CITY OF NEW YORK
Department of Consumer Affairs v. Auto Show Corp. d/b/a Federal Auto Auction and Grace Caminske, President
CITY OF NEW YORK
DEPARTMENT OF CONSUMER AFFAIRS
| |Violation No. |
|THE DEPARTMENT OF CONSUMER AFFAIRS, |LL 67586 |
|Complainant, | |
| |License No. |
|-against- |966909 |
| | |
|AUTO SHOW CORP. d/b/a FEDERAL AUTO AUCTION and GRACE CAMINSKE, President, |Premises Address: |
|Licensees. |2870 Webster Avenue |
| |Bronx, NY 10458 |
| | |
| |Date of Decision: 3/17/03 |
A hearing on the above-captioned matter was held on January 29, 2001, February 6, 2001, and March 21, 2001, May 15, 2001 May 16, 2001, June 4, 2001 and June 5, 2001 before Administrative Law Judge Bruce Dennis. The record was left open until August 1, 2001, by which time each party submitted post-hearing memoranda of law.
APPEARING:
FOR THE DEPARTMENT:
Carole Beroff, Esq.
Supervising Inspector Dennis Fredlin, #518 [on 1/29/01 only]
Inspector Julio Mendoza, #197 [on 1/29/01 only]
Johnny Bon, Director of Personnel [on 1/29/01 only]
George Rosales [on 1/29/01 only]
Betty Arauz, Deputy Director of Consumer Services [on 2/6/01 only]
Andrew Gernavage, Consumer Complainant [on 2/6/01 only]
Ronnie May, Consumer Complainant [on 2/6/01 only]
Wanda Hernandez Then, Consumer Complainant [on 2/6/01 only]
Joshua Smith, Consumer Complainant [on 2/6/01 only]
FOR THE LICENSEE:
Edward J. Pavia, Esq.
Anthony Vollono, Service Manager
Savvas Charalambous, V.P.
The Notice of Hearing charges the Licensee with violating the following:
1. NYC Administrative Code §20-700 for engaging in deceptive trade practices by:
a) failing to post Buyer’s Guides on 8 used vehicles;
b) failing to set forth required information on Buyer’s Guides posted on 343 used vehicles;
c) improperly certifying 4 used vehicles as being roadworthy and fit for use upon the public highways; and,
d) fraudulently certifying to an undercover inspector posing as a consumer that a used 1990 Pontiac Grand Prix which he had purchased had passed the required NYS Inspection before he took possession; and,
e) by failing to disclose material facts regarding the condition of the used vehicles sold.
2. Title 6 of the Rules of the City of New York (“6 RCNY”) §1-12 for failing to comply with the Consumer Protection Law;
3. Title 6 of the Rules of the City of New York (“6 RCNY”) §2-103(g)(1)(i)[1] for selling used vehicles without complying with the requirements of VTL §301 and §417; and,
4. NYC Administrative Code §20-101 for failing to maintain the standards of integrity, honesty and fair dealing required among licensees.
Based upon the Licensee’s alleged violations of the aforesaid sections of law and those set forth in the following consumer complaints, the Department seeks the revocation of License #966909, the imposition of penalties and orders directing restitution:
Andrew Gernavage – CD5 63112
Joshua Smith – CD5-59907
Ronnie May – CD5-55441
Wanda Hernandez Then – CD5-61546
Linda Flannigan – CD5-54800
Luis Gomez – CD5-54949
Jamal Murdock – CD5-59855
Wanda Franco – CD5-62488
Deokie Persaud – CD5-59402
Joseph Barnett – CD5-68938
Lawrence Napthali – CD5-47980
Eric Chen – CD5-50368
Oliver Rayon Gordon – CD5-48623
Josefa Milan – CD5-51059
Gabriel Osorio & Fidelia Rebolledo – CD5-48934
Leroy Williams – CD5-54257
Dorett Griffiths – CD5-51660
Jose Carrion – CD5-54419
Qing Fei – CD5-46988
Ivan Rodriguez – CD5-49407
Kip Dixon – CD5-58554
Wanda Johnson – CD5-61822
Pedro Medina – CD5-55023
Brenda Perry – CD5-59943
Mark Johnson CD5-56541
Michael Culver – CD5-63877
Carmen Vasquez – CD5-63613
Tara Sturgis – CD5-65386
Pedro Ithier – CD5-51960
In the course of the hearing, the Department withdrew the following consumer complaints:
John Leon – CD5-51368
Jose Ruffino - CD5-48745
Darrell Colon - CD5-57647
Ismael Hernandez - CD5-50370
Rosa Rodriguez – CD5-48068
Ronald Thomas - CD5-47979
Nidia Cedero - CD5-46526
Linda Barnes – CD5-44206
Dialy Molina – CD5-46915 & CD5-48587
Frank Rostello – CD5-47821
Claudette Powell Robinson – CD5-61876
Cathy Robinson – CD5-48948
Christine Mercado – CD5-62559
Altagracia Sanchez – CD5-50194
Louise Morales – CD5-46612
PART ONE
THE DEPARTMENT’S CHARGES AGAINST THE LICENSEE
SUMMARY OF THE EVIDENCE:
Inspector Dennis Fredlin testified that on November 5, 1999, he visited the licensee’s premise with Inspector Julio Mendoza and observed numerous used cars displayed for sale. He testified further that they observed the following instances of deceptive trade practices, in violation of NYC Administrative Code §20-700:
• 349 vehicles displayed for sale failed to display Buyer’s Guides, as follows: 8 cars failed to display the required Buyer’s Guides; 111 Buyer’s Guides displayed on vehicles failed to set forth the make, model, year and VIN; 104 Buyer’s Guides displayed on vehicles failed to set forth a listing of some major defects that may occur in used motor vehicles; and, 116 Buyer’s Guides displayed on vehicles failed to set forth the licensee’s name and address; and,
• 4 vehicles displayed for sale fraudulently displayed current inspection stickers insofar as they were in such disrepair that they could not have passed inspection.
In support of the foregoing, the Notice of Hearing was admitted into evidence as Department’s Exhibit A. He testified further that the presence of a current inspection sticker on a vehicle conveys to a consumer that the vehicle is roadworthy and ready for delivery, and that a sticker on a vehicle that could not possibly pass inspection would be defective. The 4 vehicles were identified as follows: (1) 1993 Oldsmobile ’88 – Driver’s side window was cracked; (2) 1993 Jeep Cherokee – Driver’s side mirror was missing; (3) 1992 Ford Pacer – rear brake light lens was broken; and, (4) 1997 Geo Prism – the windshield wiper blades were not attached, and the windshield was cracked. He did acknowledge that the defects could have occurred after each vehicle was inspected.
Mr. Pavia objected to that portion of the Inspector’s testimony regarding a “Ford Pacer”, claiming there is no such vehicle. Ms. Beroff offered a flyer and vehicle listing into evidence that was issued by the licensee, noting that the vehicle in question was a “Ford Probe” and designated as Lot #163, not a “Pacer”. She noted further that the Notice of Hearing referred to the car in question as “Lot #163.” The flyer was admitted into evidence as Department’s Exhibit B.
Ms. Beroff moved to amend the notice of hearing to identify the car in question as a Ford “Probe,” arguing that the error was typographical. The motion was granted over Mr. Pavia’s objection, upon my finding that the error was de minimus and did not unfairly prejudice the licensee, insofar as the proper lot number was correctly set forth on the Notice.
On cross-examination, regarding the issue of the Buyer’s Guides: Inspector Fredlin acknowledged that only 200 vehicles had incomplete Buyer’s Guides, not 331 as set forth on the Notice of Hearing. He himself did not actually count the vehicles, and he had no recollection as to whether he or Inspector Medoza did. He did remember seeing some salespersons and approximately 40 potential buyers on the lot looking at cars. He explained that the inspection occurred on a Friday and that no auction was taking place. He noted that the flyer indicated that auto auctions were held on Tuesdays, Thursdays, Saturdays and Sundays. Regarding the issue of the 4 vehicles displaying current inspections stickers: He further acknowledged that he did not know whether the 4 vehicles were subsequently sold or whether they were repaired and reinspected before sale and delivery. In addition, he acknowledged that it was possible that the windshield of one of the subject vehicles could have become cracked after the inspection sticker was affixed. He testified further that the vehicles were displayed for sale, to be sold at an auction scheduled to take place some other time. However, he argued that it was irrelevant whether the vehicles were to be sold at a future auction or were to be sold, and that the laws and rules regarding Buyer’s Guides and current inspection stickers apply.
Inspector Mendoza testified that the model and VIN were omitted on many of the Buyer’s Guides, and the backs of many Buyer’s Guides were blank. In support, he presented notes which he and Inspector Fredlin wrote at the time of inspection. The notes were admitted into evidence as Department’s Exhibit C.
Regarding the sale of the 1990 Pontiac Grand Prix:
George Rosales testified that he was an employee of the Department of Consumer Affairs and that, on November 4, 1999, he and Inspector Dominic Dellegrazie went to the licensee’s lot, posing as consumers. Upon arriving, they were approached by one of the licensee’s employees. There was no auction going on at the time. Inspector Dellegrazie inquired about purchasing a 1990 Pontiac Grand Prix. On November 8, 1999, he returned with Inspector Dellegrazie and 2 undercover detectives from the New York Police Department. Inspector Dellegrazie spoke with a female employee with blonde hair and discussed the particulars about buying the vehicle, including but not limited to its roadworthiness and payment procedures. The employee said that the car would be inspected and that he could pay and pick it up later that same day. When they left the lot, he observed that the subject Pontiac was parked amid many other cars and was blocked in by them. He returned with Inspector Dellegrazie on November 9, 1999, in the early afternoon. He noted that the Pontiac was in the exact same spot it was in when they left the premise the day before, and was still blocked in by other cars. He assumed it had not been moved. The licensee’s employees then moved other vehicles so that the Pontiac could be moved off the lot. On cross-examination, he testified that the Pontiac had been parked against a wall, and was blocked in by 4 or 5 cars on three sides. After the cars that had been blocking the Pontiac were moved, the Pontiac was driven about 500 to 1,000 feet up a ramp leading to the street, where it was hooked up to a tow truck. He explained that the car was towed because it did not have license plates. Lastly, he testified that he himself did not inspect the vehicle.
Ms. Beroff then offered the report prepared and signed by Inspector Dominic Dellegrazie, which was marked for identification as Department’s Exhibit D.[2]
Johnny Bon testified that he is the Director of Personnel, was familiar with Inspector Dellagrazie’s signature and could therefore testify with certainty that he signed the report.
Mr. Pavia objected to its admission, arguing that it was neither sworn nor dated. The objection is overruled, pursuant to Title 6 of the Rules of the City of New York (6 RCNY) §6-35(b), which provides that “relevant evidence shall be admitted without regard to the technical or formal rules or laws of evidence in effect in the courts of the State of New York, except for rules relating to privileged communications. Hearsay evidence is admissible. Irrelevant, immaterial, unreliable, and unduly repetitious evidence may be excluded by the Hearing Officer.”
In his report, Inspector Dellegrazie states that he went to the licensee’s premise on November 4, 1999 with Inspector George “Gonzales”[3], posing as a consumer interested in buying a 1990 Pontiac Grand Prix with a mileage of 159,904. An employee, one Mario, told him that the vehicle was roadworthy and that its sales price was $1,400. He was told he could inspect it, but not drive it. He returned on November 8, 1999 with the Inspector and two undercover NYPD detectives and spoke with a clerk named Elizabeth who told him the car was roadworthy and that it was covered by a “50/50 warranty.” She explained to him that the car had too much mileage to be covered by warranty, but that if any repairs were needed, that he would only be responsible for 50% of the cost. Any repair work would be done at the licensee’s facility. He then put down a downpayment and the car was sent to be “prepped” for an additional fee of $125.00. On November 9, 1999, he returned to pick up the vehicle and pay the balance. The licensee’s employee, Mario, told him the vehicle had been inspected. However, he noted that the car was in the exact same spot it had been on the day before, blocked in by rows of cars, and looked like it had never been moved. Nevertheless, Mario placed an inspection sticker on the windshield and gave him possession of the car. Lastly, Inspector Dellagrazie stated in his report that the vehicle was then towed to a DMV test facility where it failed inspection due to a worn out tie rod, a frozen rotor and caliper, and bad break pads.
Ms. Beroff then offered a copy of the NYS DMV Inspection Rejection Notice pertaining to the subject Pontiac Grand Prix, dated November 12, 1999 and the Findings of DMV Administrative Law Judge Nancy Santiago, dated November 14, 2000, made pursuant to a hearing held before her on September 25, 2000 (Department’s Exhibits E and F, respectively[4]). The Inspection Rejection Notice shows that the Pontiac failed the emissions test and safety inspection, enumerating the following: Service Brake System, Parking Brake, Tires and Wheel Fasteners, Steering, Suspension Front End and Chassis/Frame. The Findings resulted from a hearing held after investigation of alleged violations committed by the licensee in connection with the sale of the subject Pontiac.
Mr. Pavia objected to the admission of the Findings of ALJ Santiago into evidence, arguing that they resulted from a hearing held in another venue, involving testimony and evidence not presented at the instant hearing. He also argued that the Findings are currently on appeal. Ms. Beroff responded that the Findings are admissible as an official determination rendered by a NYS Agency. Upon consideration of the arguments presented, Mr. Pavia’s objection is overruled and the Findings are hereby admitted into evidence. Insofar as neither side challenged its authenticity, the copy of the Findings is deemed to be reliable. Furthermore, insofar as the DMV case arose from the same transaction and involved the same participants, the Findings are deemed relevant to the instant proceedings. Accordingly, the Findings are admissible pursuant to 6 RCNY 6-35(b).
In her findings, ALJ Santiago determined that on November 8, 1999, a DCA undercover investigator purchased a 1990 Pontiac from the licensee, which was picked up and transported by flatbed directly to the DMV Vehicle Safety Division in Queens. At the time it was brought in, the car had 159,907 miles on it, 3 miles more than was shown on the Bill of Sale and the MV-50. Furthermore, the car displayed NYS Inspection Sticker #12854982, issued on November 8, 1999. Subsequently, on November 12, 1999, it was examined by Automotive Facilities Inspectors who concluded that the brake system was defective in that the right rear rotor was rusty, inoperative, and that a caliper was defective. Lastly, she found that the vehicle did not pass the required safety emissions and components of a NYS inspection performed by the DMV Vehicle Safety Garage.
