NY Veh & Traf L § 398-F (2021)
2021 New York Laws VAT - Vehicle and Traffic Title 3 - Safety Responsibility; Financial Security; Equipment; Inspection; Size and Weight; and Other Provisions Article 12-A - Motor Vehicle Repair Shop Registration Act 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.