New York Repair-Attempt Presumption (GBL § 198-a(d))

New York codifies its “reasonable number of repair attempts” thresholds at GBL § 198-a(d). Meeting either of the two tests creates a rebuttable presumption that the manufacturer has failed to repair — shifting the burden to the manufacturer to prove otherwise.

The two tests under § 198-a(d)

Test 1 — Four-attempt rule (same defect)

The consumer meets the “reasonable number of attempts” standard when:

• The same nonconformity has been the subject of four or more repair attempts; AND
• The consumer has given the manufacturer written notice and opportunity to cure; AND
• The defect continues to exist after the four attempts.

This is the most common avenue. Four documented dealer visits for the same defect, properly followed by written notice, creates the presumption.

Test 2 — 30-day cumulative out-of-service rule

The consumer meets the standard when:

• The vehicle has been out of service for repair for a total of 30 or more days during the warranty period.
• The 30 days don’t have to be for the same defect.

The 30-day threshold matches California’s § 1793.22 30-day rule — meaningful for cases involving long parts orders or specialized repairs.

Unlike Florida’s 15-day threshold, New York requires the longer 30-day cumulative period.

Notice and opportunity to cure

For both tests, GBL § 198-a(d) requires the consumer to give the manufacturer (not just the dealer) written notice and an opportunity to cure. The notice should:

• Identify the vehicle (VIN).
• Describe the defect and prior repair attempts.
• Demand a final opportunity to repair.

New York doesn’t strictly require certified mail (unlike Florida’s § 681.104(1)(a)), but using certified mail is best practice for proof of delivery.

The “opportunity to cure” period is typically interpreted as a reasonable time — 10-30 days depending on the circumstances. After this period, if the defect persists, the consumer can proceed with Lemon Law action (court or AG arbitration).

What counts as a “repair attempt”

New York applies the same general framework as other states. A repair attempt requires:

• The vehicle was presented to an authorized service facility.
• The consumer reported the defect to be repaired.
• A repair order documents the visit.

Importantly:

• “No problem found” visits count. If the consumer reported the defect and the dealer logged it, it’s a repair attempt.
• Different symptoms during the same visit can count as multiple attempts for separate nonconformities.
• Routine maintenance doesn’t count unless the visit also addressed the lemon defect.
• Independent-mechanic visits don’t count under the Lemon Law.

What “the same nonconformity” means

For the four-attempts test, courts look at whether each visit involved the same underlying problem, not necessarily the same repair code. If your transmission was repaired four different ways for the same hesitation symptom, that counts as one nonconformity with four attempts.

”Rebuttable presumption” — what it means

The presumption is rebuttable — once the consumer meets the threshold, the manufacturer can attempt to prove the defect wasn’t substantial, didn’t impair use/value/safety, or that the buyer caused it. But the burden of proof shifts to the manufacturer.

In practice, meeting one of the § 198-a(d) thresholds typically results in either settlement or a favorable arbitration/court decision.

The 2-year / 18,000-mile window

The thresholds apply within the Lemon Law’s 2-year / 18,000-mile window from delivery. Repair attempts that occur outside this window don’t count toward the presumption.

If you’re approaching the window and your case is borderline, file court action or AG arbitration before the window closes.

What if you’re close but not over?

Borderline cases happen. New York’s four-attempt rule is somewhat harder to meet than Florida’s three-attempt rule but easier than California’s four-attempt rule with notice requirement.

Many consumers prevail on facts that don’t meet the strict presumption — courts and arbitrators apply case-by-case “reasonable number of attempts” analysis.

Bottom line

Section 198-a(d)‘s thresholds are favorable to consumers — particularly the four-attempt rule and the 30-day cumulative out-of-service rule. Document carefully, send written notice promptly, and don’t extend the negotiation indefinitely. The 2-year / 18,000-mile window is closing.

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