Based upon the foregoing findings, ALJ Santiago held as follows:
• That the licensee “violated Reg. 78.13 (c) by its failure to inspect prior to delivery, in accordance with the Commissioner’s requirements and NYS inspection regulations, the 1990 Pontiac prior to delivery to its purchaser”; and,
• That the licensee “violated §417 of the VTL by falsely certifying that the sold 1990 Pontiac was in condition to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery."[5]
Mr. Charalambous testified that he is vice-president of the Licensee-corporation. He testified further that, on November 8, 1999, he drove the Pontiac to Amity for the safety and emissions tests to be conducted. He had to move some cars on the lot to get the Pontiac out. However, he could not remember where he parked it when he returned, though he conjectured that it was possible that he could have parked it in the same spot. Lastly, he testified that he could not remember on which day he drove it back.
Mr. Vollono testified as follows: He is the president of Amity Auto Repair, a licensed facility and inspection station that does all vehicle inspections and repair work for the licensee, and has been a licensed Automotive Inspector since 1995. He himself is not involved in sales. He does make repairs to sold vehicles as required by law or contract. The licensee sells vehicles at auction on Tuesdays, Thursdays, Saturdays and Sundays. The licensee will also sell vehicles to purchasers prior to auction, but only on the aforesaid days. He claimed that Buyer’s Guides only have to be posted on vehicles that are being offered for sale, and he claimed that on November 5, 1999, no cars were being offered for sale. He acknowledged that on November 5, 1999, there were vehicles on the premise that were not roadworthy. On November 8, 1999, the subject 1999 Pontiac Grand Prix was brought into Amity for inspection. It was determined that the front brake pads were bad and needed to be replaced. Further, the power steering hose, throttle body and air flow meter had to be repaired. Lastly, another left front door handle was installed and the right door handle was ordered. In support, Amity’s Repair Order dated November 8, 1999 and prepared by Shop Manager Louis Phillips, was admitted into evidence as Licensee’s Exhibit #1. Mr. Vollono testified further that he and mechanic Ronald Lawrence conducted the safety and emissions tests on the vehicle, which it passed. He noted that the mileage on the vehicle on November 8, 1999 was practically the same it was when the licensee purchased it on April 7, 1999. In support, he presented the Retail Certificate of Sale (Form MV-50) dated April 7, 1999 and the MV-50 dated November 8, 1999 (Licensee’s Exhibits #2 and #3, respectively), showing the mileage as 159,900 and 159,904, respectively[6].
Regarding the alleged defects found in the Pontiac, MR. Vollono testified as follows: (1) the tie rod: this is the rubber joint connecting the rack and pinion apparatus to the front axle. In his estimation, it was not worn to the extent that it needed replacement. (2) the rotor: this is the disk on the wheel which the brake pads push against to stop the wheel from turning. He claimed that they were not rusty to the point that they were frozen. (3) the caliper: this is the device that pushes the brake pads against the disk. He claimed that there was nothing wrong with the caliper. Regarding the emissions test, he testified that Mr. Charalambous drove it over to Amity. He believed that some vehicles had to be moved to get it out, and he did not know where he parked it when he returned. He also could not remember what day it was when he drove it over for inspection. Mr. Vollono acknowledged that he did not have the emissions report issued by the computer when the emissions test was conducted on 11/8/99. He did present a computer printout listing all vehicles that Amity tested on 11/7/99 and 11/8/99, which was marked for identification as Licensee’s Exhibit 3(a). He explained that this document shows that the Pontiac was inspected on 11/8/99, and claimed that it passed inspection by virtue of the fact that an inspection sticker was issued. Ms. Beroff objected to Exhibit #3(a)’s admission into evidence insofar as the Licensee did not establish the origin of the document. She argued further that, even if it shows that a test took place, it does not confirm that the test was validly conducted. Mr. Vollono responded that the inspection computer generates the information and it is sent up to Albany. On cross-examination, Mr. Vollono testified that he was not sure where Exhibit #3(a) came from. He acknowledged that it is not on NYS DMV letterhead. It was noted at the hearing that Licensee’s Exhibit #3(a) appears to set forth an internet address, and also has markings that appear to indicate that it was either faxed by or to an entity with the initials “HMW”.
Mr. Pavia represented that the initials are those of a law firm, “Hopkins, Kopilow & Weil”, which obtained the document. Mr. Pavia then moved to admit the transcript of the aforementioned DMV hearing into evidence to present the testimony of DMV Inspector Dennis Avitale who allegedly testified that the Pontiac had 3 more miles on it when DCA Inspector Dellegrazie received delivery. Mr. Pavia argued that all the defects complained of could have been caused during the time when DCA had the vehicle in its possession, from 11/8/99 through 11/12/99. Lastly, he argued that the DMV determination is currently under appeal, and he asked that it not be considered. MS. BEROFF objected to the admission of the DMV transcript, arguing that the arguments raised by Mr. Pavia were presented at that hearing, and were rejected by the DMV Administrative Law Judge.
PART TWO - CONSUMER COMPLAINTS AGAINST THE LICENSEE
SUMMARY OF THE EVIDENCE:
1. ANDREW GERNAVAGE - CD5-88053
Mr. Gernavage appeared and testified that the licensee deprived him of the opportunity of inspecting a vehicle before successfully bidding on it, and then was refused a refund when he discovered its defects. On 4/29/99, he went with his wife to the licensee’s premise, looking to purchase a van. When he arrived, there was an auction already in progress. An employee gave him a bid paddle. No other information, except a list of vehicles to be auctioned, was provided. He was not given a set of rules of auction at that time. His wife indicated that she liked the van on the auction block, so he approached to take a better look. An employee was sitting in the driver’s seat, and the engine was going. Mr. Gernavage asked the employee to open the hood. However, the employee said he couldn’t find the switch to open it. When Mr. Gernavage asked to see the inside of the van, the employee refused, telling him that if he was interested in the van, he should place a bid, and then he could look inside. Mr. Gernavage briefly looked inside the van by sticking his head in the window, but he couldn’t see much because the lighting wasn’t very good. He then bid on the vehicle, and was the successful bidder. Thereafter, he was then pressured by other employees to sign a receipt and pay a $500 deposit. He understood that he had to do this in order to inspect the vehicle. When he was finally given the opportunity to inspect the vehicle, he saw that wires hung down from the underside of the dashboard. When the employee by the car tried to back it up, he noted that the transmission slipped. He further observed damage to the rear interior of the vehicle in that the carpet flooring and the rear seats were badly ripped. After discovering the foregoing, he advised the employee that he would not take the vehicle. The employee told him that he “had no choice,” that he should speak to the manager, but that the manager was not there. Mr. Gernavage then returned to the licensee’s premise on 5/1/99 and 5/2/99. He finally spoke to the manager a few days later, who told him that he had to take the vehicle As Is. Mr. Gernavage testified further that the vehicle could not pass inspection, and the licensee still refused to return his $500 deposit. He indicated that he believed the deposit was refundable. In support of the foregoing, his Consumer Docket CD5-88053 and his letter to his credit card company were admitted into evidence as Department’s Exhibits G and H, respectively[7].
On cross-examination, he testified that the licensee’s employee was sitting in the driver’s seat of the vehicle in question during the auction. No one prevented him from looking in the back of the vehicle. He never received a credit from his credit card company. At the time he and his wife attended the auction, the licensee only gave him a list of vehicles to be auctioned. He was not given the Rules of the Auction until after the auction was over. When shown the Deposit Slip and Credit Receipt dated 4/29/99 (Licensee’s Exhibit #4), he testified that the licensee’s salespeople rushed him to sign the papers. Lastly, he testified that the salespeople led him to believe that he had to sign the papers before the licensee would hold the car for him to inspect it.
Mr. Vollono testified that Mr. Gernavage spoke with him on May 1st or May 2nd, 1999 and complained about cosmetic issues only. He never mentioned anything about the brakes. He told Mr. Gernavage that, although the deposit was non-refundable, he could get a credit towards the purchase of another car. He testified further that a large sign was posted on the auction block that read, “Deposits are not refundable.”
2. JOSHUA SMITH - CD5-59907
Mr. Smith appeared and testified that he went to the licensee’s premise on 5/17/98 and saw a 1998 Jeep on the lot. A salesperson approached and Mr. Smith advised that he was interested. The salesperson said that if he paid a deposit, the Jeep would not be auctioned, and he quoted him a sales price of $3,700. The salesperson did not give him any auction rules, however. Mr. Smith then went to his bank to get $300 in cash. When he returned, the Jeep was already on the auction block and people were bidding. However, the bidding was stopped and he paid the $300 deposit. He returned on 5/20/98 and paid the balance of the purchase price, tax and related fees, totaling $4,242, and took possession of the Jeep. About one week thereafter, however, the car started making noises. A mechanic-friend who inspected it advised that the manifold had a crack in it and the muffler needed replacement. On or about 6/2/98, he took the Jeep to Great Bear Auto in the Bronx. That inspection revealed that the car needed a complete tune up, the idle speed control had to be fixed, as did the engine analyzer. The serpentine belt needed to be replaced as did the valve cover gasket. Mr. Smith testified that half of the valve cover gasket was missing, and it had an oil leak. He paid Great Bear $390 for its inspection and repair of the vehicle. In support of the foregoing, his Consumer Docket CD5-59907 was admitted into evidence as Department’s Exhibit I. The Great Bear Invoice and Diagnostic Test Report, dated 6/2/98, were admitted into evidence as Department’s Exhibit J. A few days later, he went back to Auto Show and told Mr. Vollono about the cracked manifold and muffler. Mr. Vollono told him to leave the vehicle and it would be fixed for a fee of $50, said sum representing 50% of the repair cost. However, when Mr. Smith returned to pick up the car, it would not start at all. He again spoke with Mr. Vollono, who told him to come back that evening. When he returned, the car was not ready and Mr. Vollono told him to come back in a few days because he still did not know what was wrong with it. He assured him that if Auto Show could not fix it, it would give him another car. Approximately 8 days later, he returned and picked up the car. However, the following week, it started overheating and stalling. He called Mr. Vollono, who told him that he would have to pay 50% of the cost of any other repairs, or take it to another mechanic. Mr. Smith did not have any more money to repair the vehicle, so he did not drive it from June 1998 to October 1998. On 10/5/98, he took it to Pep Boys, who replaced the brake pads, rotors and universal joint for $357.94. The Pep Boys invoice was admitted into evidence as Department’s Exhibit I1. However, the car had continual problems and was not reliable.
On cross-examination, he testified that he actually did drive the vehicle about 2-3 times a week during the period from June 1998 to October 1998. He testified further that when he originally drove the vehicle home from Auto Show, the brakes did not function properly. The pedal had to be depressed all the way in order for the brakes to function.
Mr. Vollono admitted that the vehicle did have a cracked manifold and that the muffler had to be repaired. However, he explained that Mr. Smith was charged 50% of the cost because the muffler had passed inspection. Mr. Vollono maintained that the vehicle was roadworthy at the time of delivery. Any problem Mr. Smith may have had did not impair its serviceability on the public highway. He also testified that it was impossible for one half of the valve cover gasket to be missing, insofar as it comes in one piece.
3. RONNIE MAY - CD5-55441
Mr. May appeared and testified that on 3/19/99 he purchased a 1992 Ford
Explorer XLT from Auto Show for a total price of $5,920. He did not buy it at auction. A few days thereafter, he started hearing noises in the car. On 4/2/99, he brought it to Super Citgo in Bridgeport, CT. The mechanic advised him that there were problems with the head gasket, cylinder head and the 4x4. He said that the engine would eventually crack because of the problems with the head gasket. On 4/5/99, he returned to Auto Show. He left it there to be checked out by its mechanic. When he returned approximately 45 minutes later, the mechanic told him he had fixed the gasket leak. When Mr. May attempted to start the car, he heard the same noise again. He then told Auto Show that he wanted his money back. Auto Show refused, but said he could exchange the vehicle for another one. It also offered him a “50/50 extended warranty”, whereby Mr. May would be liable for 50% of any repair cost, the rest to be borne by Auto Show. He accepted the extended warranty. On or about 4/8/99, the car would no longer accelerate. Although Auto Show told him to bring the car in, it refused to pay the tow charge. Mr. May then brought the car to Super Citgo on 4/14/99 where it was determined that the head gasket was bad, causing contamination to the catalytic converter, which then had to be replaced. He paid $471 in cash. He testified further that he gave the vehicle away to a co-worker in April or May 2000. Although he did drive the vehicle, he explained that he could never drive too far. In addition to the aforesaid defects, he claimed that the brakes had to be repaired and, in July 1999, the engine and transmission failed due to the leak in the cylinder head. He testified further that he was just 18 years old when he purchased the car and, even though he purchased it directly through a salesperson, he was nevertheless charged an “auction fee.” He was unable to make many of the needed repairs because he did not have the money. He explained that he gave the car away instead of selling it because the car just had too many problems. Lastly, he testified that he is seeking restitution in the amount of the purchase price. In support of the foregoing, his Consumer Docket #CD5-55441, which contains copies of the Super Citgo invoices dated 4/8/99 and 4/14/99, was admitted into evidence as Department’s Exhibit K.
On cross-examination, he testified that when he initially drove the vehicle off of Auto Show’s lot, the car did not appear to have any problems. However, a couple of days later, the car started making noises. He did not drive the vehicle very much.[8] He asked Auto Show for a refund, but his requests were denied. He turned down Auto Show’s offer to give him another vehicle or a 50-50 Warranty.
Mr. Vollono testified that Amity Auto examined the vehicle on 4/5/99 and determined that a clamp on the radiator needed to be tightened. There was no head gasket problem. No oil was mixing with water.
4. WANDA HERNANDEZ THEN - CD5-61546
Ms. Then appeared and testified that she went to Auto Show in August and
September 1999 approximately 10 times. On 8/19/99, she sought to purchase a Ford Windstar, the purchase price of which was $6,000. She advised the salesperson, one “Chino”, that she would need financing, although her credit was not good. Chino told her that Auto Show offered financing, and that if she would pay him some “money on the side”, he would speak to the Auto Show employee that arranged financing. She then gave him $100[9], and paid a $1,000 deposit, both in cash. However, Auto Show denied the loan after performing a credit check. She was also unable to get a co-signer on the loan. In or about October or November 1999, she returned to Auto Show and asked Chino for her money back. He refused, but told her that the $1,000 could be applied towards the purchase of another vehicle. However, she could not afford any of the other vans on the lot. A Credit Receipt dated 8/31/99 was the only paper she received from Auto Show. She noted that it states that “credit must be used within 80 days.” She explained that the Auto Show employee in charge of credits and financing extended the time to 80 days, but also told her that thereafter, she would lose her money. In support of the foregoing, her Consumer Docket #CD5-61546 and the Credit Receipt were admitted into evidence as Department’s Exhibits L and L1.
