Plaintiffs, trade associations representing automobile manufacturers, importers and distributors, commenced this action seeking a declaration that the New Car Lemon Law alternative arbitration mechanism, contained in General Business Law § 198-a (k), violates the State Constitution. Specifically, they allege that the statute deprives motor vehicle manufacturers of their right to trial by jury (NY Const, art I, § 2), abridges the Supreme Court's jurisdiction (NY Const, art VI, § 7) and constitutes an unconstitutional delegation of judicial authority (NY Const, art VI, §§ 1, 7). In addition, plaintiffs maintain that the alternative arbitration mechanism violates the New York State Administrative Procedure Act.
The original Lemon Law (General Business Law § 198-a) was enacted in 1983 to provide New York consumers greater protection than that afforded by automobile manufacturers' express limited warranties or the Federal Magnuson-Moss Warranty Act (15 USC § 2301 et seq.). Under the statute, when a manufacturer is unable to correct a defect or condition that "substantially impairs" the value of the motor vehicle after a reasonable number of attempts, the manufacturer, at the option of the consumer, is required either to (1) replace the motor vehicle with a comparable motor vehicle or (2) accept return of the vehicle and refund the full purchase price to the consumer (General Business Law § 198-a [c] ; 13 NYCRR 300.17 [b]). As originally enacted, the statute did not establish an informal dispute resolution mechanism and consumers were forced to seek these remedies in court or by means of nonbinding informal arbitration programs established by the manufacturers, procedures which often proved costly for the average consumer and resulted in long delays and unfair
Plaintiffs subsequently commenced this action and, after issue was joined, both parties moved for summary judgment. Supreme Court granted defendants' motion and declared section 198-a (k) constitutional. The Appellate Division modified by declaring a portion of the regulations implementing the statute invalid and otherwise affirmed. Plaintiffs appealed to this court on constitutional grounds (CPLR 5601 [b]) and we now affirm.
Plaintiffs contend first that section 198-a (k), which allows the consumer to unilaterally invoke the compulsory arbitration program, violates article I, § 2 of the New York State Constitution by depriving automobile manufacturers of their right to a trial by jury. Section 2 mandates that "[t]rial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever" (NY Const, art I, § 2). Thus, an examination of the constitutional sources which previously "guaranteed" a trial by jury is necessary to determine the scope of the present right.
New York's first Constitution, enacted in 1777, guaranteed trial by jury in all cases "in which it hath heretofore been used" (NY Const of 1777 art XLI). The import of that provision was to include in the constitutional guarantee all cases in
Plaintiffs concur in this interpretation of the constitutional provision but contend that they are entitled to a jury trial because the remedies created by the Legislature in the Lemon Law, acceptance of a replacement vehicle or a refund of the full purchase price (General Business Law § 198-a [c] ), are analogous to actions triable by jury at common law.
Analysis starts by recognizing that judicial remedies for breach of contract may be characterized as either "legal" or "equitable", depending on whether they were available in the common-law courts or in courts of equity (Farnsworth, Contracts § 12.2). The principal "legal" remedy to enforce a contract is a judgment awarding a sum of money. This is a type of "substitutional" relief "intended to give the promisee something in substitution for the promised performance, as when the court awards a buyer of goods money damages instead of the goods" (id.). The principal "equitable" remedy to enforce a contract is an order requiring specific performance of the contract (id.). This is a type of "specific" relief "intended to produce as nearly as is practicable the same effect that the performance due under a contract would have produced"
Turning to the Lemon Law remedies, the replacement remedy provided by the Lemon Law is analogous to specific performance; it is designed to produce, as nearly as practicable under the circumstances, the same performance promised under the contract. The remedy is equitable in nature and would not be subject to a jury trial under common law (see, supra; Independent Church of Realization of Word of God v Board of Assessors, 72 A.D.2d 554, 555). Accordingly, plaintiffs are not entitled to a jury trial under article I, § 2 of the New York Constitution when the consumer seeks the replacement remedy under General Business Law § 198-a (c) (1).
