ANTHONY T. BRUNO, ALJ:

keywords Nissan Infiniti  problem, New York lemon law, defect, problem, Nissan Infiniti stalling condition defect, lemon, 2004 Nissan Infiniti G35 class action,  defect, Nissan Infiniti G35 brake class action,  product liability, automobile,

STATEMENT OF THE CASE AND PROCEDURAL HISTORY

This matter arises pursuant to N.J.S.A. 56:12-29 to -49 ("Lemon Law") and involves petitioner's allegations that the 2003 Infiniti G35 (VIN: JNKCV51E83M302668) she leased suffered "nonconformities," specifically, "the vehicle stalls at highway speeds and the lights cut out." Petitioner further alleges that the "nonconformities" substantially impair the use, value and safety of the vehicle.

On June 20, 2003, the Lemon Law Unit of the Office of Consumer Protection, Division of Consumer Affairs, transmitted this matter to the Office of Administrative Law pursuant to N.J.S.A. 56:12-27b. The hearing was conducted on that date at Mercerville, New Jersey. Witnesses who testified and exhibits entered into the record are listed in he attached appendix.

The hearing record closed June 19, 2003.

FACTUAL CONSIDERATIONS

The undisputed testimony of the petitioner and her husband, G. Donald Johnson, as corroborated by the exhibits attached to the transmittal and entered into the hearing record establish the following facts:

On December 2, 2002 petitioner leased a 2003 Infinite G35, four-door sedan, VIN:JNKCV51E83M302668, from Circle Infiniti, Inc., West Long Branch, New Jersey (Exhibit P-1). Upon delivery of the vehicle petitioner paid $4397.66, which sum included capitalized cost reduction ($3467.60), first monthly payment ($471.00), initial registration fees ($72.00) and documentary and miscellaneous fees ($387.06). Petitioner also signed a lease of the vehicle promising to pay the lessee $471 on the second day of each month thereafter for a total of 39 months. Through the date of the hearing, June 19, 2003, petitioner paid 6 months on the lease for $2826 and an overall total of $7223.66.

At the time of delivery the vehicle's odometer was at 5 miles.

G. Donald Johnson returned the vehicle in Circle Infiniti on December 16, 2002 (mileage 586) advising that the vehicle stalled twice and the lights flickered once. The dealer's service department could not find a problem after test driving the vehicle and being unable to reproduce the complaint. The vehicle was out of service for 1 day (Exhibit P-2).

On December 26, Johnson again brought the vehicle to Circle Infiniti. His complaints as recorded on the Work Order were: "While driving at night approximately 30 minutes, heard a popping noise from dash. All lights out and then stall." (Exhibit P-3). The service personnel found abnormal battery voltage and replaced the batter in the vehicle. Mileage at this time was 1072. The work was completed and the vehicle returned on January 7, 2003 after it was driven 475 miles.

Johnson was again at Circle Infiniti on January 13 with a complaint, "car cuts out while driving between 63-65 mph; heat was on 73?; radio on; outside temp 29?; lights on; 35 minutes into drive." Mileage at that time was 1621. Johnson also told the Service Consultant that the car kicked back on when Johnson "jiggled" the key. (Exhibit P-5). Circle Infiniti found the wiring "faulty or being not all the way in, caused flex in wiring causing light failure and engine stall." The wiring into the ignition was replaced and the vehicle was returned to Johnson after a 45 minute test drive on January 15.

Counsel for petitioner mailed a "last chance" letter to Infiniti Corporation on March 26, 2003 (Exhibit P-6), alleging "defects and/or conditions that render the unsafe and . . . a lemon." Counsel advised of defects and/or non-conformities with respect to the engine, ignition and electrical system, which resulted in repeated stalling of the vehicle. Infiniti was noticed of its last chance to inspect the vehicle within 10 days.

Johnson drive the vehicle to circle Infiniti on April 11 as requested by Infiniti. The vehicle was driven 25 miles by Circle Infiniti's Service Manager and 100 miles by Infiniti's Representative but they did not duplicate Johnson's complaint (Exhibit P-7). No repair was undertaken by Circle Infiniti.

G. Donald Johnson testified that he first experienced difficulty with the vehicle on December 14, 2002. He and his wife were driving to dinner when the car died. He heard a popping sound, the engine stalled, and the lights, heater and radio went out. He was able to steer the vehicle to the shoulder and restart. The car stalled again within minutes; Johnson pulled onto the shoulder before restarting. Brenda Johnson testified that earlier in the day, while she was driving, the lights flickered off and on; but the engine did not stall.

Eight days after he picked up the vehicle at Circle Infiniti, on December 24, while driving to Colts Neck from Livingston, the car again stalled twice. The first occasion was on the Garden State Parkway approaching the Cheesequake toll area. The engine stalled, the dashboard lights went out and the car slowed. Johnson steered out of heavier traffic and restarted the engine. A few miles later, driving on Highway 34 at 45 mph, Johnson again heard the "pop" and the engine died. As he had done before Johnson played with the ignition key and the engine restarted.

Johnson brought the car to Circle Infiniti on December 26. He was called to return to pick up the vehicle on January 7. He was told the battery was faulty and had been replaced. The vehicle was driven 475 miles by the service people without a problem.