On cross-examination, she was shown a Deposit Slip, dated 8/19/99 (Licensee’s Exhibit 5). She admitted signing it. She testified further that there was no auction taking place when she arrived at Auto Show. She claimed further that the Credit Receipt was never explained to her, and that the woman who prepared her paperwork assured her that her $1,000 would not be lost. The woman further assured her that she would continue to extend her time to use the credit until she found another car to buy.
Mr. Vollono testified that Ms. Then never applied for credit from Auto Show. She paid a $1,000 deposit on 8/19/99, but never returned to pay the balance and pick up the car. He became aware that she had no funds to pay the balance approximately one week later. Auto Show referred her to a lending institution. She was also offered an opportunity to choose a different vehicle and apply the $1,000 deposit towards its purchase, but she chose not to exercise her option. He was aware that her credit was denied. He emphasized that the credit receipt clearly states, “No Refunds.” On cross-examination, he admitted that he was not present at the time when Ms. Then paid the deposit. He claimed further that, most likely, Ms. Then had intended to pay for the car all in cash, because there is no indication on the Deposit Slip that she was applying for financing.
Ms. Then reiterated that Chino told her that she had to pay the deposit before she could apply for financing. Lastly, she denied Mr. Vollono’s claim that she never applied for financing.
5. LINDA FLANNIGAN - CD5-54800
The Consumer Docket of Linda Flannigan, CD5-54800, was admitted into
evidence as Department’s Exhibit M. According to the complaint contained therein, Ms. Flannigan paid Auto Show a $500 deposit for a 1993 Ford Probe on 3/18/99. She was told that the vehicle had only 70,000 miles. After she paid the deposit, she claims she “was not allowed in it.” When she was able to inspect the car, she discovered that the odometer read 127,000 miles. She then advised Auto Show that she did not wish to buy the car. However, Auto Show refused to refund her deposit, but said it would transfer $250 of her deposit towards the purchase of another car.
Mr. Vollono testified that Ms. Flannigan and two men inspected the subject vehicle while it was on the auction block, and that she was the successful bidder.
Mr. Charalambous testified that after Ms. Flannigan’s bid was accepted, he accompanied her to the deposit window. However, she said she wanted to go check the car again. She returned about 30 minutes later and paid the $500 deposit. He then prepared the paperwork, she thanked him, and then left. However, shortly thereafter, she called Auto Show and advised that she did not want the vehicle. Auto Show then advised her that $250 of her deposit would be applied to the sale of another vehicle, explaining that, in such situations, a $250 penalty applies.
Mr. Pavia argued that Ms. Flannigan’s complaint is not credible insofar as it is neither signed nor dated. He pointed out that the invoice from Newburgh Auto Auction dated 3/17/99 (from where Auto Show purchased the vehicle) set forth the actual mileage of the vehicle as 130,716, not 127,000 as claimed by Ms. Flannigan. He then questioned whether or not she actually looked at the odometer, or if she merely changed her mind after successfully bidding on the car.
6. LOUIS GOMEZ - CD5-54949
The Consumer Docket of Louis Gomez, CD5-54949, was admitted into evidence
as Department’s Exhibit N. In his unsigned complaint, he claims that on 3/20/99, he paid Auto Show a $500 deposit, but that he was not permitted to take the car for inspection.
Mr. Pavia moved for dismissal, arguing that Mr. Gomez’ unsigned statement failed to identify the vehicle in question or establish what, if anything, was wrong with it.
7. JAMAL MURDOCK - CD5-59855
The Consumer Docket of Jamal Murdock, CD5-59855, was admitted into evidence
as Department’s Exhibit O. According to the docket, Mr. Murdock went to Auto Show in early September 1998 to buy a car, and after deciding on one, paid a deposit of $1,750. However, when he went to pick it up, he found that it had been scratched all over. After complaining to “Bill”, he was told that $500 of his deposit would be applied to the purchase price of a 1992 Mercury Tracer. However, when he came back a few days later to pick it up, he found that it had been sold to someone else. He then asked Bill for his money back on 5/8/99. However, his money was not refunded. He argued with Auto Show for months thereafter. In August 1999, “Joe” told him that all he would get is $250.
Mr. Vollono testified that, on 5/28/98, Mr. Murdock made a $500 deposit on a 1991 Pontiac Grand Am, the purchase price of which was $1,500. However, the sale was not consummated because Mr. Murdock did not pick up the vehicle within 48 hours. On 6/9/98, he returned. At that time, Auto Show agreed to transfer $250 of the $500 deposit towards the purchase of another car. However, Mr. Murdock did not return again until 9/6/98, at which time the $250 credit was applied towards the purchase of a 1995 Mercury Sable. He left an additional $400 cash deposit and Auto Show gave him one week to pay the balance and pick up the car. He again did not timely return. When he did return on 9/15/98, he was a given a credit of $650 towards the purchase of yet another car: a 1996 Ford Taurus with a purchase price of $6,500. He paid an additional $800 as a deposit (now totaling $1,450) and said he would return on 9/21/98 to pick up the car. However, he did not contact Auto Show or return until 5/1/99. By that time, the 1996 Ford Taurus was no longer available. He then chose a 1992 Mercury Tracer, with a purchase price of $2,500. He paid an additional $350 deposit (now totaling $1,750), but never returned to pick up the car. In support of the foregoing, the following were admitted into evidence: Deposit Slip dated 5/28/98 evidencing the amount of $500 [Licensee’s Exhibit 6(a)]; Credit Slip dated 6/9/98 evidencing the credit amount of $250 [Licensee’s Exhibit 6(b)]; Deposit Slip dated 9/6/98 evidencing the additional amount of $400 [Licensee’s Exhibit 6(c)]; Credit Slip dated evidencing the credit amount of $650 [Licensee’s Exhibit 6(d)]; Deposit Slip dated 9/15/98 evidencing the additional amount of $800 [Licensee’s Exhibit 6(e)]; Credit Slip dated 10/2/98 showing a credit of $1,450; and, a Deposit Slip dated 5/1/99 evidencing the additional amount of $300 [Licensee’s Exhibit 6(g)].
On cross-examination, Mr. Vollono testified that Auto Show still has the total deposit of $1,750. He does not ever recall telling Mr. Murdock that he would refund all but $250. He further does not recall whether all of the subject vehicles were sold, and if when, for how much. Lastly, he testified that if the purchasers do not pick up cars, Auto Show must store them at its own expense. Furthermore, Auto Show is damaged because, as time goes on, the cars decrease in value.
8. WANDA FRANCO - CD5-62488
The Consumer Docket of Wanda Franco, CD5-62488, was admitted into evidence
as Department’s Exhibit P. According to the docket, Ms. Franco purchased a 1994 Ford Taurus from Auto Show on 4/16/00 for a total price of $3,645. Ten minutes after taking possession of the car, it began to overheat and the transmission kept slipping. She returned to Auto Show later that day. An Auto Show employee told her that she would receive a credit for $3,645, good for 30 days, to be applied towards the purchase of another car. When she advised that she just wanted her money back, her request was refused.
Mr. Vollono admitted that Ms. Franco’s car was overheating. When Auto Show offered to change the cooling fan, she refused, demanding her money back. He testified further that the transmission problem was due to the overheating of the transmission fluid. Changing the cooling fan switch would have solved the problem. He explained that he refused to return her money because the problem was relatively minor and easy to fix. It was not a serious enough problem to warrant a refund. The Taurus was ultimately sold and never returned. Ms. Franco ultimately chose a Chevrolet Lumina. However, she complained that its transmission did not shift properly. When he checked out the car, the transmission functioned properly. She returned the Lumina to Auto Show, and still has a credit.
On cross-examination, he admitted that the car should not have overheated. Auto Show still has Ms. Franco’s money. He believed that both the Taurus and the Lumina were subsequently sold. Lastly, he testified that Auto Show will only return money to a customer if there is a cloud on the title of a vehicle. He also claimed that NYS Law provides that a vendor is only obligated to return the full purchase price to a customer after it unsuccessfully attempts to repair a vehicle 3 times within a 45-day period.
9. DEOKIE PERSAUD - CD5-59402
The Consumer Docket of Deokie Persaud, CD5-59402, was admitted into
evidence as Department’s Exhibit Q. According to the Docket, she paid Auto Show a $2,000 down payment for a 1993 Chevrolet van on 1/3/99, the total purchase price of which was $3,000. Auto Show also charged her an additional $100 for using her credit card (explained to her as a 5% “pass-along charge”). Auto Show further told her that she first had to pay the deposit, which was refundable, in order to take the van for a test drive. A few days later, her husband took the van for a drive, but was dissatisfied with its performance. After many phone calls, Auto Show issued a Credit Receipt in the amount of only $1,500. Ms. Persaud believed this slip was a credit on her credit card account. However, the amount was never deducted from her credit card account and she subsequently learned that Auto Show would only apply a $1,500 credit towards the purchase of another of its vehicles.
Mr. Vollono testified that an auction was taking place on 1/3/99, that test drives of vehicles being auctioned are not available, and that Ms. Persaud was the successful bidder. Sometime after the auction, he received a letter from Ms. Persaud stating that her husband was out of business and that they therefore could not afford the van.[10] He told Ms. Persaud that Auto Show did not give refunds. He admitted that Auto Show charged Ms. Persaud an additional $100 for using her credit card. He further acknowledged that insofar as the van was purchased at auction, Mr. Persaud was charged the $395 auction fee and the $125 administrative fee.
Ms. Beroff argued that the minimum required deposit, as per Auto Show’s flyer (Department’s Exhibit B), is the greater of 25% of the sale price or $500. In the instant case, Ms. Persaud put down a deposit of $2,100. Even if she forfeited the auction and administrative fees, she was entitled to a cash refund of $1,580.
Mr. Vollono responded that it was Ms. Persaud’s choice to put down a $2,100 deposit, and that he still has a $1,500 credit to be applied towards the purchase of another vehicle. He testified further that, to his knowledge, there was not anything wrong with the vehicle. He also testified that he did not know if Auto Show subsequently sold it.
Lastly, he testified that Auto Show and Ms. Persaud settled the matter, as evidenced by a letter dated 3/7/00 from Ms. Persaud to Auto Show, which was admitted into evidence as Licensee’s Exhibit #7. In that letter, Ms. Persaud wrote that she received confirmation from then-Commissioner Jules Polonetsky that the credit receipt dated 4/17/99 is valid and without expiration date. She wrote further:
“It is very sad for people like myself who is struggling to make a living and have to take a loss like this ($600). Besides, I have to pay over $600.00 in finance charges to my credit card company. I almost lost my sanity because of this. I am not ready for a vehicle right now. I (sic) when I do I will come and select something, hoping that I will not fall into another trap.”
10. JOSEPH BARNETT - CD5-68938
The Consumer Docket of Joseph Barnett, CD5-68938, was admitted into evidence
as Department’s Exhibit R. On 10/12/99, he purchased a 1991 Ford Explorer from Auto Show for the total price of $5,935, said sum consisting of the $5,652 purchase price and a $282 credit card surcharge. He claimed that he was never told about the surcharge. He claimed further that on 11/19/99, he had to replace two of the tires at a cost of $171.53. On 11/22/99, he had to replace the muffler at a cost of $335.53. The costs are evidenced by the invoice dated 11/19/99 issued by Firestone Tire & Service Centers, contained in the docket. He seeks the return of the surcharge as well as reimbursement for the cost of the tires and muffler.
Mr. Pavia objected to Mr. Barnett’s claim for reimbursement of the surcharge upon the grounds that it was not raised in the Notice of Hearing. Ms. Beroff responded that the imposition of the surcharge is encompassed in the charge that the licensee engaged in a deceptive, unconscionable trade practice, alleged on page 5 of the Notice of Hearing.
Mr. Vollono testified that the imposition of a credit card surcharge is a standard trade practice. However, he acknowledged that Auto Show stopped this practice insofar as it ceased taking large amounts on credit cards. He testified further that the vehicle in question was inspected prior to delivery to Mr. Barnett. A NYS emissions test was performed. In support, he presented a NYS Inspection Receipt for the vehicle, issued on 10/12/99, which was admitted into evidence as Licensee’s Exhibit #8. He acknowledged that a muffler defect, if it existed, would have been detected in this inspection. He reiterated that the vehicle passed inspection. He explained further that tire treads have to be 2/32 of an inch deep at their lowest point to pass inspection. Regarding the subject vehicle, he reiterated that the tires passed inspection. He noted that the Firestone invoice does not indicate what was wrong with the tires or which tires were replaced. On cross-examination, he testified that he conducted a visual inspection of the tires. He also claimed that he conducted actual measurements.
11. LAWRENCE NAPTHALI - CD5-47980
The Consumer Docket of Lawrence Napthali, CD5-47980, was admitted into
evidence as Department’s Exhibit U[11]. According to the docket, on 4/11/98 Mr. Napthali paid Auto Show a $500 deposit towards the purchase of a 1994 Mitsubishi Gallant. Auto Show could not deliver the car to him because there was a cloud on the title. However, it refused to return the deposit. He went back approximately 6 times, and was told each time that he had a store credit, to be applied towards the purchase of another car.
Mr. Vollono testified that Mr. Napthali chose to wait and see if the title could be cleared. He claimed further that Auto Show refunded the $500 to Mr. Napthali on 8/13/98.
12. ERIC CHEN - CD5-50368
The Consumer Docket of Eric Chen, CD5-50368, was admitted into evidence as
Department’s Exhibit V. According to the docket, on 7/14/98 Mr. Chen paid Auto Show a $500 deposit towards the purchase of a 1993 Toyota Camry. He claimed that he was pressured to buy the car before the auction began. He was not given an opportunity to check the mileage or inspect the vehicle until afterward. It was then when he saw that the vehicle was dented. At that point, he told Auto Show that he did not want the car and demanded his money back. However, Auto Show refused to return the deposit.
Mr. Vollono testified that Mr. Chen had ample opportunity to inspect the vehicle, and that he actually purchased it at auction. He acknowledged that he did not speak with Mr. Chen that day. He claimed further that Mr. Chen’s credit card company charged back the $500 to the licensee because the charge was in dispute and that, therefore, his account was never debited. In support, he presented a copy of the letter from Eric Chen to Citibank, disputing the $500 on his account, which was admitted into evidence as Licensee’s Exhibit #11. In addition, he presented a letter from Merchant Services, dated 3/15/99, which states that the Licensee’s claim for payment regarding collection case C982860005 for $500 was refused. That letter was admitted into evidence as Licensee’s Exhibit #12.