As for the refund remedy, plaintiffs maintain it is indistinguishable from the legal actions of breach of warranty (see, Emerald Painting v PPG Indus., 99 A.D.2d 891, 892; Walter Sign Corp. v Municipal St. Sign Co., 25 A.D.2d 667, 668) and revocation of acceptance and refund of the purchase price (see, Merola v Atlas Lincoln Mercury, 70 A.D.2d 950; Stream v Sportscar Salon, 91 Misc.2d 99, 109; UCC 2-608). Unlike a "legal" breach of warranty action, however, in which a consumer retains the defective vehicle and seeks damages as compensation for the breach (see, UCC 2-714 ), the refund remedy of the Lemon Law permits the consumer to seek rescission to undo the wrong and return to the status quo ante (see, Matter of Teller, 277 App Div 937, 938, amended 277 App Div 1016).
Furthermore, compared to an action for revocation of acceptance under UCC 2-608, in which the buyer first revokes acceptance of the product and then pursues an action to recover the consideration paid, the revocation and cancellation of the contract do not occur prior to litigation under the Lemon Law. The distinction is critical. Actions similar to the action under UCC 2-608 for the return of the purchase price after a party has fully rescinded a contract, actions upon a rescission, are considered actions at law (see, Vail v Reynolds, 118 N.Y. 297, 302). By contrast, actions for rescission to restore the status quo ante are considered actions in equity (id.). They are "not founded upon a rescission, but [are] maintained for a rescission" and the plaintiff offers in his complaint to return
The Lemon Law refund remedy is an action seeking a rescission and restoration of the status quo ante, similar to an action for restitution, and is equitable in nature (see, Tull v United States, 481 U.S. 412, 422). It would not have been triable by jury under the common law (Phoenix Mut. Life Ins. Co. v Conway, 11 N.Y.2d 367, 370, supra; JIHL Assocs. v Frank, 107 A.D.2d 662, 663) and is not entitled to a jury trial under article I, § 2 of the New York Constitution. That incidental fees and charges are recoverable under the Lemon Law refund remedy (see, General Business Law § 198-a [c] ) does not compel a contrary conclusion; a party may receive full relief in an equitable action and the awarding of fees as an incident of the equitable relief sought to restore the status quo ante does not disturb the equitable nature of the action (see, Jamaica Sav. Bank v M. S. Investing Co., 274 N.Y. 215, 222-223). Consequential damages, which are recoverable in a legal action for breach of contract, are not recoverable under the statute (see, Givens, Practice Commentaries, McKinney's Cons Laws of NY, Book 19, General Business Law § 198-a, at 315).
Plaintiffs next contend that the compulsory arbitration mechanism implemented by General Business Law § 198-a (k) abridges the constitutionally guaranteed jurisdiction of the Supreme Court.
Legislation which affects the jurisdiction of the Supreme Court is not necessarily void, however. The Constitution gives the Legislature the "power to alter and regulate the jurisdiction and proceedings in law and in equity" (NY Const, art VI, § 30). It may award jurisdiction to other tribunals,
The Supreme Court has lost no jurisdiction as a result of General Business Law § 198-a (k) because the jurisdiction secured to it by the Constitution does not attach until a claim is made litigable, that is, made the subject of a suit or litigation in a court of law (People ex rel. Swift v Luce, supra). If the consumer chooses to litigate a Lemon Law claim, the Supreme Court has full jurisdiction to adjudicate it. If the consumer chooses arbitration, the claim becomes litigable when either party seeks review of the award. Supreme Court is vested with jurisdiction to review the claim in such proceedings by applying the standards of CPLR article 75 as we have interpreted them (see, Mount St. Mary's Hosp. v Catherwood, 26 N.Y.2d 493, 508 [judicial review of compulsory arbitration pursuant to CPLR art 75 must be premised on adequate evidence in the record]). In enacting the statute, the Legislature has merely created a new cause of action and, as it has done before, awarded one of the litigants the option of choosing arbitration or judicial proceedings in the first instance (see, Executive Law §§ 297-298 [Human Rights Law]). Although the type of adjudication differs when a consumer elects arbitration, the statute does not withhold or abridge the court's "general original jurisdiction" (see, Loretto v Teleprompter Manhattan CATV Corp., 58 N.Y.2d 143, 152-153, supra).
Plaintiffs further allege that they have a constitutional right to have a court or public officer adjudicate their disputes with consumers (see, NY Const, art VI, §§ 1, 7) and that General Business Law § 198-a (k) abridges that right by unconstitutionally delegating sovereign judicial power to private arbitrators.