Four days after picking up the car at Circle Infiniti (January 11) while driving on the Garden State Parkway at 65 mph, Johnson again heard "pop," the lights went out and the car stalled. As the vehicle was slowing, Johnson again played with the key and the motor started. Johnson sought out his next-door neighbor to his Bayville summer home to look at this car. The neighbor, Bill Broderick, owns a gas station so he has some familiarity with cars. Broderick wrote a note attesting to his seeing all interior lights in the car not working and the car's security light staying on. (Exhibit P-4).

Johnson returned to Circle Infiniti on January 13. Circle Infiniti found a discrepancy in the ignition system and replaced the ignition system of the vehicle.

On March 16. While returning from Livingston, and again approach a tollbooth on the Garden State Parkway, the vehicle stalled and the lights went out. Johnson restarted the car by playing with the ignition key, and drove home to Colts Neck. Johnson called Circle Infiniti on March 17 but was told an Infiniti representative had to inspect the car. Thereafter Johnson has not driven the vehicle, except to and back from the inspection conducted by Carlos Ferreira, Technical Specialist for Infiniti.

Ferreria is ASE Certified in automotive repair, including electrical systems. He testified as an expert on electrical systems in Nissan manufactured vehicles. Ferreira drove Johnson's vehicle for 100 miles, at various speeds up to 65 mph, primarily on state highways. He could not reproduce the loss of lights or stalling. The diagnostic scan equipment did not indicate any failures. However, Ferreira indicated that a power failure to a computer will not be recorded. Because Ferreira did not find anything wrong with the vehicle no repairs or replacements were made.

Johnson has not driven the vehicle since it was returned to him on April 11.

Brenda Johnson was a passenger in the vehicle on each occasion it stalled. She agreed with her husband's testimony, including the apprehension connected with riding in a car which stalled on highways, parkways and streets.

DISCUSSION AND CONCLUSIONS

N.J.S.A. 56:12-31 obligates manufacturers and dealers to make "within a reasonable time, all repairs necessary to correct" any nonconformity in a motor vehicle occurring during the first 18,000 miles of operation or during the period of two years following the date of original delivery, whichever is earlier. A "nonconformity" is defined at N.J.S.A. 56:12-30 as "a defect or condition which substantially impairs the use, value or safety of a motor vehicle." If the manufacturer or its dealer is unable to repair or correct a nonconformity "within a reasonable time," the customer is entitled to a "full refund of the purchase price of the original motor vehicle, including any stated credit or allowance for the customer's used motor vehicle, the cost of any options or other modifications arranged, installed, or made by the manufacturer or its dealer within 30 days after the date of original delivery, and any other charges or fees including, but not limited to, sales tax, license and registration fees, finance charges, reimbursement for towing and reimbursement for actual expenses incurred by the customer for the rental of a motor vehicle. . . less a reasonable allowance for vehicle use."

The law creates a statutory presumption in the consumer's favor if substantially the same defect continues to exist after three or more unsuccessful repair attempts or the vehicle is out of service for twenty or more calendar days. The presumption applies only if the consumer has served written notice of potential claim under the Lemon Law and allows the manufacturer one last opportunity to repair the defect within ten days.

Notification. . . shall take place any time after the motor vehicle has had substantially the same nonconformity subject to repair two or more times or has been out of service by reason of repair for a cumulative total of 20 or more calendar days. N.J.S.A. 56:12-22(b).

In order to prevail, a petitioner must demonstrate by a preponderance of the credible evidence that the vehicle has a defect that is a nonconformity. A nonconformity is defined as a "defect or condition, which substantially impairs the use, or value or safety of a motor vehicle." N.J.S.A. 56:12-30. In Herbstman v. Eastman Kodak Co., 68 N.J. 1, 9 (1975), the New Jersey Supreme Court held that the determination of whether a "substantial impairment [exists] is based upon an objective factual evaluation rather than upon a subjective test of whether the buyer believed the value was substantially impaired." On intangible factor to be considered is determining whether the nonconformity is such that it "shakes the buyer's confidence" in the goods. G.M.A.C.v. Jankowitz, 216, N.J. Super. (App. Div. 1987) 313, 338. The court in Zabriskie Chevrolet, Inc. v. Smith, 99 N.J. Super. 441, 458 (Law Div. 1968) stated:

For a majority of people, the purchase of anew car is a major investment, rationalized by the peace of mind that flows from its dependability and safety. Once their faith is shaken, the vehicle loses not only its real value in their eyes, but becomes an instrument whose integrity is substantially impaired and whose operation is fraught with apprehension. [Id. at 458].

I Find as a Fact that petitioner's vehicle stalled and lost electrical power while being driven on December 14, December 24, 2002 and January 11, 2003. I Find as a Fact that Circle Infiniti attempted on 3 separate occasions to repair the vehicle so that it would not stall or lose electrical power on the road. I Find as a Fact that after the third attempted repair on January 13, 2003, petitioner's vehicle again stalled and lost electrical power on March 16, 2003. I Find as a Fact that the stalling and loss of electrical power in an automobile while that automobile is being driven on a street or highway impairs the use, value and safety of that vehicle.

I CONCLUDE that petitioner's motor vehicle is a "lemon," a motor vehicle with a nonconformity, which nonconformity the manufacture or its dealer could not repair or correct with the reasonable time provided at N.J.S.A. 56:12-33. Accordingly, I CONCLUDE that respondent is liable to petitioner for a refund as provided at N.J.S.A. 56:12-32b.