supported by a showing of interest from at least 30% of the “employees” in the group that the union seeks to represent, typically called the “bargaining unit.” This is done by using authorization cards, which are individual forms signifying a worker wishes to be represented by the union. The authorization cards must be signed and dated within six months of when the union files its petition to be valid. If the threshold 30% is obtained, and all other potential challenges are defeated (an employer can challenge the appropriateness of the unit, for example) and the employer does not voluntarily recognize the union (this would require the support of more than half of the bargaining unit), the National Labor Relations Board (NLRB) then schedules a supervised election in which members would vote on whether or not to unionize. An election can take the NLRB weeks and even months to set up.

While an election is being held, an employer has a right to express its support for or opposition to unionization, with limitations. An employer cannot persuade employee votes by threatening to retaliate against positive union votes nor can it promise to enhance employee benefits in return for negative union votes. Often times an employer walks the fine line between its expression for support or opposition and violating the “Laboratory Conditions” (General Shoe Corp., 77 NLRB 124) the NLRB hopes to cultivate and maintain during elections.

After an election is held, a party that wishes to challenge the the outcome of the election must file objections within seven days after the election. The NLRB regional director will then conduct an investigation to determine whether or not any of the charges have enough merit to justify a hearing into them. In addition to protesting the outcome of an election, a party can also file unfair labor practice charges. A hearing on such charges will be held in front of an Administrative Law Judge.

This current union election procedure seems too arduous and vulnerable for employer influence on the outcome, which is why back on February 5, 2007, Rep. George Miller (D-Calif.) introduced the Employee Free Choice Act (EFCA) in the House, for the third time. By the end of February, the EFCA had gained 233 cosponsors, which is more cosponsors it had ever received in the past, and on March 1, 2007, passed in the House by a recorded vote of 241 – 185 (99% of Democrats supporting, 94% of Republicans opposing). The EFCA now faces the Senate where, according to many pundits, its chances look bleak and an almost certain veto from the President-if it makes it that far. Though the EFCA’s reality seems dim, the changes it seeks to attain are worthy of discussion.

The EFCA seeks to make three big changes to the NLRA. First, the bill, if passed, would allow employees to form unions by signing cards authorizing union representation thereby eliminating the election process if 50% plus one employee sign the cards in favor. Secondly, the bill establishes harsher penalties for employers who violate employee rights when workers seek to form a union. And lastly, the Act would institute new mediation and arbitration processes for first-contract disputes. It is the elimination of elections and the use of signed cards to authorize unions that has caused the most stir.

Proponents of the bill say the EFCA will eliminate any negative employer influence on the outcome of a union election while those opposed to the bill argue that the relatively quick nature of union authorization and elimination of elections under the EFCA is not in the best interest of workers because of the important role elections serve. There is also the issue of the voter privacy that is stripped with the EFCA.

Professor Matt Bodie states that while a an overwhleming majority of labor law professors probably support the EFCA and that there is strong evidence that anti-union campaigns that occur during the election period do have strong effects, it is hard to ignore the problem posed by the elimination of campaigns:

“[T]here would no longer be any period of time for employees to publicly consider their unionization decision. This public time is useful for employees to get information about the union, discuss what the union would mean, and weigh the costs and benefits collectively.”

This is particularly troubling, according to Professor Bodie, as “unions generally don’t compete with one another,” thus, “there are no competitive forces to create comparative advertising and information.” However, does the end of the election period really mean the end to the employer’s previous right to its opinion? If the EFCA became reality, is it far-fetched to suggest that employers might engage in anti-union campaigns when it suspects its employees are attempting to unionize? James Sherk, a Bradley Fellow in Labor Policy in the Center for Data Analysis at The Heritage Foundation, notes that NLRB data reveals that union claims that employers routinely fire workers for supporting a union happens in only 1.5 percent of elections and that labor claims of widespread intimidation are “almost entirely baseless,” according to NLRB findings. Also, who would then be informing other employees about their choice on whether or not they should choose to be a part of a union-biased members of the bargaining unit? A Washington Post editorial posits the notion that “the card-check arrangement would give labor too much power to spring unions on employers” and that perhaps the correct approach to take in rebuilding the working class calls for “beefed-up penalties for illegally firing employees and higher fines for employers who deliberately interfered with employees’ organizing rights.”

A short article in the Chicago Tribune noted that the end of the election process and institution of signed authorization cards, “obliterate[s] voter privacy in American workplaces because that basic human right has been construed by some in Washington to collide with their ambition of expanded unionism,” says current Secretary of Labor, Elaine L. Chao.

“With this undercutting of voter privacy, American workers would have no protection from efforts to get them to sign the union cards. One does not need a fertile imagination to anticipate the pressure and coercion that could occur when American workers no longer had the protection of private voting in unionization elections.”

All of this seems to suggest that the coercion stick would simply pass from the employer to the employees as Rep. John Kline (R-Minn.), an opponent to the bill, stated,

“It is beyond me how one can possibly claim that a system whereby everyone – your employer, your union organizer, and your co-workers – knows exactly how you vote on the issue of unionization gives an employee ‘free choice . . . . It seems pretty clear to me that the only way to ensure that a worker is ‘free to choose’ is to ensure that there’s a private ballot, so that no one knows how you voted. I cannot fathom how we were about to sit there today and debate a proposal to take away a worker’s democratic right to vote in a secret-ballot election and call it ‘Employee Free Choice.’”