The Legislature may, by statute, provide for compulsory references in certain instances provided that it does not violate rights guaranteed to the parties by the Constitution (see, Schaffer v City Bank Farmers Trust Co., 269 N.Y. 336, 339-340; Steck v Colorado Fuel & Iron Co., 142 N.Y. 236, 250-251; Glass v Thompson, 51 A.D.2d 69, 75-76; Siegel, NY Prac § 379). As we have stated, however, plaintiffs are not entitled to a jury trial for claims arising under the Lemon Law and therefore adjudication by arbitrators in the first instance is permissible under the Constitution (see also, CPLR 4317 [b] [authorizing a reference without consent of the parties]).
The dissent refers to language found in the Mount St. Mary's decision stating that the Legislature may not create ad hoc arbitration tribunals, unlimited by rules of law or evidence, to resolve disputes (Mount St. Mary's Hosp. v Catherwood, 26 N.Y.2d 493, 505, supra). The court continued, however, that a legislative delegation to an arbitration tribunal is constitutional if there are "standards to guide the delegate body" and judicial oversight "to assure that there is a reasonable basis for the action by [it] in compliance with the legislative standards." (Id.)
The General Business Law, and the regulations implementing it, carefully outline standards to guide the arbitrators and authorizes judicial oversight to insure a reasonable basis for the decision. Thus, the statute and rules provide that before undertaking their duties arbitrators must be trained in the required procedural techniques and in the responsibilities they assume under the program (13 NYCRR 300.7 [e]) and
Thus, arbitrators are selected pursuant to detailed standards, the procedures they must follow are specified, the grounds for relief defined and their determinations are subject to judicial review under article 75 of the CPLR to ensure compliance with these standards (General Business Law § 198-a [k]).
The dissent expresses apprehension over the deference afforded to arbitration proceedings generally. However, Lemon Law arbitrators, unlike others, are not given broad powers to interpret substantive case law when rendering a decision (see, dissenting opn, at 192-193). Rather, they are required to follow a specific procedure outlined in the statute and regulations to resolve fact-specific disputes and grant one of only two types of specific relief. Inasmuch as compulsory arbitration is involved, judicial review under CPLR article 75 is broad, requiring that the award be in accord with due process and supported by adequate evidence in the record (see, Caso v Coffey, 41 N.Y.2d 153, 156; Mount St. Mary's Hosp. v Catherwood, 26 N.Y.2d 493, 508, supra). The award must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78 (Caso v Coffey, supra, at 158). If the arbitrator fails to follow the statutory standards, the award should be vacated for exceeding the legislative grant of authority (see, Mount St. Mary's Hosp. v Catherwood, 26 N.Y.2d 493, 506, supra, quoting Matter of Guardian Life Ins. Co. v Bohlinger, 308 N.Y. 174, 183). Finally, the court's coercive power is available to ensure
Although the dissent's argument proceeds on the premise that something has been taken away from the courts, it concedes the statute creates a new cause of action and a new remedy and does not violate the constitutional provision contained in article VI, § 7 (dissenting opn, at 193). The Legislature has merely created a new limited class of disputes and provided a procedure for resolving them, much in the same way it removed automobile claims from judicial cognizance by the No-Fault Insurance Law (see, Montgomery v Daniels, 38 N.Y.2d 41, 57, supra).
Finally, the Legislature has provided for accountability in several ways. It has set forth the procedures to be followed and the elements of the claim entitling a consumer to recovery, defining the arbitration mechanism, the elements of the claim and the relief to be accorded and ensuring that its mandate be followed by providing for the expanded judicial review available in compulsory arbitration.
Accordingly, we find no merit to plaintiff's claim that the statute unconstitutionally abridges the powers of the judiciary or the dissent's argument that it violates fundamental concepts of separation of powers or accountability.
Finally, plaintiffs argue that the alternate arbitration mechanism established under the Lemon Law violates the State Administrative Procedure Act by not requiring that the arbitrator's decision include findings of fact, conclusions of
Plaintiffs claim that the arbitration violates their right to procedural due process, raised for the first time in the Appellate Division, is beyond our review (see, Matter of Barbara C., 64 N.Y.2d 866, 868).
Accordingly, the order of the Appellate Division should be affirmed, with costs.
This appeal challenging the compulsory arbitration provisions of the State's Lemon Law (General Business Law § 198-a [k]) raises disturbing questions about when and under what circumstances the Legislature may assign the task of adjudicating civil claims, which is ordinarily reserved to the sovereign, to a private dispute-resolution specialist. Because I cannot agree with the manner in which the majority has resolved this weighty question, I dissent.