13. RAYON GORDON - CD5-48623
The Consumer Docket of Rayon Gordon, CD5-48623, was admitted into evidence as Department’s Exhibit W. According to the docket, on 6/14/98, Mr. Gordon paid Auto Show a $1,000 deposit towards the purchase of a 1987 Honda Accord. He was underage at the time and did not have his parents’ consent. When he returned with his parents, demanding the deposit back, Auto Show refused and told them they would have to go to court. They filed a complaint with the Department on 7/26/98.
Mr. Vollono testified that Auto Show refunded the money to Mr. Gordon on 3/23/99. In support, he presented a copy of a check made payable to Mr. Gordon’s order, and a receipt acknowledging the refund, signed by Mr. Gordon. Those documents were admitted into evidence as Licensee’s Exhibit #13.
14. JOSEFA MILAN - CD5-51059
The Consumer Docket of Josefa Milan, CD5-51059, was admitted into evidence
as Department’s Exhibit X. According to the docket, on 10/5/98 and 10/13/98, Ms. Milan paid Auto Show a total of $5,613 to purchase a 1993 Volkswagen Jetta, said sum representing the purchase price, fees and 3% credit card usage surcharge. When she took possession on 10/13/98, she discovered that the transmission was not shifting properly and that the engine was leaking oil. When she complained to Auto Show, she was told that they would charge her 50% of the cost to repair the car. She questioned why she was charged an auction fee when she did not purchase the car at auction. She also questioned why she was charged the credit card usage surcharge and $125 “preparation fee.” On 10/23/98, she paid $45 to Hi-Tech Auto Repair for an estimate to repair the transmission and engine, which came to $2,265, a copy of which was admitted into evidence as Department’s Exhibit X1. A copy of Auto Show’s response to Ms. Milan’s complaint was admitted into evidence as Department’s Exhibit X2. In that response, Auto Show claimed that the car in question fell outside NYS Used Car Lemon Law protection because it had more than 100,000 miles. It claimed further that it had offered Ms. Milan the opportunity to switch the vehicle.
Mr. Vollono testified that Ms. Milan returned to Auto Show approximately 2 weeks after taking possession of the vehicle, complaining of a transmission problem. While driving the car himself, he noted that the “Check Engine” light came on. He concluded that the Transmission Control Module malfunctioned, causing a mechanical failure in the transmission. He further admitted that Auto Show had not permitted Ms. Milan to test drive the vehicle before she purchased it, maintaining that she purchased it at auction and explaining that she was accordingly charged the auction fee. He further admitted that, “in the very broad stroke,” she purchased the car “as is.” However, he argued that she accepted the condition of buying the car without a test drive. He claimed further that Ms. Milan told him that the battery had failed and she had to get a “jump.” He surmised that if she accidentally crossed the cables, the resulting electrical spike to the Transmission Control Module could have caused the transmission failure. He also claimed that the transmission was in satisfactory working order when Auto Show inspected it.
Ms. Beroff argued that Auto Show breached its Warranty of Merchantability in selling this defective car to Ms. Milan. Mr. Vollono responded that insofar as this car had more than 100,000 miles on it at the time of sale and delivery, it was not covered by the NYS Used Car Lemon Law protections. He testified further that he inspected the vehicle pursuant to §417 of the NYS Vehicle and Traffic Law before delivering it to Ms. Milan. He explained further that each used car sold by Auto Show is so inspected prior to delivery to each respective purchaser. Lastly, he testified that Auto Show gave her a full credit of the purchase price, which was applied to the purchase of a 1996 Mazda (which sold for more money) on 6/1/99. In support, he presented the receipt, dated 6/1/99, evidencing the sale, which was admitted into evidence as Licensee’s Exhibit #14.
15. GABRIEL OSORIO & FIDELIA REBOLLEDO - CD5-48934
The Consumer Docket of Gabriel Osorio & Fidelia Rebolledo was admitted into evidence Department’s Exhibit Y. According to the docket, on 7/15/98, they purchased a 1991 Mazda MPV from Auto Show, for the total price of $4,865 (including tax and fees). Within one hour of taking possession of the car, he returned it to Auto Show because the engine started smoking. At that time, Auto Show told him that he would have to pay 50% of the repair costs (i.e. $500), and if he wanted it repaired quickly, he would have to pay an additional $200. He agreed to have it repaired. Amity Service had the car for 3 weeks. When he picked it up, the engine still continued to smoke. Amity’s repair order, dated 8/19/98, in the amount of $700 and marked “paid”, was admitted into evidence as Department’s Exhibit Y1. The repair order indicates that the transmission was rebuilt, and the water pump and timing belt were changed.
Mr. Vollono testified that Mr. Osorio returned to Auto Show approximately one week after he purchased the vehicle (not one hour, as he alleged in his complaint). He testified further that Mr. Osorio purchased the car at auction, and that therefore no test-drive was permitted. He inspected the vehicle when Mr. Osorio returned with it, and found the transmission to be defective. He therefore rebuilt the transmission and rebuilt the transfer case. He also had to replace the water pump and timing belt. He explained that this vehicle has 4-wheel drive and the transmission problem could not be detected by the inspection required by VTL §417. He stated further that the water pump was not leaking when he conducted the original inspection, claiming that “water pumps will just go at any time.” On cross-examination, he stated that Auto Show does not test drive vehicles before auction. The integrity of the 4-wheel drive cannot be tested on a VTL
§417 inspection. When Mr. Osorio returned the car, the 4-wheel drive did not operate. The repairs should have cost approximately $3,500; however, Auto Show only charged Mr. Osorio $700. He disputed Mr. Osorio’s claim that Amity had the car for three weeks. The timing belt had to be replaced because it had been in contact with contaminated antifreeze. Lastly, he testified that Amity extended a 6-month warranty on all work performed and, despite Mr. Osorio’s claim that the problems persisted, he never returned.
16. LEROY WILLIAMS - CD5-54257
The Consumer Docket of Leroy Williams, CD5-54257, was admitted into evidence as Department’s Exhibit Z. According to the docket, on 3/2/99, Mr. Williams purchased a 1991 Lexus LS 400, which had a mileage of 85,202, from Auto Show for the price of $11,819.43. However, within two miles from the point of purchase, it broke down. Mr. Williams had the car towed back to Auto Show. However, Auto Show refused to refund the purchase price or the tow charge. Mr. Williams charged that Auto Show violated the Used Car Lemon Law and filed a complaint with the Department of Consumer Affairs. In its responding letter dated 4/8/99, Auto Show claimed it repaired the car’s transmission at no cost to Mr. Williams. However, Mr. Williams did not want to take the car. Auto Show threatened to charge him a storage fee. Mr. Williams eventually took the car.
Mr. Vollono conceded that this vehicle was not roadworthy when sold to Mr. Williams.
17. DORETT GRIFFITHS - CD5-51660
The Consumer Docket of Dorett Griffiths, CD5-51660, was admitted into evidence as Department’s Exhibit AA. According to the docket, on 9/22/98, Ms. Griffiths purchased a 1994 Hyundai Elantra, which had a mileage of 77,699, for $2,758.93. However, after taking possession, she was unable to drive it off of Auto Show’s lot because the battery was dead and the ignition was defective. In addition, one of the rear passenger doors was “not operating.” These conditions existed despite the fact that the car displayed a current inspection sticker. Auto Show kept the car to repair it. Two days later, on 9/24/98, she returned to pick up the car. However, after driving it off the lot, it broke down in the middle of the street. She had it towed back to Auto Show and was told that the car had a transmission problem. Auto Show assured her they would fix the car and that he could pick it up in three days. However, the car was not ready until 10/15/98, causing her great inconvenience. At that time, Auto Show advised her that she had to pay $300 because the transmission had to be rebuilt (pursuant to Auto Show’s “50-50” repair policy). Refusing to pay, she left the car there. When she returned on 10/21/98, Mr. Vollono told her that the reason she was being charged $300, which was half the repair cost, was because the transmission had to be rebuilt as opposed to repaired. Ms. Griffiths claims that she never authorized Auto Show to rebuild the transmission. She claims further that Mr. Vollono denied her request for an itemized bill and refused to release the car to her unless she paid the $300. Under duress, she signed Amity’s Work Order and paid the $300. A copy of the Work Order, dated 10/21/98, was admitted into evidence as Department’s Exhibit AA1. In addition, Mr. Vollono told her that the car was not under any warranty because its mileage was unknown. Ms. Beroff argued that (1) the consumer did not authorize Auto Show to rebuild the transmission; (2) Auto Show sold the consumer a car that was not roadworthy at the time of delivery as was evidenced by the fact that the car originally would not start and that its transmission broke down within a week; (3) the consumer should not have had to pay the $300 towards the cost of repair; and, (4) Auto Show should have paid the $50 tow charge.
Mr. Vollono testified that on 9/22/98, Auto Show changed the battery because the original one would not hold a charge. After changing the battery, Ms. Griffiths took possession, but returned several days later complaining of a problem with the front end, that the car would not idle properly and that the rear passenger door was not operating properly. Mr. Vollono determined that the front struts (shock absorbers) were weak and had to be replaced. However, he claimed that the condition of the shock absorbers does not affect a vehicle’s roadworthiness. In addition, he determined that the car needed a tune-up. Regarding the rear door, he discovered that the child lock was on, and he simply had to disengage it. On 9/28/98, the complainant’s husband brought the car back on a tow truck because it had a transmission problem. At that time, Mr. Vollono agreed to replace the transmission with a used one, at no cost. Rather than have it replaced, Mr. Griffiths gave a verbal consent to have it rebuilt for $600. Auto Show then sent the car to Reliable Transmissions, which held the car for 3 weeks while it rebuilt the transmission. Ms. Griffiths later claimed that she never authorized that the transmission be rebuilt, and so Mr. Vollono refused to release the car. Subsequently, she agreed to pay $300.
Mr. Vollono claimed that the parts of the transmission that had to be replaced were internal parts and therefore impossible to detect during an inspection. He claimed further that, as part of the inspection process, Amity conducted a test drive of the vehicle, although he could not produce any records in support of the claim. On cross-examination, he admitted that Ms. Griffiths’ vehicle was not operable 4 days after she purchased it. However, he claimed that it was roadworthy when it was delivered to her after the sale.
18. JOSE CARRION - CD5-54419
The Consumer Docket of Jose Carrion, CD5-54419, was admitted into evidence as Department’s Exhibit BB. According to the docket, on 2/23/99, Mr. Carrion purchased a 1989 Ford Probe for $1,437.69. He was told by Auto Show’s employee, Luis, that the vehicle was under warranty for 30 days after sale or 1,000 miles, whichever came first. On 2/24/99, he complained to Auto Show that the transmission was slipping and that power steering fluid was leaking. Auto Show responded that it would cost him $800 to repair the car. The Department did not present any proof in support of Mr. Carrion’s claim that the vehicle had the defects complained of.
Mr. Vollono testified Mr. Carrion never complained of any defects, nor did he come back to Auto Show after he took possession of the car on 2/23/99. He argued that the case should be dismissed because the Department failed to present any supporting evidence, such as an estimate from an auto repair shop.
19. QING FEI - CD5-46988
The Consumer Docket of Qing Fei, CD5-46988, was admitted into evidence as Department’s Exhibit CC. According to the docket, on 3/23/98, she purchased a 1991 Mitsubishi for $2,494. She claims that she was not allowed to test-drive the car before purchase. A salesperson told her that the car was in good condition, and that it was covered by a 30-day warranty. The next day, 3/24/98, the car’s engine went dead. On 3/26/98, she had the car towed to Auto Show at an expense of $92. Auto Show told her that it would repair the vehicle, but that she had to pay 50% of the cost (i.e. $650). She agreed under duress, because she needed the car. Auto Show advised her that it would rebuild the engine. When it did not work, Auto Show advised that it would install another rebuilt engine. However, two weeks went by, and Auto Show never repaired the car, and it further refused to refund Ms. Fei’s money. Instead, Auto Show insisted that she choose another car. On 4/16/98, she selected another car but, when she took it for a test drive, she discovered it had light and brake problems. She again asked for a refund, and again Auto Show refused. She therefore wound up with having paid a total of $2,586,[12] and no car. She then filed a complaint with DCA.
Mr. Vollono testified that Ms. Fei was given a credit towards the purchase of another car. On 4/25/98, she purchased a 1992 Mitsubishi Gallant, without any further complaint.
Administrative Notice of the Department’s Mediation Notes contained in the Consumer Docket establish that on 7/15/98, Ms. Fei notified the Department that she was satisfied with the car.
20. IVAN RODRIGUEZ - CD5-49407
The Consumer Docket of Ivan Rodriguez, CD5-49407, was admitted into evidence as Department’s Exhibit DD. According to the docket, on 4/28/98, Mr. Rodriguez purchased a 1992 Jeep Eagle for $4,109. On 5/4/98, he had to bring the car to Amity because the transmission broke down. Amity charged him ½ of the repair cost, in the amount of $600.
Mr. Vollono testified that the vehicle had been inspected by Amity prior to the sale. A safety inspection was performed whereby the care was put on a lift, and the brakes, axles and bushings were examined. It was then placed on a dynamometer and an emissions test was conducted. He acknowledged that Mr. Rodriguez brought the car back to Amity about 6 or 7 days after he purchased it, complaining of transmission trouble. Upon examination, Mr. Vollono determined that the car needed either a transmission repair or a new transmission. He gave Mr. Rodriguez the option of replacing the transmission with a used one, free of charge, or of having the existing transmission rebuilt for the price of $600. An extended warranty for 6 months or 6,000 miles was also offered. Mr. Vollono conjectured that Mr. Rodriguez might have damaged the transmission (which was electronic) when he got a battery jump. Ultimately, Mr. Vollono recommended that the transmission be rebuilt, which Mr. Rodriguez agreed to do, paying $600.
Ms. Beroff noted that Auto Show failed to properly set forth the Odometer Disclosure Statement on the MV-50 Form.
21. KIP DIXON - CD5-58554
The Consumer Docket of Kip Dixon, CD5-58554, was admitted into evidence as Department’s Exhibit EE. According to the docket, on 9/4/99, he purchased a 1989 Acura Legend for $2,770. Twenty-three days later, on 9/27/99, he returned the car to Auto Show, complaining of transmission and other problems. He was told by Amity that the transmission had to be rebuilt, that the alternator and front rotors had to be replaced, and other repairs needed to be made. Amity quoted him a price of $1,350 to make the repairs, which was almost one-half the purchase price of the car itself. He asked for a refund. Auto Show refused to return his money.