None of the other two provisions of the EFCA have received the heat the signed authorization card provision has received and it becomes understandable why this bill is said to face imminent demise, if not at the Senate level, certainly with the veto power of the President. The EFCA appears to take the unionization process from one side of the spectrum to the complete opposite when the best answer may lie either somewhere in the middle or with strenghtening penalties to avoid the problems with what is already in place, according to many experts. Either the EFCA is going to need revising with respect to the card-authorization provisions to please both sides of the aisle and the President or the EFCA is going to have to wait for a more pro-labor Senate and Executive. Even with the laundry list of supporters for the EFCA, the manipulation of the manner in which Americans are accustomed to voting might be to high a price to pay for union representation.

Canadian Lemon Law Clarified

Posted by Sergei Lemberg, Esq. on September 27th, 2008

I had the pleasure of guest blogging for the Canadian “Law is Cool” blog, and in my post contrasted Canadian Lemon Law with Lemon Laws in the U.S. (Canada doesn’t have province-specific lemon laws, but instead has the national Canadian Motor Vehicle Arbitration Plan (CAMVAP).

A short time after Law is Cool posted my entry, the General Manager of CAMVAP posted a response. That was quick! His perspective (below) is illuminating, so I thought Lemon Justice readers might be interested in the details of lemon law for our neighbors to the north.  I have no basis to doubt Mr. Moody’s assertions about the fairness of the arbitration process in Canada, but I will say that most arbitration programs run by Attorneys General in the United States lay similar claims which I don’t believe are fully accurate. For instance, as I pointed out on the Lemonjustice blog in March, statistics don’t bear out these arbitration programs’ claims to neutrality.

Just look at the New York Lemon Law Arbitration Program’s statistics available online.  The program screens applications — that is, to be accepted into the arbitration program, a consumer has to document 4 repairs or 30 days out of service for a vehicle, which are the New York Lemon Law requirements.  However, it turns out that only 50% of all cases admitted into the program turn out in favor of a consumer.  In contrast, virtually 100% of cases with 4 repairs/30 out-of-service days in which we represent consumers turn in the consumers’ favor.

How come? Well, there is an easy answer.  In my experience, most manufacturers will vigorously defend cases in arbitration, sending one or two lawyers to each hearing, usually accompanied by the dealer and dealership service representatives.  These folks know the law, know the facts, and can easily out-argue a consumer who shows up on his or her own.

Regardless, this is Mr. Moody’s response. I’m honored that he responded and am glad to be part of the discussion.

Motor Vehicle Lemon Laws in Canada – Mr. Lemberg missed the mark with respect to his analysis of CAMVAP. The program does include awards where the arbitrator orders the manufacturer to buyback the vehicle. The arbitrators can order the manufacturer to buyback the vehicle; repair the vehicle at its expense; reimburse the consumer for repairs that have been paid for by the consumer; and, reimburse the consumer up to $500 for limited out of pocket expenses. Buybacks average about $22,000 with most vehicles that are ordered to be bought back usually being in their 2nd or early 3rd year of operation. One recent and very exceptional buyback was for just over $250,000.

The program covers vehicles that are from the current plus 4 model years old. Up until September 30th of this year, that means vehicles that are 2004 and newer are eligible. After September 30, 2008 program eligibility will be limited to vehicles from the 2005 and newer model years with program eligibility extending to 160,000 kilometers (100,000 miles.) Unlike many U.S. lemon laws CAMVAP covers used vehicles.

The CAMVAP process is free to the consumer. The hearings are held in the consumer’s home community. Manufacturers send district service staff or retired service staff to the hearings. Manufacturers do not send a lawyer. Unlike the U.S. lemon law system in all but a few states, consumers do not need lawyers. The program and its agreement for arbitration are more practical than the lemon laws.

When pre-hearing settlements, consent orders and contested awards are added together, consumers are successful about 70% of the time. Aside from the other awards, 87 vehicles were bought back by the manufacturers for a total value of 2.04 million dollars.

CAMVAP is governed by an independent board of governors that include consumer, government, dealer and manufacturer representation. All of the provinces and territories in Canada are members of CAMVAP and senior representatives from these governments participate in CAMVAP’s overall governance.

Canada’s approach to dispute resolution is considerably different than the U.S. model. The fact that the order is binding on both the consumer and the manufacturer is considered a benefit of the program. The fact that the program is free to consumers makes access available to all consumers that have a dispute with the manufacturer of their vehicle and because the program is Canada-wide, consumers are treated the same no matter their jurisdiction. This is significantly different from the patchwork quilt of lemon laws that exist in the United States. Many states have excellent well administered lemon laws, but in other states the laws are on the books with no funding, staffing or practical availability to the consumer.

For those interested in CAMVAP, please see our website. General consumer information as well as the programs annual reports is available to be viewed and downloaded.

I must disagree with Mr. Lemberg’s bottom line. CAMVAP provides consumers with an excellent program that is fast, fair, free, friendly and final. Canadians have a program that works for consumers and in many ways exceed many of the U.S. models.

Stephen Moody
General Manager
Canadian Motor Vehicle Arbitration Plan