Respondent purchased a motor home from Petitioner on October 17, 2004. Respondent filed a Lemon Law Complaint on May 10, 2006. Mandatory arbitration was held on June 20, 2006, and a decision dated July 6, 2006 awarded Respondent $149,317. Petitioner seeks to vacate the award of the arbitrator in its entirety, or, in the alternative, requests the Court order an evidentiary trial. Respondent has filed a cross-petition to confirm the award of the arbitrator.

The record as a whole, indicates that the motor home in question was out of service many times for repair. While the Petitioner disputes the time out of service for many of the repairs, the Court notes that the motor home was at the authorized service center for 19 days in July, 2005 waiting for replacement of the windshield wiper motor. The vehicle was returned without the repair and the repair was finally made on October 6, 2005 after Respondent's husband himself undertook to have the replacement motor shipped. The windshield continued to leak up to the time of the arbitration hearing, in spite of several attempts at repair.

Petitioner argues that the arbitrator improperly applied the Lemon Law, used the standard for automobiles as opposed to motor homes, and used a previously prepared checklist provided by the attorney general which was designed for use with automobiles and was biased against the manufacturers of motor homes. [*2]

Respondent alternatively argues that the arbitrator applied the Lemon Law correctly and that the award should be confirmed.

Where arbitration is compulsory, "the standard for judicial review of the award is more exacting than in voluntary arbitration" (citation omitted) and "to be upheld, an award . . .must have evidentiary support and cannot be arbitrary and capricious" Matter of Utica Mut. Ins. Co. v. Selective Ins. Co. of Am., 27 AD3d 990 (3rd Dept. 2006).

Petitioner argues that because the form utilized by the arbitrator does not include a "reasonable days" out of service provision, the award was an improper interpretation of the statute.

General Business Law §198-a is the commonly known "Lemon Law" statute. While provision (n) specifically applies to motor homes, that provision expressly states in paragraph (1) To the extent that the provisions of this subdivision are inconsistent with the other provisions of this section, the provisions of this subdivision shall apply. While Petitioner argues therefore that "a reasonable number of attempts" must have a particular meaning only to motor homes, that phrase has already been defined in the statute and is in no way inconsistent with the provisions applying to motor homes.

The Court of Appeals also discussed the definition in the case of In the Matter of Daimler Chrysler Corporation v. Spitzer , 2006 NY Slip Op 09322 (December 14, 2006) stating: Under the statute, a presumption that the consumer has met the "reasonable number of attempts" requirement arises in two circumstances: if the same defect has been subject to repair "four or more times" but "continues to exist"—commonly termed the "repair presumption" (General Business Law § 198-a [d] [1]); or if the vehicle has been out of service for a total of 30 or more days—referred to as the "days-out-of-service presumption."

General Business Law §198-a (3)(d) defines "a reasonable number of attempts as stated:

It shall be presumed that a reasonable number of attempts have been undertaken to conform a motor vehicle to the applicable express warranties, if:

(1) the same nonconformity, defect or condition has been subject to repair four or more times by the manufacturer or its agents or authorized dealers within the first eighteen thousand miles of operation or during the period of two years following the date of original delivery of the motor vehicle to a consumer, whichever is the earlier date, but such nonconformity, defect or condition continues to exist; or

(2) the vehicle is out of service by reason of repair of one or more nonconformities, defects or conditions for a cumulative total of thirty or more calendar days during either period, whichever is the earlier date (emphasis added).

Petitioner's further argument that the form does not account rebuttal proof is also not consistent with a reading of the form itself. One of the checked boxes on the Arbitrator's Decision Form under the title Summary of Issues in Dispute is paragraph No.7. "Whether the problem is a result of the consumer's abuse, neglect or unauthorized modification or alteration of the vehicle." (Petitioner maintained that the leaks of the windshield were because Respondent had not properly maintained the vehicle by sealing).

Because a Lemon Law arbitration is compulsory, "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 ... The award must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78" . General Motors Corp. v. Seung-Lae Lee, 193 AD2d 741 (2nd Dept. 1993). The Court finds that the decision of the arbitrator was made in accordance with due process, was supported by adequate evidence, and was not arbitrary and capricious.

Petitioner's request to vacate the award is denied and Respondent's Cross-Petition to confirm the award is granted.