Mr. Vollono testified that the mileage of the car when Mr. Dixon purchased it was 143,537. The car was therefore not covered by the Used Car Lemon Law protections. He acknowledged that the motor mounts were worn and that the car needed transmission work. He further acknowledged that Auto Show did not perform an emissions test on the vehicle before Mr. Dixon purchased it because Mr. Dixon was going to take it to New Jersey. However, a visual inspection was conducted. He claimed that a road test was conducted and that there were no transmission problems detected. Although he did observe that the motor mounts were worn during the inspection, he argued that the law did not require that they be replaced prior to selling the car because they did not impact on the roadworthiness of the vehicle. Lastly, he confirmed that the alternator did need to be replaced. On cross-examination, he testified that the car was required to have a working transmission at the time of delivery. He also confirmed that the transmission was slipping when Mr. Dixon returned with the car three weeks after the sale.
22. WANDA JOHNSON - CD5-61822
The Consumer Docket of Wanda Johnson, CD5-46988, was admitted into evidence as Department’s Exhibit FF. According to the docket, on 2/22/00, she purchased a 1988 Jeep Cherokee for $3,141.77. Immediately after buying the car, while driving it home, she heard the car make a banging noise. The next day, 2/23/00, she brought it back to Amity, which charged her $150.00 to install wheel bearings on the rear differential. On 2/25/00, she went to Budget Muffler & Brake Center because the rear end of the car was still making noise. Budget charged her a $40 estimate fee, and noted that the transmission mount made the exhaust bracket hit the cross-member, and that the track bar was falling out.
Mr. Vollono testified that the vehicle’s mileage upon delivery was 114,493. Amity had to replace 2 wheel bearings on the rear differential. He claimed that the condition of wheel bearings do not impact on the roadworthiness of a vehicle. He testified further that Ms. Johnson returned the vehicle, received a credit and applied it toward the purchase of another car, a Mazda MPV, on 5/8/00. He claimed that she was satisfied with the Mazda. In support of his testimony, the Credit Slip, MV-50 and the Bill of Sale of the Mazda were collectively admitted into evidence as Licensee’s Exhibit #15.
23. PEDRO MEDINA - CD5-55023
The Consumer Docket of Pedro Medina, CD5-55023, was admitted into evidence as Department’s Exhibit GG. According to the docket, on 3/24/98, he purchased a 1987 Acura Legend, which had a mileage of 55,653, for $2,960. However, when he took it home, he discovered that the windshield was broken. He then returned to Auto Show, which charged him $400 to repair it. He charged the repair on his American Express Card on 3/28/98 (the statement for which was included in the Docket).
Mr. Vollono testified that Mr. Medina had not paid the full purchase price on 3/24/98. The car was left at Auto Show until 3/28/98, when he returned to pay the $400 balance and pick up the car.
24. BRENDA PERRY - CD5-59943
The Consumer Docket of Brenda Perry, CD5-59943, was admitted into evidence as Department’s Exhibit HH. According to the docket, on 6/8/99, she purchased a 1992 Mercury Topaz, which had a mileage of 92,030, for $2,353.90. Although her mechanic initially found no problems with it, four days later, the power steering failed. She further discovered that the front end was out of alignment and that the transmission was failing. She returned the car to Auto Show on 6/14/99. Auto Show charged her $175 to fix the power steering. However, she claims that Auto Show failed to properly repair it. She brought it back again on 6/29/99 for Auto Show to repair the power steering and the transmission. Auto Show responded that she would have to pay Amity $700 for the repairs. She then left the car to be repaired. When her boyfriend picked up the car on 7/5/99, he discovered that the problems had not been corrected. The car was again left with Amity. She then returned on 7/12/99, only to discover that it was still not repaired. From 7/26/99 through 12/15/99, she repeatedly went back, and was still told the car was not yet repaired.
Mr. Vollono moved to dismiss Ms. Perry’s claim upon the ground that her own mechanic initially advised her that there were no problems with the car. He therefore argued that this could not be considered a road-worthiness case. He further claimed that the car was not under any statutory warranty because it had over 100,000 miles on it. On 6/14/99, to correct the power steering problem, Amity installed inner and outer tie rod ends (which attach to the rack and pinion steering), for which Ms. Perry paid $175. He argued that the condition of the tie rods does not affect the roadworthiness of a car. However, he did acknowledge that the steering problem would only have been detected through a test drive, and that because Ms. Perry purchased the vehicle at auction, she was not given the opportunity to do so. It is for that reason that Auto Show offers a “50/50” repair deal to customers who purchase cars at auction. Lastly, he testified that Ms. Perry never paid the $700 to repair/rebuild the transmission. He had no further recollection regarding what happened with the car.
25. MARK JOHNSON - CD5-56541
The Consumer Docket of Mark Johnson, CD5-56541, was admitted into evidence as Department’s Exhibit II. According to the docket, on 5/6/99, he purchased a 1992 Nissan Maxima for $6,126. That same day, he returned the car because it could not go in reverse, and because a fog light was missing. He paid Amity $500 to rebuild the transmission. However, after he picked up the car on 5/20/99, he discovered that the warning light continued to flash, the air flow meter was broken, and that the transmission kept slipping in all gears. Consequently, he returned to Amity on 6/7/99. Contained in the complaint docket are Amity repair orders dated 6/7/99, confirming that the transmission needed to be rebuilt due to slipping in all gears. Thereafter, on 6/17/99, he paid Reggie’s Auto Repair a total sum of $295 for an air flow meter and an engine mount. On 6/18/99, he paid Reggie’s Auto Repair $175 for a new starter.
Mr. Vollono testified that Mr. Johnson purchased the aforementioned car on 5/6/99 and that, on or about 5/8/99, he brought it back complaining of a transmission problem. He was given three options: (1) to replace the transmission with another used transmission; (2) to have the transmission rebuilt, for a charge of $500 (including a warranty for either 6,000 miles or 6 months); or, to choose a different vehicle. Mr. Johnson chose to have the transmission rebuilt and paid Amity $500. After this was done, he returned to Amity, because the transmission continued to slip. Amity sent the transmission back to the rebuilder, who installed a speedometer sensor, free of charge. Thereafter, he never voiced any other complaints regarding the transmission.
Mr. Pavia objected to the admission into evidence of the bills from Reggie’s Auto Repair because they failed to set forth Mr. Johnson’s name or identify the vehicle.
26. MICHAEL CULVER – CD5-63877
The Consumer Docket of Michael Culver, CD5-63877, was admitted into evidence as Department’s Exhibit KK[13]. According to the docket, on 6/19/00, he paid Auto Show a $500 deposit towards the purchase of a 1993 Chevy K-1500. He advised the salesperson that he was underage, and further told him that he needed to apply for financing. The salesperson responded that financing “shouldn’t be a problem,” and referred him to Clover Commercial Corp. However, the finance company denied his application because he was not of legal age and did not have a sufficient income. When he returned to Auto Show seeking a refund of his $500, Auto Show refused, despite the fact that its salesperson incorrectly told him he could get financing.
Mr. Vollono failed to present any evidence to rebut the consumer’s claim.
27. CARMEN VASQUEZ - CD5-63613
The Consumer Docket of Carmen Vasquez, CD5-63613, was admitted into evidence as Department’s Exhibit LL. According to the docket, on 4/4/00, she paid Auto Show a $300 deposit towards the purchase of a 1992 Hyundai Sonata. Thereafter, she brought her mechanic to examine it. Her mechanic determined that the car’s motor was bad. Auto Show refused to refund the deposit, and would only agree to give her a credit towards the purchase of another car. She did not find an acceptable car to purchase. When she again demanded the return of her deposit, Auto Show refused.
Mr. Vollono testified that deposits are usually non-refundable. If a customer’s mechanic says that a car is defective, and Auto Show disagrees, Auto Show will not refund the deposit. He claimed further that Ms. Vasquez asked for a credit and not a refund. Furthermore, insofar as she left the car on Auto Show’s lot for about 3 weeks, she should have been charged $25/day in storage fees.
28. TARA STURGIS - CD5-65386
The Consumer Docket of Tara Sturgis, CD5-65386 was admitted into evidence as Department’s Exhibit MM. According to the docket, on 7/1/00, she purchased a 1996 Dodge Intrepid for $6,357, and drove the car home. However, the next day, she heard it making a “knocking” noise and had it towed back to Auto Show. Auto Show charged her $780 to change the engine. When she got the car back on 7/11/00, she found that the car would not accelerate beyond 30 miles per hour. She again returned it to Auto Show. Auto Show’s mechanic said that the “timing on the engine” was not working properly, and he performed a repair. Thereafter, she picked up the car. However, it stalled on the NYS Thruway and had to be physically pushed out of the path of traffic. On 7/13/00, she brought the car over to another mechanic who recommended that the car not be driven. She then once again brought the car back to Auto Show which failed to repair the car or return her money.
Mr. Vollono conceded that the car was not roadworthy and that Ms. Sturgis should be refunded the purchase price of $6,357.
29. PEDRO ITHIER – CD5-51960
The Consumer Docket of Pedro Ithier, CD5-51960, was admitted into evidence as Department’s Exhibit NN. According to the docket, on 9/19/98, he paid Auto Show a $500 deposit towards the purchase of a 1989 Mazda MPV after having been advised by its salesman that the deposit would be returned if he could not get financing. Thereafter, he applied for financing, but was denied. When he asked that his deposit be refunded, Auto Show refused.
Mr. Vollono testified that, to the best of his knowledge, Mr. Ithier never applied for financing (although he conceded that he did know this for a fact). However, he explained that, in any event, Mr. Ithier would not have been entitled to a refund simply because he could not obtain financing.
RECOMMENDED FINDINGS AND ORDER:
PART ONE
THE DEPARTMENT’S CHARGES AGAINST THE LICENSEE
Regarding those vehicles that failed to display Buyer’s Guides or displayed incomplete Buyer’s Guides:
It is hereby determined that the 208 vehicles[14] observed by Inspectors Fredlin and Mendoza were being displayed to the public for sale. It is irrelevant whether such sale was to take place at that time or at a future auction. Accordingly, each of the subject vehicles was required to display a complete Buyer’s Guide. Insofar as the uncontroverted evidence established that they did not, the Licensee is found guilty of 208 counts of violation of Administrative Code §20-700, and is thus hereby
ORDERED to pay to the Department a fine of $31,200 computed at $150 per vehicle displayed for sale without a Buyer’s Guide or with an incomplete Buyer’s Guide, for 208 vehicles.
Regarding the 1990 Pontiac Grand Prix:
The Department proved by a preponderance of credible evidence, including the decision of DMV Administrative Law Judge Santiago, that the licensee fraudulently certified that the subject vehicle had passed the required NYS Inspection. Mr. Vollono’s testimony failed to rebut the charge. Accordingly, the licensee is found guilty of violating 6 RCNY 1-03(g)(1)(i) for failing to comply with the requirements of VTL §301 and VTL §417, and Administrative Code §20-700 for engaging in a deceptive trade practice. The licensee is hereby
ORDERED to pay to the Department a total fine of $850, computed as follows:
$500 for violation of 6 RCNY 1-03(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Regarding the 4 vehicles that displayed current inspection stickers despite each vehicle’s obvious defects:
It is determined that the Department failed to prove, by a preponderance of credible evidence, that the licensee engaged in a deceptive trade practice, in light of Inspector Fredlin’s acknowledgement that the defects could have occurred after the stickers were placed on the vehicles. Accordingly, those 4 counts alleging violations of Administrative Code §20-700 are hereby DISMISSED.
PART TWO
THE CONSUMER COMPLAINTS AGAINST THE LICENSEE
Used car buyers are protected by an arsenal of consumer protection devices, including but not limited to (1) the Used Car Lemon Law [General Business Law (“GBL”) §198-b], (2) the warranty of serviceability [Vehicle & Traffic Law (“VTL”) §417] and, (3) the prohibition against deceptive trade practices [NYC Administrative Code §20-700, et. seq. and GBL §349]. Ritchie v. Empire Ford Sale, Inc., NYLJ, November 7, 1996, at Page 25, (Yonkers City Ct.). The Used Car Lemon Law prohibits a dealer from selling a used motor vehicle (which meets certain sales price and mileage criteria[15]) to a consumer without first providing the consumer with a written warranty that covers the parts specified in the statute. The duration of the warranty varies according to the qualified vehicle’s mileage at the time of sale.[16] The statute requires the dealer or his agent to repair or, at the election of the dealer, to reimburse the consumer for the reasonable cost of repairing the failure of a covered part.[17]
The protections afforded by the Used Car Lemon Law notwithstanding, VTL §417 imposes upon dealers, without limitation, an unwaivable obligation to deliver to the purchaser a used vehicle that is in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery. Armstrong v. Boyce, 135 Misc.2d 148, 513 NYS2d 613 (City Court of NY, Watertown, Jefferson County, 1987). Pierce v. International Harvester Co., 61 AD2d 255, 402 NYS2d 674 (App. Div. 4th Dept., 1978). This section “creates a statutory ‘warranty of serviceability’ that goes beyond the implied warranties of the Uniform Commercial Code and which cannot be waived.” The scope of this warranty is not determined by specific parts, but by performance, Williams v. Planet Motor Car, Inc., 190 Misc.2d 22, 738 NYS2d 170 (Civil Court of the City of New York, Kings County, 2001), and is not waived by any contractual limitation on liability pursuant to the Used Car Lemon Law. Barilla v. Gunn Buick-Cadillac-GMC, Inc., 139 Misc.2d 496, 528 NYS2d 273 (Oswego City Court, 1988). Courts have held that “a sale of a used vehicle in New York State ‘As Is’ no longer means ‘as is’ --- but rather it now means ‘as it should be’ under the Vehicle and Traffic Law and the Commissioner’s regulations.[18]” Rice v. Buritt Motors, 124 Misc.2d 712 (Oswego City Ct. 1984). This statutory warranty is not only a matter of protection to the consumer, but is also a matter of highway safety. Natale v. Martin Volkswagen, Inc., 92 Misc.2d 1046, 402 NYS2d 156, 23 UCCRS 898 (1978). In furtherance thereof, VTL §417 requires that the dealer execute and deliver to the purchaser a written certification
“that said motor vehicle complies with such requirements of this chapter as shall be specified by the commissioner and that it is in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery” (emphasis added).
15 NYCRR 78.13, part of the regulations promulgated by the Commissioner of the Department of Motor Vehicles, provides that before such certification can be issued, the dealer must conduct, and the vehicle must meet the standards of an 18-point inspection detailed in subdivision (c) therein.[19] However, meeting such standards only partially satisfies the certification requirements of VTL §417, for the vehicle must also be “in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway at the time of delivery.” Thus, the Appellate Division, Fourth Department has held that “the certification is not limited to the 18 items listed in the regulations” (emphasis added). Helen Carter v. General Motors Corporation and Jay’s Chevrolet, 273 AD2d 804, 709 NYS2d 309 (App. Div., 4th Dept., 2000).