At the outset, it is important to identify precisely what the Legislature has done by enacting the compulsory arbitration provisions that are the subject of this appeal (General Business Law § 198-a [k]). First, it has singled out a class of commercial disputes, i.e., consumer breach of warranty claims arising out of automobile sales, and established a mandatory remedy of replacement or repair, provided certain simple procedural steps are taken (General Business Law § 198-a [b], [c]; see, Givens, Practice Commentaries, McKinney's Cons Laws of NY, Book 19, General Business Law § 198-a, at 311-315). Next, it has substituted for traditional judicial adjudication
Thus, although it is fair to conclude, as the majority has done, that the Lemon Law has technically established what may be characterized as a new, legislatively created cause of action (majority opn, at 184), it cannot be denied that the gist of the legislative effort was to remove this class of disputes from the courts and to place the responsibility for their resolution in the hands of undoubtedly more efficient, and less costly, private dispute-resolution professionals, acting under the supervision of State administrators. As one commentator has observed this obviously well-intended consumer-oriented legislation rests on the premise that "an entirely new compulsory judicial structure can be erected by an elected official to solve certain types of disputes" (Givens, op. cit., at 316). Whether this "breathtaking concept" (id.) passes constitutional muster is a troubling question worthy of close scrutiny.
It has been held that the legislative powers possessed by the sovereign State cannot be delegated to a private entity (Matter of Fink v Cole, 302 N.Y. 216; Builders' Council v City of Yonkers, 106 Misc.2d 700, 703, affd 79 A.D.2d 696). It would also seem obvious that the inherently coercive authority possessed by the judicial branch of government also cannot be delegated to private entities, who are not accountable to the public either through the elective process or the strictures of the Public Officers Law. Indeed, our citizens' respect for and willingness to submit to the notion of peaceful dispute resolution depends, in large measure, on the fact that in our system the process is conducted not by other private citizens, but rather by public officials who act, at least theoretically, on behalf of the body politic as a whole. Since one of the primary functions of government is to keep the peace by resolving private disputes among citizens, I would reject the notion that this function can simply be legislatively delegated to private dispute-resolution specialists with no public accountability. Yet, that is precisely what the Legislature has done in enacting General Business Law § 198-a (k).
Furthermore, there can be little doubt that the function General Business Law § 198-a (k) assigns to private arbitrators is judicial in nature. Under the statute, manufacturers are compelled to submit to binding arbitration breach of warranty disputes that differ very little from those that formerly would have been adjudicated in the courts. Arbitrators are empowered to take evidence (13 NYCRR 300.13), to subpoena witnesses and documents (300.10 [e]), and make binding determinations of fact and law (300.17 [i]). These traits are unique characteristics of the sovereign judicial function (see, Hecht v Monaghan, 307 N.Y. 461, 469 ["`(a) judicial inquiry investigates, declares, and enforces liabilities as they stand on present or past facts and under laws supposed already to exist'"]; Matter of Metz v Maddox, 189 N.Y. 460, 472 ["(t)he essence of a judicial proceeding is that it decides something and that its decision is conclusive on the parties"]; Matter of Nash v Brooks, 251 App Div 616, 618 ["`(t)o adjudicate upon, and protect the rights and interests of individual citizens, and to that end to construe and apply the laws, is the peculiar province of the judicial department'"]).
