N.Y. Vehicle & Traffic Law § 398-f: Hearings; review board; appeals; judicial review

§ 398-f. Hearings; review board; appeals; judicial review. 1.

Hearings. (a) Upon the denial of an application for a certificate of

registration, the applicant shall, upon written request made within

thirty days after the applicant is notified of such denial, be entitled

to a hearing before an officer or employee of the department designated

for such purpose by the commissioner.

(b) No certificate of registration shall be suspended or revoked,

penalty imposed or determination of gross negligence or gross

overcharging made as provided for pursuant to paragraph (h) of

subdivision one of section three hundred ninety-eight-e of this article,

until such registrant shall have been given the opportunity to be heard,

upon written notice to the registrant, before an officer or employee of

the department designated for such purpose by the commissioner,

provided, however, that where a notice of hearing is mailed to a

registrant at the address shown in the records of the department and

such registrant fails to attend such hearing, the commissioner may

suspend such registration pending the registrants attendance at such

hearing. Requests for adjournment of such hearings shall be granted in

accordance with regulations promulgated by the commissioner. A

suspension pending attendance at a hearing shall not be appealable.

(c) The commissioner acting by such officer or employee in the

department as he may designate, shall have the power to subpoena and

bring before such officer or employee so designated any person in this

state, or document, record or other relevant evidence, and administer an

oath to and take the testimony of any such person or cause his

deposition to be taken. A subpoena issued pursuant to this action shall

be regulated by the civil practice law and rules.

(d) In the event a certificate of registration is revoked or an

application is denied, no such certificate shall be issued to such

former registrant or applicant for at least six months, nor thereafter,

except in the discretion of the commissioner.

2. Review board. The commissioner shall establish a review board.

Such board shall consist of persons who have been engaged in the

automotive repair shop business for at least five years representing the

automobile repair shop industry, persons who shall be laymen having no

association with the automotive repair shop industry representing

consumers, and persons who are attorneys admitted to practice in this

state and who have no interest in or represent as an attorney an

automotive repair shop. Members of the review board shall be appointed

insofar as is practicable to provide for representation of different

geographic areas of the state, and shall serve in no other capacity in

the department of motor vehicles. The number of persons appointed to

such review board shall be determined by the commissioner and shall be

appointed to serve at his pleasure. Three persons, one of whom shall be

automotive repair shop industry representatives, one of whom shall be

consumer representatives, and one of whom shall be an attorney appointed

pursuant to the provisions of this subdivision, shall as a panel review

each appeal from a determination of the hearing officer. Such attorney

shall serve as the chairman of such panel with respect to any such

review. Members of the review board shall be entitled to their actual

and necessary expenses incurred in the performance of their duties

thereunder, and shall be entitled to a per diem allowance as determined

by the commissioner and approved by the director of the division of the

budget not to exceed one hundred dollars except that those members who

serve as the chairman of a panel at appeal proceedings may be entitled

to a per diem allowance in an amount so determined and approved but not

exceeding one hundred fifty dollars.

3. Appeals. (a) The review board will review and determine all

appeals filed pursuant to this article. Such determination may be to

affirm, reverse or modify the initial determination of the hearing

officer, or to remand the case for a further hearing to determine

additional facts. Any review by such board shall be based solely on the

record upon which the initial determination is made and upon any written

brief which may be submitted by or on behalf of the applicant or

registrant.

(b) (1) Whenever a certificate of registration is suspended or

revoked, an application for such registration denied, determination of

gross negligence or gross overcharging made, the sealing of a premises

ordered or penalty imposed by the commissioner pursuant to this article,

except where such action is required by statute based upon a conviction,

the registrant, applicant, or owner of the premises as such term is

defined in paragraph (a) of subdivision five-a of section three hundred

ninety-eight-i of this article may appeal such determination pursuant to

the provisions of this article and such regulations as may be

promulgated by the commissioner.

(2) No appeal shall be reviewed unless it is submitted within sixty

days after written notice of the determination appealed from is mailed

to the registrant or applicant.

(3) Any person desiring to appeal pursuant to this article shall do

so in a form and manner as provided by regulations promulgated by the

commissioner. The transcript of any hearing will only be reviewed if it

is submitted by the appellant who shall bear the expense of furnishing

such transcript.

(4) The fee for filing an appeal shall be ten dollars. No appeal

shall be deemed filed or submitted unless any required fee has been

paid.

(5) The submission of a written request to file such an appeal shall

stay the operation of the initial determination until after a review is

had and a determination has been made; provided, however, that failure

to timely submit such appeal and comply with the provisions of this

subdivision shall remove the stay imposed by this paragraph. Such

review shall be made and decided as expeditiously as possible; provided

that an appeal of an order directing the sealing of the premises

pursuant to subdivision five-a of section three hundred ninety-eight-i

of this article shall, to the extent possible, be given priority over

all other appeals filed pursuant to this article.

(c) Whenever the same facts give rise to a hearing involving any

other license or registration issued by the commissioner, a combined

hearing may be held. If the registrant appeals only from a

determination made with respect to his repair shop registration, he

shall be entitled to a review as provided in subdivision one of this

section; however, if he appeals from any determination or determinations

made with respect to any other license or registration, as well as a

determination with respect to his repair shop registration, the appeals

procedure established in article three-A of this chapter shall be

followed in lieu of the procedure established in subdivision three of

this section.

4. Judicial review. The determination of the review board shall be

subject to review by the supreme court in the manner provided in article

seventy-eight of the civil practice law and rules.