VTL §417 further provides that:
“the failure of the vendor to deliver to the vendee the certificate required by this section or delivery of a false certificate knowing the same to be false or misleading or without making an appropriate inspection to determine whether the contents of such certificate are true shall constitute a violation of this section. The delivery of a false certificate shall raise the presumption that such certificate was issued without an appropriate inspection” (emphasis added).
In Rayhn v. Nemer Volkswagon Corp, 77 AD2d 394, 434 NYS2d 775 (App. Div. 3rd Dept., 1980), the court found that the dealer never conducted an appropriate inspection despite the fact that he delivered the §417 certificate to the purchaser. It reached this conclusion given the myriad mechanical defects that became apparent shortly after the vehicle was delivered. The Rayhn court accordingly determined that the dealer was guilty of violating §417, not only for failing to conduct an appropriate inspection, but also for delivering a false certificate. The purchasers’ claim for rescission of the sales contract and a return of monies paid to the dealer was granted, the court finding that:
“to require the plaintiffs to accept the performance of the contract by Nemer would violate the public policy as found in section 417 and would lend judicial encouragement to putting dangerous vehicles upon the roadway.”
A prima facie showing of a defect raises a rebuttable presumption that it existed at the time of delivery [Armstrong v, Boyce, supra], requiring the dealer to prove that the required inspections were made and the defect did not exist when the used car was delivered. Ritchie v. Empire Ford Sales, NYLJ, November 7, 1996, at page 25 (Yonkers City Ct.). In Armstrong, the court further articulated that the presumption of VTL §417 is that if the required inspection was not performed, then the defects subsequently complained of existed at the time of delivery. In that case, the dealer failed to deliver the required certification, and apparently only inspected the vehicle pursuant to 15 NYCRR 78.21. Shortly after delivery, the purchaser discovered numerous defects, including but not limited to the absence of belts on the tires, the absence of shock bolts, defective rear load levelers, defective sway bar links and a worn-out coil. In addition, the bumper failed after a 30-day “warranty” period. The Court held that, had the dealer conducted a non-negligent inspection as outlined in 15 NYCRR 78.13, the problems would have been detected and corrected prior to delivery to the purchaser. It further held that, the fact that the bumper defect did not manifest itself for a period beyond thirty-day warranty period did not bar the purchaser’s recovery for the cost of the bumper.
It is noted on page 5 of its post-hearing Memorandum of Law, that the Licensee asserts that courts have upheld violations of VTL §417 in cases where both the complainant and an expert in automotive repair presented sworn testimony. While such expert testimony may have been presented in those cases, nothing in those decisions mandates that, in all such cases, sworn expert testimony be presented in order for a consumer complainant to prevail. In point of fact, the court in Barilla v. Gunn Buick Cadillac-GMC, Inc., supra, specifically outlined the circumstances under which such expert testimony would be required:
“If the time in which to report the defect as fixed by contract and the Lemon Law has, as here, expired, then the plaintiffs, to recover, simply must establish, as this plaintiff has, through expert testimony that the vehicle was in fact defective (not in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway) at the time of delivery” (emphasis added).
Thus, the Barilla court seems to require the presentation of expert testimony only in cases where the time in which to report a defect, as set by contract or the Lemon Law, where applicable, has expired.
A review of the record in the instant consumer cases establishes that most of the cases fall outside the scope of the Used Car Lemon Law and are not subject to any reporting times set by contract. Accordingly, it is determined that, in such cases, the rebuttable presumption, as articulated in Armstrong v. Boyce, supra, shall apply[20]. Furthermore, in those cases wherein the consumer failed to present sworn testimony, but the Licensee either confirmed the existence of the defects complained of, or failed to refute their existence, or failed to credibly rebut the presumption that they existed at the time of delivery,[21] the question then becomes whether or not the vehicle was delivered in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway, in violation of 6 RCNY 2-103(g)(1)(i), which provides:
“No dealer shall sell or offer for sale to a person other than another dealer a second-hand automobile unless such second-hand automobile has been inspected in accordance with §301 of the Vehicle and Traffic Law and certified in accordance with §417 of the Vehicle and Traffic Law.”
NYC Administrative Code §20-701 defines, in relative part, “deceptive trade practice” as follows:
Any false, falsely disparaging, or misleading oral or written statement, visual description or other representation of any kind made in connection with the sale, lease, rental or loan or in connection with the offering for sale, lease rental or loan of consumer goods or services, or in the extension of consumer credit or in the collection of consumer debts, which has the capacity, tendency or effect of deceiving or misleading consumers.”
Of the many examples enumerated therein, the section lists “the failure to state a material fact if such use deceives or tends to deceive” as a deceptive trade practice. It has been held that the failure of a dealer to comply with the inspection and certification requirements not only violates VTL 417, but also constitutes an unfair and deceptive business trade practice under General Business Law (“GBL”) §349. 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 the plaintiff was injured. There is no requirement under GBL §349 that plaintiff prove that defendant’s practices or acts were intentional, fraudulent or even reckless. Nor, does plaintiff have to prove reliance upon defendant’s deceptive practices. Ritchie v. Empire Ford Sales, supra.[22]
In light of all of the foregoing, if, in each case, it is determined that the licensee sold and delivered used cars to consumers without properly complying with the requirements of VTL 417, then it must be concluded that the Licensee violated 6 RCNY 2-103(g)(1)(i) as well as Administrative Code §20-700, et seq. Furthermore, as a consequence thereof, each respective consumer would be entitled to restitution in the amount of the purchase price, upon surrender of the vehicle to the Licensee[23], as well as incidental damages, including repair costs. Williams v. Planet Motor Car, Inc., supra[24]. In addition, the Licensee would be subject to administrative penalties for those violations, where applicable.
6 RCNY 2-103(e) provides that “Licensees will be held responsible for statements, representations, promises or acts of agents, representatives or salesmen on or away from the premises of the licensee.” Thus, if it is determined that the Licensee or any of its salespersons, agents or representatives misled a consumer into paying a deposit or actually purchasing a vehicle, or failed to disclose additional charges, or charged or attempted to charge a consumer monies to repair vehicular defects which should not have been present in the first place, the Licensee will be held to have engaged in a deceptive trade practice, as defined by Administrative Code §20-701.
Lastly, it is noted that in many of the consumer complaints, allegations were made that the Licensee imposed charges above and beyond the quoted purchase price and/or imposed surcharges for making payments on their credit cards. Although the evidence presented, either by a consumer’s testimony or by the Licensee’s admission, may have established a violation of 6 RCNY 2-103(i)[25], no recitation of violations of this section was set forth in the Notice of Hearing. Accordingly, any claims for penalties sought by the Department for violations of this section of law shall not be entertained, on due process grounds, insofar as to do otherwise would be unfairly prejudicial to the Licensee. However, the Notice of Hearing does allege that the Licensee engaged in various deceptive trade practices concerning each such consumer transaction. If determined to be so by a preponderance of credible evidence, the Licensee may be found guilty of having violated Administrative Code §20-700, and thus liable to pay restitution to the respective consumer complainant.
Accordingly, the aforementioned 29 consumer complaints are hereby decided as follows:
1. Andrew Gernavage – CD5-88053
[Summary of Evidence set forth on pg. 10 herein]
Mr. Gernavage established by a preponderance of credible evidence that the licensee’s employees refused to allow him to inspect the subject vehicle before paying a $500 deposit, and then refused to refund the deposit upon his discovery that the vehicle was defective. It is determined that such action constituted a deceptive trade practice and the Licensee is accordingly found guilty of violating Administrative Code §20-700. Mr. Gernavage’s claim for restitution is sustained, and the Licensee is hereby
ORDERED to pay restitution to Andrew Gernavage in the amount of $500;
and, the Licensee is further hereby
ORDERED to pay to the Department a fine of $350 for violation of Administrative Code §20-700.
Total Restitution Due: $500
Total Fine Due: $350
2. Joshua Smith – CD5-59907
[Summary of Evidence set forth on pg. 11 herein]
It is determined from all of the credible evidence presented that the vehicle’s defects, consisting of a cracked manifold and defective muffler, became evident to the consumer shortly after delivery. Mr. Smith further credibly established that the brake pads, rotors and universal joint had to be replaced shortly thereafter.[26] It is further determined that such defects rendered the vehicle unroadworthy at the time of delivery. Mr. Vollono’s testimony that a proper inspection was conducted, that these defects were not detected, and that they nevertheless did not impact on the vehicle’s unroadworthiness was not credible. The Licensee thus failed to rebut the presumption that it failed to conduct an appropriate inspection pursuant to VTL §417, and that the defects existed at the time of delivery. In light thereof, it is further determined that the Licensee delivered a false certification as well, and failed to disclose material facts about the car’s condition. Based upon the foregoing, and the fact that the Licensee charged Mr. Smith to repair the defects, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1) for failing to comply with the requirements of VTL §301 and VTL §417, and NYC Administrative Code §20-700 for engaging in a deceptive trade practice.
It is further determined that Mr. Smith credibly proved that he paid a total of $797.94 in repair bills, in addition to the purchase price, and that he is therefore entitled to restitution. Accordingly, it is hereby
ORDERED that the Licensee pay restitution to Joshua Smith in the amount of $4,242, said sum representing the purchase price paid, upon the return of the vehicle to the Licensee[27]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay additional restitution to Joshua Smith in the amount of $797.94, said sum representing total repair costs paid by Mr. Smith. Said payment is not contingent upon the return of the vehicle to the Licensee, and the sum is computed as follows:
$ 50.00 – repair co-payment to the licensee
$ 357.94 - repair cost paid to Pep Boys to fix brakes
$ 390.00 - amount paid to Great Bear to inspect & repair vehicle; and, it is further hereby
ORDERED that the Licensee pay to the Department a total fine of $850,
computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700
Total Fine Due: $ 850
Total Restitution Due: $5,039.94
3. Ronnie May – CD5-55441
[Summary of Evidence set forth on pg. 12 herein]
Upon consideration of the testimony and supporting documentation presented, and the statutory and case law cited herein, it is determined that Mr. May credibly established that, shortly after delivery of the vehicle, it was determined that a head gasket leak caused engine and transmission failure, as well as damage to the catalytic converter. In addition, he proved that, upon notifying the licensee, it not only refused to refund his money, but also sought to charge him 50% of the repair costs. Lastly, he credibly testified that he paid $471 to another service station, Super Citgo, to further diagnose the problems, that he did not have any money to repair the vehicle, and that he eventually had to give it away. Mr. Vollono’s unsupported testimony, that the Licensee inspected the vehicle prior to delivery and that it detected no major problems was not credible. He therefore failed to rebut the presumption that the Licensee did not conduct an appropriate inspection pursuant to VTL §417 and that the defects did not exist at the time of delivery. It is thus concluded that the Licensee not only failed to appropriately inspect the vehicle, but that it delivered a false certification as well and failed to disclose material facts about the car’s condition. Based upon the foregoing, and the fact that the Licensee charged Mr. May a fee to repair the defects, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1) for failing to comply with the requirements of VTL §301 and VTL §417, and NYC Administrative Code §20-700 for engaging in a deceptive trade practice. It is further determined that Mr. May credibly proved that he paid a total of $471 in repair costs, in addition to the purchase price, and he is therefore entitled to restitution. Accordingly, it is hereby
ORDERED that the Licensee pay restitution to Ronnie May in the amount of $5,920, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[28]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay additional restitution to Ronnie May in the amount of $471, said sum representing total repair costs paid by Mr. May. Said payment is not contingent upon the return of the vehicle to the Licensee; and, it is further hereby
ORDERED that the Licensee pay to the Department a total fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $ 850
Total Restitution Due: $6,391
4. Wanda Hernandez Then – CD5-61546
[Summary of Evidence set forth on pg. 13 herein]
It is determined that Ms. Then, who presented live sworn testimony, established by a preponderance of credible evidence that the licensee’s employee, one “Chino”, fraudulently induced her to pay a $1,000 deposit to the licensee and a $100 fee to him, by leading her to believe he would obtain financing for her. 6 RCNY 2-103(e) provides that “Licensees will be held responsible for statements, representations, promises or acts of agents, representatives or salesmen on or away from the premises of the licensee.” The Licensee is thus found guilty of violating NYC Administrative Code §20-700 for engaging in a deceptive trade practice. It is further determined that Ms. Then is entitled to a refund of $1,100, despite the fact that she may have signed a credit receipt stating that no refund would be given, in light of the misleading statements made by the Licensee’s employee. Mr. Vollono’s testimony included an admission that he was not present at the time when Ms. Then paid the deposit, and he thus failed to credibly rebut the charge. Accordingly, Ms. Then’s claim for restitution is sustained. It is further determined that the licensee’s actions in misleading the consumer and then refusing to refund her deposit constituted a deceptive trade practice. Accordingly, the licensee is hereby
ORDERED to pay to the Department a total fine of $350 for violation of Administrative Code §20-700; and, the Licensee is further hereby
ORDERED to pay restitution to Wanda Hernandez Then in the total sum of $1,100, computed as follows:
$1,100 (the deposit); and,
100 (the amount paid to the Licensee’s employee
Total Restitution Due: $1,100
Total Fine Due: $ 350
5. Linda Flannigan – CD5-54800
[Summary of Evidence set forth on pg. 14 herein]
Mssrs. Charalambous and Vollono credibly testified that Ms. Flannigan successfully bid on a vehicle, and subsequently changed her mind, thus rebutting her unsworn complaint. Accordingly, Ms. Flannigan’s complaint is hereby dismissed.
6. Louis Gomez – CD5-54646
[Summary of Evidence set forth on pg. 15 herein]
It is hereby determined that Mr. Gomez’ complaint failed to establish a prima facie case. It was unsigned, unsworn and failed to not only identify a particular vehicle, but also failed to identify any defects. Accordingly, the licensee’s motion is hereby granted, and Mr. Gomez’s complaint is hereby dismissed.
7. Jamal Murdock – CD5-59855
[Summary of Evidence set forth on pg. 15 herein]
It is hereby determined that Mr. Vollono’s sworn live testimony, that Mr. Murdock paid deposits but failed to remit the full purchase price and pick up any of the vehicles in question, was more credible than the claims contained in Mr. Murdock’s unsworn complaint. Accordingly, the complaint is hereby dismissed.