Contrary to the conclusion of the majority (majority opn, at 185), the judicially approved, long-standing practice of compulsory references to private dispute intermediaries does not furnish legitimizing precedent for what the Legislature has done here. New York has traditionally recognized two types of Referees: Referees "to hear and report" and Referees "to hear and determine" (see, CPLR 4301; Judiciary Law former § 115
Nor is the problem posed by this delegation of a sovereign function to a private entity answered by the availability of the purportedly heightened standards of judicial review that are applicable to awards resulting from compulsory, as distinguished from voluntary, arbitration. In Mount St. Mary's Hosp. v Catherwood (26 N.Y.2d 493), the court held that, in addition to the extremely limited review ordinarily afforded to other arbitration awards, compulsory arbitration awards must be tested under the somewhat more exacting CPLR article 78 standards ordinarily applied to administrative agency determinations, because those standards are necessary to ensure that the litigant receives at least the minimum consideration that constitutional due process requires. Due process is implicated, of course, because the individual has been required by government to submit to the authority of an arbitrator. While the use of such heightened review may resolve the due process problem posed by compulsory arbitration laws, however, it does not satisfactorily address the entirely separate problem — not addressed in Mount St. Mary's — arising from the delegation
Moreover, the majority's reliance on the Mount St. Mary's standard for judicial review of compulsory arbitration awards is open to serious question. The Mount St. Mary's court noted that "if, indeed, the Legislature purported to provide ad hoc arbitration tribunals to resolve * * * disputes without limitation to rules of law, it would have acted unconstitutionally", but went on to assert that the constitutional problem is ameliorated by the existence of "standards to guide the delegate body" and adequate judicial oversight "to assure that there is a reasonable basis for the action by [it] in compliance with [those] standards." (26 NY2d, at 505, supra [emphasis supplied].) Although Mount St. Mary's articulated a heightened standard analogous to that applied in article 78 proceedings in order to satisfy constitutional concerns, that standard has noticeably been eroded by this court's recent applications of the standard in the context of no-fault compulsory arbitration appeals.
In Matter of Smith (Firemen's Ins. Co.) (55 N.Y.2d 224, 232), the court summarized the modern standard of compulsory arbitration review emerging from its recent holdings (Cohn v Royal Globe Ins. Co., 49 N.Y.2d 942; Matter of Furstenberg [Aetna Cas. & Sur. Co.], 49 N.Y.2d 757; Matter of Garcia v Federal Ins. Co., 46 N.Y.2d 1040; see also, Matter of McKenna v County of Nassau Off. of County Attorney, 75 A.D.2d 815, affd 51 N.Y.2d 902) as follows: "[W]e generally will not vacate an arbitrator's award where the error claimed is the incorrect application of a rule of substantive law * * * unless it is so `irrational as to require vacatur'". Even apart from its apparent circularity, this standard is substantially less exacting than that applied in the review of the legal conclusions of administrative agencies (see, e.g., Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451). Thus, a legitimate and well-founded concern exists about what may be characterized as the excessive judicial deference to the arbitrator's legal, as well as factual, conclusions that the post-Mount St. Mary's case law seems to require. Indeed, this court's assertion in Smith that the recent cases all but preclude judicial review for error of law may well bring the current law on the subject into direct
On a more fundamental level, I have grave doubts as to whether this legislation is consistent with the basic tenets of the separation of powers doctrine. I agree with the majority (majority opn, at 183-185) that General Business Law § 198-a (k) does not, as a technical matter, effect an impermissible reduction in the Supreme Court's general original jurisdiction (NY Const, art VI, § 7), since it merely furnishes potential suitors with an alternative forum in which to pursue their claims. However, when examined from a broader, practical perspective, it is apparent that the Legislature has sought to accomplish precisely what the separation of powers doctrine forbids.
While the immediate purpose of the Lemon Law's compulsory arbitration provisions may have been to remedy the defects in the manufacturers' informal dispute-resolution systems, which were adopted in accordance with the Federal Magnuson-Moss Warranty Act and related Federal Trade Commission regulations (15 USC §§ 2310-2312; 16 CFR part 703; see, General Business Law § 198-a [g]), the overriding motivation behind the legislation was the Legislature's dissatisfaction with the cumbersome and often too slow and too expensive judicial mechanisms for resolving this type of dispute (see, Attorney-General's Mem to Governor Re: S 8342-A, Bill Jacket, L 1986, ch 799; see also, Givens, op cit., at 311-316). Accordingly, the Legislature seized upon the solution of simply bypassing the judiciary by authorizing use of private arbitrators and procedures prescribed by the Attorney-General.
The implications of this court's approval of such a solution are no less than monumental. If the Legislature may authorize
While the intention of the Lemon Law's drafters to facilitate the vindication of consumer claims was, no doubt, commendable, the method they chose — bypassing, rather than improving, the judicial process — represents an unacceptable incursion on the province of the judiciary. As Justice Brandeis observed in a different context: "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. * * * The greatest dangers to liberty lurk in insidious encroachment by men of * * * well-meaning [intention]" (Olmstead v United States, 277 U.S. 438, 479 [Brandeis, J., dissenting]). Although I am in complete accord with the goal of improving the mechanisms for resolving just consumer claims, I believe that the mechanism the Legislature has chosen is simply too disruptive of the delicate balance governing the relationship among the various
Order affirmed, with costs.