8. Wanda Franco – CD5-62488
[Summary of Evidence set forth on pg. 16 herein]
In Ms. Franco’s unsworn complaint, she claimed that she purchased the subject vehicle for $3,645 and that, 10 minutes after she drove it off the lot, it began to overheat and the transmission began to slip. Mr. Vollono did not dispute these facts, but claimed that the defects were “relatively minor and easy to fix.” This testimony notwithstanding, it is determined that a vehicle that is delivered to a purchaser with a transmission that malfunctions is not in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery. It is further hereby determined that the licensee not only breached the warranty of serviceability, but also delivered a false certification, thereby engaging in a deceptive trade practice. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) and NYC Administrative Code §20-700. The Licensee is therefore hereby
ORDERED that the Licensee pay restitution to Wanda Franco in the amount of $3,645, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[29]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Restitution Due: $3,645
Total Fine Due: $ 850
9. Deokie Persaud – CD5-59402
[Summary of Evidence set forth on pg. 17 herein]
It is hereby determined that Mr. Vollono’s sworn live testimony, that Ms. Persaud bought the car in question at auction, that she voluntarily paid the $2,100 deposit and then chose to back out of the deal because her husband was unemployed, was more credible than the claims contained in Ms. Persaud’s unsworn complaint. Accordingly, the complaint is hereby dismissed.
10. Joseph Barnett – CD5-68938
[Summary of Evidence set forth on pg. 18 herein]
Mr. Vollono acknowledged that the Licensee imposed a $282 credit card surcharge, and did not deny Mr. Barnett’s claim that the licensee failed to disclose this practice. His defense, that imposing such surcharge is a “standard trade practice”, is not a meritorious defense. It is thus determined that the Licensee, in imposing such surcharge without proper disclosure, engaged in a deceptive trade practice, and it is therefore found guilty of violating Administrative Code §20-700. Mr. Barnett’s claim for restitution in the amount of the surcharge is sustained. Accordingly, the Licensee is hereby
ORDERED to pay to the Department a total fine of $350 for violation of Administrative Code §20-700; and, the Licensee is further hereby
ORDERED to pay to Joseph Barnett restitution in the total amount of $282.
Total Restitution Due: $282
Total Fine: $350
11. Lawrence Napthali – CD5-47980
[Summary of Evidence set forth on pg. 19 herein]
The Licensee did not dispute Mr. Napthali’s claim that there was a cloud on the title of the subject vehicle. Mr. Napthali is thus entitled to a refund of his $500 deposit. Although Mr. Vollono testified that the deposit was already returned, he failed to substantiate this claim with any receipt or other business record, which he could have easily produced at the hearing. Accordingly, Mr. Vollono’s unsupported testimony is deemed not credible, and Mr. Napthali’s claim for restitution is sustained. It is further determined that the Licensee’s actions in selling a vehicle with defective title and then refusing to refund the consumer’s deposit constituted a deceptive trade practice. The Licensee is therefore found guilty of violating Administrative Code §20-700. The Licensee is thus hereby
ORDERED to pay to the Department a total fine of $350 for violation of Administrative Code §20-700; and, the Licensee is further hereby
ORDERED the Licensee pay to Lawrence Napthali restitution in the total amount of $500, said sum representing the deposit paid.
Total Restitution Due: $500
Total Fine: $350
12. Eric Chen – CD5-50368
[Summary of Evidence set forth on pg. 19 herein]
It is determined that the licensee proved by a preponderance of credible evidence (consisting of Mr. Vollono’s sworn live testimony and supporting documentation) that Mr. Chen had ample opportunity to inspect the vehicle, and that his credit card account was never charged the $500 deposit. Accordingly, the complaint is hereby dismissed.
13. Rayon Gordon – CD5-48623
[Summary of Evidence set forth on pg. 20 herein]
It is determined that the licensee proved by a preponderance of credible evidence (consisting of Mr. Vollono’s sworn live testimony, a copy of its check to Mr. Gordon and a receipt signed by him) that the $1,000 deposit in question was refunded to Mr. Gordon on 3/23/99. Therefore, the claim for restitution is dismissed. However, the licensee did not dispute Mr. Gordon’s claim that it denied his parents’ demands for refund of the deposit. It is therefore further determined that the licensee’s initial refusals to refund the deposit after it was advised that Mr. Gordon was underage and did not have his parents’ consent, constituted a deceptive trade practice, and the Licensee is therefore found guilty of violating Administrative Code §20-700. Accordingly, the Licensee is hereby
ORDERED to pay to the Department a total fine of $350.
Total Fine: $350
14. Josefa Milan – CD5-51059
[Summary of Evidence set forth on pg. 20 herein]
In Ms. Milan’s complaint, she claimed that she purchased the subject vehicle for $5,613, including additional fees and surcharges, and that within two weeks of delivery, the transmission failed, and the engine leaked oil. Thereafter, she paid $45 to a mechanic for a repair estimate. Mr. Vollono confirmed that Ms. Milan returned with the car within two weeks, complaining of transmission trouble, and that a malfunction in the Transmission Control Module caused the transmission failure. It is thus determined that the vehicle was not delivered in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery. In light thereof, it is further determined that the Licensee delivered a false certification. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) for failing to comply with VTL §301 & §417, and NYC Administrative Code §20-700, for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED that the Licensee pay restitution to Josefa Milan in the amount of $5,613, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[30]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay restitution to Josefa Milan in the amount of $45, said sum representing total repair costs paid by Ms. Milan. Said payment is not contingent upon the return of the vehicle to the Licensee; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, calculated as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code § 20-700.
Total Fine Due: $ 850
Restitution Due: $5,658
15. Gabriel Osorio & Fidelia Rebolledo – CD5-48934
[Summary of Evidence set forth on pg. 21 herein]
It was uncontested that the consumer complainants purchased the subject vehicle for the total price of $4,865 (including tax and fees). Mr. Vollono confirmed that, approximately one week after the vehicle was sold and delivered, the consumers returned it because the transmission malfunctioned. He further confirmed that the transmission and transfer case were defective and had to be rebuilt. However, he claimed that insofar as the vehicle had 4-wheel drive, the transmission defects could not be detected by the inspection required by VTL §417. Upon consideration of all of the foregoing, It is determined that the testimony and evidence presented at the hearing established that the transmission defects existed at the time of delivery of the vehicle to the consumer, and that these violated the warranty of serviceability. Mr. Vollono’s testimony failed to establish a meritorious defense. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) for failing to comply with VTL §301 & §417, and NYC Administrative Code §20-700, for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED that the Licensee pay restitution to Gabriel Osorio & Fidelia Rebolledo in the amount of $4,865, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[31]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, calculated as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code § 20-700.
Restitution Due: $4,865
Total Fine Due: $ 850
16. Leroy Williams – CD5-54275
[Summary of Evidence set forth on pg. 22 herein]
It was uncontested that the consumer complainant purchased the subject vehicle for $11,819.43. Furthermore, Mr. Vollono admitted that the vehicle was not roadworthy at the time of delivery. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1) for failing to comply with the requirements of VTL §301 and VTL §417, and NYC Administrative Code §20-700 for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED that the Licensee pay restitution to Leroy Williams in the amount of $11,819.43, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[32]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $ 850
Restitution Due: $11,819.43
17. Dorett Griffiths – CD5-51660
[Summary of Evidence set forth on pg. 22 herein]
It was uncontested that the consumer complainant purchased the subject vehicle for $2,758. Furthermore, Mr. Vollono admitted that the vehicle was not operable four days after it was purchased by and delivered to the complainant. He further confirmed that the vehicle’s transmission needed to be rebuilt, and that the complainant was charged $300. Upon consideration of all of the foregoing, It is determined that the testimony and evidence presented at the hearing established that the transmission and other defects existed at the time of delivery of the vehicle to the consumer, and that they violated the warranty of serviceability. Mr. Vollono’s testimony failed to establish a meritorious defense. It is thus determined that the vehicle was not delivered in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery. In light thereof, it is further determined that the Licensee delivered a false certification. It is further determined that such actions, as well as charging the complainant $300 to rebuild the transmission, constituted deceptive trade practices. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) for failing to comply with VTL §301 & §417, and NYC Administrative Code §20-700, for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED that the Licensee pay restitution to Dorett Griffiths in the amount of $2,758, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[33]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay restitution to Dorett Griffiths in the amount of $300, said sum representing total repair costs paid by Ms. Griffiths. Said payment is not contingent upon the return of the vehicle to the Licensee; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $ 850
Restitution Due: $3,058
18. Jose Carrion – CD5-54419
[Summary of Evidence set forth on pg. 23 herein]
Mr. Vollono presented sworn live testimony that Ms. Never complained of any defects after he took delivery of the subject vehicle. It is thus determined that this testimony successfully rebutted the claims contained in Mr. Carrion’s unsworn complaint. Accordingly, the complaint is hereby dismissed.
19. Qing Fei – CD5-46988
[Summary of Evidence set forth on pg. 24 herein]
The Licensee did not dispute the complainant’s unsworn allegations that two days after she purchased and accepted delivery of the subject vehicle, it broke down, and that she then spent $92 to have it towed, and paid another $650 to Amity to have the engine rebuilt. It also did not dispute the charge that the Licensee refused to refund the purchase price. Insofar as Department records confirm the Licensee’s testimony that she was given a credit of the amount of the purchase price towards the purchase of another vehicle, and that she did purchase another vehicle without incident, she is not now entitled to a refund of the purchase price. However, the evidence establishes that the subject vehicle was not delivered in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery. In light thereof, it is further determined that the Licensee delivered a false certification. It is further determined that such actions, as well as charging the complainant $650 to rebuild the engine, constituted deceptive trade practices. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) for failing to comply with VTL §301 & §417, and NYC Administrative Code §20-700, for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED to pay restitution to Qing Fei in the total sum of $742, said sum calculated as follows:
$ 92, said sum constituting the tow charge incurred; and,
$650, said sum constituting the repair fee paid to Amity to rebuild the engine; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $850
Restitution Due: $742
20. Ivan Rodriguez – CD5-49407
[Summary of Evidence set forth on pg. 24 herein]
It was uncontested that the consumer complainant purchased the subject vehicle from the Licensee for $4,109. At the hearing, Mr. Vollono confirmed that the complainant returned to Amity with the subject vehicle within one week of its sale and delivery, and that the transmission either needed to be replaced or rebuilt. He further confirmed that Mr. Rodriguez was charged, and that he paid $600 to have the transmission rebuilt. Upon consideration of all of the foregoing, it is thus determined that the vehicle was not delivered in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery. In light thereof, it is further determined that the Licensee delivered a false certification. It is further determined that such actions, as well as charging the complainant $600 to rebuild the transmission, constituted deceptive trade practices. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) for failing to comply with VTL §301 & §417, and NYC Administrative Code §20-700, for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED that the Licensee pay restitution to Ivan Rodriguez in the amount of $4,109, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[34]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay restitution to Ivan Rodriguez in the amount of $471, said sum representing total repair costs paid by Mr. Rodriguez. Said payment is not contingent upon the return of the vehicle to the Licensee; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $ 850
Restitution Due: $4,709
21. Kip Dixon – CD5-58554
[Summary of Evidence set forth on pg. 25 herein]
It was uncontested that the consumer complainant purchased the subject vehicle from the Licensee for $2,770. At the hearing, Mr. Vollono confirmed that the complainant returned to Amity with the subject vehicle approximately three weeks after its sale and delivery, and that the transmission was slipping. He further acknowledged that the vehicle was required to have a working transmission at the time of delivery. Upon consideration of all of the foregoing, it is thus determined that the vehicle was not delivered in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery. In light thereof, it is further determined that the Licensee delivered a false certification. It is further determined that such action constituted a deceptive trade practice. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) for failing to comply with VTL §301 & §417, and NYC Administrative Code §20-700, for engaging in a deceptive trade practice. It is therefore hereby
ORDERED that the Licensee pay restitution to Kip Dixon in the total sum of
$2,770, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[35]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $ 850
Restitution Due: $2,770
22. Wanda Johnson – CD5-61822
[Summary of Evidence set forth on pg. 26 herein]
The Licensee did not dispute the complainant’s unsworn allegations that one day after she purchased and accepted delivery of the subject vehicle, it began making noises, and that she paid Amity another $150 to Amity to install wheel bearings. It also did not dispute the claim that she paid another service center a $40 estimate fee. In light of Mr. Vollono’s sworn testimony that she was given a credit of the amount of the purchase price towards the purchase of another vehicle, and that she did purchase another vehicle that was satisfactory, she is not now entitled to a refund of the purchase price. However, the evidence establishes that the subject vehicle was not delivered in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery. Mr. Vollono’s claim that the condition of wheel bearings does not impact on the roadworthiness of a vehicle is without merit. 15 NYCRR 78.13(17)(i) specifically refers to the condition of wheel bearings. In light thereof, it is further determined that the Licensee delivered a false certification. It is further determined that such action, as well as charging the complainant $150 to replace the wheel bearings, constituted deceptive trade practices. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) for failing to comply with VTL §301 & §417, and NYC Administrative Code §20-700, for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED to pay restitution to Wanda Johnson in the total sum of $190, said sum calculated as follows:
$ 40, said sum constituting the estimate fee paid; and,
$150, said sum constituting the repair fee paid to Amity to replace the wheel
bearings; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $850
Restitution Due: $190
23. Pedro Medina – CD5-55023
[Summary of Evidence set forth on pg. 26 herein]
Mr. Vollono presented sworn live testimony that Mr. Medina did not pay the full purchase price on 3/28/98 and that he returned four days later to bay the $400 balance and pick up the vehicle. It is hereby determined that this testimony credibly rebutted the claims contained in Mr. Medina’s unsworn complaint. Accordingly, the complaint is hereby dismissed.
24. Brenda Perry – CD5-59943
[Summary of Evidence set forth on pg. 26 herein]
The Licensee’s motion to dismiss upon the grounds that the complainant’s mechanic inspected the vehicle and found no problems is without merit and his hereby denied. The fact that her mechanic may not have detected any problems does not relieve the Licensee of its obligation to deliver a vehicle that is in condition and repair to render, under normal use, satisfactory and adequate service upon the public highway. At the hearing, Mr. Vollono did not dispute the claim that she purchased the vehicle on 6/8/99 for $2,353.90, that it had power steering and transmission problems and that it was never properly repaired. He further acknowledged that the vehicle had over 100,000 miles on it, and that on 6/14/99, Amity charged her $175 to fix the power steering problem. His claim that the condition of the tie rods does not affect the roadworthiness of the vehicle is without merit, insofar as their good condition is specifically listed in 15 NYCRR 78.13(17)(i). Upon consideration of all of the foregoing, it is determined that the vehicle was not delivered in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery, and that the delivered a false certification. It is further determined that such actions, as well as charging the complainant $175 to repair the power steering, constituted deceptive trade practices. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) for failing to comply with VTL §301 & §417, and NYC Administrative Code §20-700, for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED that the Licensee pay restitution to Brenda Perry in the amount of $2,353.90, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[36]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay restitution to Brenda Perry in the amount of $175, said sum representing total repair costs paid by Ms. Perry. Said payment is not contingent upon the return of the vehicle to the Licensee; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $ 850
Restitution Due: $2,528.90
25. Mark Johnson – CD5-56541
[Summary of Evidence set forth on pg. 27 herein]
Mr. Vollono confirmed that approximately two days after the complainant purchased and accepted delivery of the subject vehicle, the transmission failed. He further confirmed that Amity charged him $500 to rebuild the transmission. He also presented undisputed sworn testimony that after the vehicle was repaired, the consumer never voiced any further complaints. In light of the foregoing, it is determined that the subject vehicle was not delivered in condition and repair to render, under normal use, satisfactory and adequate service on the public highway at the time of delivery and, further, that the Licensee delivered a false certification. In addition, it is determined that such actions, as well as charging the complainant $500 to rebuild the transmission, constituted deceptive trade practices. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1)(i) for failing to comply with VTL §301 & §417, and NYC Administrative Code §20-700, for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED to pay restitution to Mark Johnson in the total sum of $500[37],
said sum constituting the repair fee paid to Amity to rebuild the transmission; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $850
Restitution Due: $500
26. Michael Culver – CD5-63877
[Summary of Evidence set forth on pg. 28 herein]
The licensee did not present any testimony to dispute Mr. Culver’s claim contained in his complaint. Thus, although the complaint was not sworn, it nevertheless credibly established that the Licensee’s employee misled him into paying a $500 deposit, despite the fact that the complainant advised him that he was underage and needed financing. It is thus hereby determined that such action on the part of the employee, as well as the Licensee’s refusal to refund the deposit, constituted a deceptive trade practice. Licensee is thus found guilty of violating NYC Administrative Code §20-700. The Licensee is therefore hereby
ORDERED to pay restitution to Michael Culver in the total sum of $500; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $350 for violation of Administrative Code § 20-700.
Total Fine Due: $350
Restitution Due: $500
27. Carmen Vasquez – CD5-63616
[Summary of Evidence set forth on pg. 28 herein]
Mr. Vollono presented sworn live testimony that Auto Show did not return the Complainant’s deposit because nothing was wrong with the vehicle. It is noted that Ms. Vasquez’s unsworn complaint did not specify the alleged defects, other than to say that the “motor was bad.” It is hereby determined that Mr. Vollono’s live sworn testimony credibly rebutted the claims contained in Ms. Vasquez’ unsworn complaint. Accordingly, the complaint is hereby dismissed.
28. Tara Sturgis – CD5-65386
[Summary of Evidence set forth on pg. 29 herein]
It was uncontested that the consumer complainant purchased the subject vehicle for $6,357. Furthermore, Mr. Vollono admitted that the vehicle was not roadworthy at the time of delivery. Accordingly, the Licensee is found guilty of violating 6 RCNY 2-103(g)(1) for failing to comply with the requirements of VTL §301 and VTL §417, and NYC Administrative Code §20-700 for engaging in a deceptive trade practice. The Licensee is therefore hereby
ORDERED that the Licensee pay restitution to Tara Sturgis in the amount of $6,357, said sum representing the purchase price paid, upon return of the vehicle to the Licensee[38]. In the event the return of the vehicle is rendered impossible due to the Licensee’s refusal or inability to accept it, the Consumer shall promptly so notify the Department’s Legal Division. Under such circumstance, the vehicle’s return shall no longer be a requirement of payment of restitution, and the Licensee shall immediately pay said sum to the Consumer; and, it is further hereby
ORDERED that the Licensee pay to the Department a fine of $850, computed as follows:
$500 for violation of 6 RCNY 2-103(g)(1)(i); and,
$350 for violation of Administrative Code §20-700.
Total Fine Due: $ 850
Restitution Due: $ 6,357
29. Pedro Ithier – CD5-51960
[Summary of Evidence set forth on pg. 29 herein]
In Mr. Ithier’s unsworn complaint, he claimed that the licensee’s salesperson told him he had to pay a $500 deposit, and that it would be returned in the event he could not obtain financing. He claimed further that when he could not obtain financing, the Licensee refused to refund the money. Mr. Vollono’s testimony consisted of an acknowledgement that he did not know for a fact whether Mr. Ithier applied for financing. He did acknowledge that, in any event, he would not have been entitled to a refund merely upon the ground of being denied financing. However, he did not address the allegation that the Licensee’s employee told him he would be eligible for a refund. Upon consideration of all of the foregoing, it is determined that the Licensee failed to successfully rebut the charges alleged in consumer complaint. It is therefore determined that the Licensee, in misleading the consumer and failing to return the deposit, is found guilty of violating Administrative Code §20-700 for engaging in a deceptive trade practice, and Mr. Ithier’s claim for restitution is sustained. The Licensee is therefore hereby
ORDERED to pay restitution to Pedro Ithier in the amount of $500; and, the Licensee is further hereby
ORDERED to pay to the Department a total fine of $350.
Total Restitution Due: $500
Total Fine: $350
It is further hereby ORDERED that:
In each case wherein the Licensee is Ordered to pay restitution in the amount of the purchase price of a vehicle to a consumer, the following shall apply:
1) If, within 30 days of the date of this Order, the licensee notifies the Department of Consumer Affairs, Legal Division, of an appropriate time and location at which the consumer may surrender the respective vehicle to the licensee, restitution shall be conditioned upon the return of each respective vehicle,[39] as well as the documentation necessary to transfer title back to the licensee for such vehicle, to the licensee. In the event the licensee fails to so notify the Department of an appropriate time and location, then payment of restitution shall not be conditioned upon the return of the vehicle.
2) In the event that the Licensee properly notifies the Department pursuant to Section 1, above, and if the consumer has sold or otherwise transferred the respective vehicle to someone other than the licensee, the Department shall send to the licensee supporting documentation to establish the value received for such vehicle, within 60 days of the date of this Order. Upon its receipt of such documentation, the licensee may, within 90 days of this Order, either:
a. deduct such amount from the respective restitution award and pay the balance to the consumer; or,
b. challenge such documentation and request a hearing on the issue of restitution, upon written notification to the Department of Consumer Affairs, Legal Division, and the Department’s Director of Adjudication.
It is further determined that, in light of the 222 findings of deceptive trade practices, in violation of NYC Administrative Code §20-700, the Licensee is unfit to hold the subject license, pursuant to Administrative Codes §20-101. It is therefore hereby
ORDERED that the License be REVOKED; and, it is further hereby
ORDERED that, in light of all of the foregoing, Licensee Auto Show Corp. d/b/a Federal Auto Auction and Respondent Grace Caminske, President of the Licensee be permanently banned from licensure by the Department of Consumer Affairs
This constitutes the recommendation of the Administrative Law Judge.
Bruce M. Dennis
Administrative Law Judge
Finding and order:
The Findings of Fact, Conclusions of Law, and the Order recommended by the Administrative Law Judge are approved.
This constitutes an Order of the Department.
Nancy Schindler
Deputy Director of Adjudication
TOTAL RESTITUTION: $61,480.27
TOTAL FINES: $46,050.00
LICENSE REVOKED
AUTO SHOW CORP. d/b/a FEDERAL AUTO AUCTION & GRACE CAMINSKE PERMANENTLY BANNED FROM LICENSURE BY THE DEPARTMENT OF CONSUMER AFFAIRS
cc: Edward Pavia, Esq.
Carole Beroff, Esq.
Department of Consumer Affairs, Legal Division
Department of Consumer Affairs, Licensing Division
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[1] The Notice of Hearing actually charges violations of 6 RCNY 2-103 et. seq. However, the details recited therein constitute allegations of violation of the more specific section, 6 RCNY 2-103(g)(1)(i). The Notice of Hearing is accordingly amended to conform to the evidence, pursuant to 6 RCNY 6-24(c).
[2] Johnny Bon, the Department’s Director of Personnel, identified Inspector Dellagrazie’s signature. Ms. Beroff explained that Inspector Dellegrazie was on leave from the Department and was unavailable to testify.
[3] It was noted that, in his report, Inspector Dellegrazie refers to Inspector George Rosales as George “Gonzales”.
[4] At the instant hearing, the Determination was marked as Exhibit E and the Rejection Notice was marked as Exhibit F. However, for purposes of chronological clarity herein, the Rejection Notice is marked as Exhibit E and the subsequent administrative determination is marked as Exhibit F.
[5] In addition to imposing penalties, ALJ Santiago revoked the licensee’s dealer registration for violation of VTL §417.
[6] There was no disagreement between the parties regarding the mileage.
[7] Originally, the letter was marked as Department’s Exhibit G and the docket was marked as Exhibit H. However, for the sake of clarity, they have been re-marked.
[8] Mr. Pavia argued that Mr. May apparently drove 1,854 miles, insofar as the Retail Certificate of Sale dated 3/16/99 (which is included in the Docket) indicates the odometer reading at 121,7678 miles, and the Super Citgo invoice dated 4/14/99 shows the odometer reading at 123,621. However, it is noted that the Retail Certificate of Sale does not indicate whether the mileage indicated therein was based on an actual reading.
[9] Mr. Pavia objected to this portion of Ms. Then’s testimony insofar as a payment to the salesperson was not mentioned in the pleadings. However, the motion is denied pursuant to 6 RCNY 6-35(b) as it is determined to be relevant to the instant proceedings.
[10] It was noted that Mr. Vollono did not present the letter at the hearing.
[11] Department’s Exhibit S was the Consumer Docket of one Claudette Powell Robinson. The Department subsequently withdrew that case. Department’s Exhibit T is a duplicate of the Consumer Docket of Louis Gomez, CD5-54949, previously admitted into evidence as Department’s Exhibit N.
[12] Said sum is comprised of the $2,2494 purchase price of the 1991 Mitsubishi, and the $92 tow charge.
[13] The Consumer Docket of one Rosa Rodriguez, CD5-48068, had been marked as Department’s Exhibit JJ. However, the Department subsequently withdrew it.
[14] 8 vehicles were observed displayed for sale without Buyer’s Guides and 200 vehicles were displayed for sale with incomplete Buyer’s Guides, as per Inspector Fredlin’s testimony.
[15] The Used Car Lemon Law does not apply to used vehicles sold for less than $1,500 or to used vehicles with over 100,000 miles at the time of sale.
[16] GBL §198-b(b)(1).
[17] GBL §198-b(b)(2), which further provides that covered parts shall at least include the following items: Engine, Transmission, Drive Axel, Brakes, Radiator Steering , Alternator, Generator, Starter & Ignition System, excluding the battery.
[18] In addition, GBL §23(2)(b) provides: “Except as otherwise permitted by law, an automobile auctioneer shall not sell or offer for sale a motor vehicle on a sale basis of “as is” or “with all faults”, or by using words of similar import at or prior to the time of sale.”
[19] This inspection is separate and apart from the less detailed annual safety and emissions inspection required by 15 NYCRR 79.21, which does not satisfy the VTL 417 inspection and certification as mentioned in 15 NYCRR 78.13(a). Both inspections are required. Armstrong v. Boyce, supra.
[20] The other two cases cited by the Licensee, Matter of Romero v. Adduci, 151 AD2d 947, 543 NYS2d 223, and Matter of Nazarian v.Jackson, 243 AD2d 916, 663 NYS2d 354, involved Article 78 reviews of the findings of the DMV Commissioner, made pursuant to DMV administrative hearings wherein DMV Inspectors happened to testify. Again, nothing in those decisions mandated the presentation of expert testimony in order for a consumer complainant to prevail.
[21] These were instances wherein the Licensee did not dispute the purchaser’s claims of defects and that he or she returned with the car within weeks of its purchase and delivery seeking repair or refund of the purchase price.
[22] It has been further held that N.Y. Gen. Bus. Law §349 is closely analogous to the New York City Consumer Protection Law, NYC Administrative Code §20-700, et seq. The two statutes are treated as similar in scope. Polonetsky v. Better Homes Depot, Inc., 185 Misc. 2d 282
[23] Pinelli v. De Paula Chevrolet, Inc, et. al., 101 AD2d 643, 475 NYS2d 551 (3rd Dept. 1984).
[24] Courts have awarded buyers both a refund and damages for repairs. Ireland v. J.L.’s Auto Sales, Inc (Justice Court, Arcadia), rem. on other grounds, 156 Misc.2d 853 (County. Court, Wayne County 1993); Natale v. Martin Volkswagen, Inc., supra. Furthermore, towing charges and other charges incurred in diagnosing problems with a vehicle have been found to constitute compensable incidental damages. Carbo Industries, Inc. v. Becker Chevrolet, Inc., 112 AD2d 336, 491 NYS2d 786 (2nd Dept. 1985).
[25] 6 RCNY 1-03(i) provides: “The selling price of an automobile by a licensed second-hand dealer shall be the price advertised, cited, quoted or marked thereon. It shall include all charges connected with the sale of said automobile and shall be the maximum charge to the purchaser. It shall be a violation of this regulation for any licensee to exact a service charge, house commission or any such like assessment above the selling price of the car.”
[26] He testified that from June 1998 through October 1998, he did not drive the vehicle because he had no more money to pay for repairs.
[27] Pursuant to the terms of the Order set forth on page 53, herein.
[28] Pursuant to the terms of the Order set forth on page 53, herein.
[29] Pursuant to the terms of the Order set forth on page 53, herein.
[30] Pursuant to the terms of the Order set forth on page 53, herein.
[31] Pursuant to the terms of the Order set forth on page 53, herein.
[32] Pursuant to the terms of the Order set forth on page 53, herein.
[33] Pursuant to the terms of the Order set forth on page 53, herein.
[34] Pursuant to the terms of the Order set forth on page 53, herein.
[35] Pursuant to the terms of the Order set forth on page 53, herein.
[36] Pursuant to the terms of the Order set forth on page 53, herein.
[37] It is determined that the repair bills from Reggie’s Auto Repair, which were included in the consumer docket do not have much probative weight insofar as they failed to identify the complainant or the subject vehicle, and are therefore not considered in assessing the claim for restitution.
[38] Pursuant to the terms of the Order set forth on page 53, herein.
[39] Rayhn v. Martin Nemer Volkswagon, supra; Vernon v. Potmankin Cadillac Corporation, 118 AD2d 698, 499 NYS2d 975 (2nd Dept.) 1986; Restatement 1s of Contracts, Restitution, §§ 65-67,
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