2023 New York Laws › VAT - Vehicle and Traffic › Title 2 - Department of Motor Vehicles; Commissioner › Article 2-A - Adjudication of Traffic Infractions › 228 - Administrative Review.

§ 228. Administrative review. 1. Appeals board. The commissioner shall
appoint  three  or  more appeals officers, to serve at his pleasure, and
shall select a chairman for each  appeals  board  from  the  members  so
appointed.    Appeals  officers  who  are not full time employees of the
department shall be attorneys admitted to practice in  New  York  state.
The  commissioner  shall assign at least three appeals officers to serve
on each appeals board established  to  hear  appeals  pursuant  to  this
section.  Any  appeals  officer  who  is not a full time employee of the
department shall receive a per diem  at  a  rate  to  be  fixed  by  the
commissioner,  with the approval of the director of the budget, for each
day he serves  on  an  appeals  board,  in  addition  to  all  necessary
expenses.  The  commissioner  shall also designate such other members of
the department as may  be  necessary  to  assist  an  appeals  board  in
carrying out its assigned functions.
2. Right of appeal. (a) Any person who is aggrieved by a determination
of  a  hearing  officer  may  appeal  such determination pursuant to the
provisions of this article.
(b) Except as otherwise provided in this subdivision, a transcript  of
the  hearing  resulting  in  the  determination  appealed  from  must be
submitted on any such appeal.
(c) If the only issue raised on appeal is the appropriateness  of  the
penalty  imposed,  the  appellant,  in  his  discretion, may submit such
appeal without a transcript of the hearing. In such event, the  decision
of  the  appeals  board may be based solely on the appeal papers and the
records of the department, and such decision shall  not  be  subject  to
judicial review.
(d)  Where  a  transcript  of  the hearing is submitted at the time an
appeal is filed, the determination of the appeals board will be  subject
to judicial review as prescribed in subdivision nine of this section.
3. Appeals boards. Each appeal filed pursuant to this section shall be
reviewed  by  an appeals board, which shall make a determination of such
appeal, and shall cause an  appropriate  order  to  be  entered  in  the
records of the department.
4.  Time  limitations. No appeal shall be reviewed if it is filed more
than thirty days after notice was given of  the  determination  appealed
from.
5.  Appeal  procedures.  Any person desiring to file an appeal from an
adverse determination pursuant to this section, shall do so  in  a  form
and  manner  provided by the commissioner. The transcript of any hearing
which formed the basis for such determination will be reviewed  only  if
it  is  submitted  by the appellant. An appeal shall not be deemed to be
finally submitted  until  the  appellant  has  submitted  all  forms  or
documents required to be submitted by the commissioner or this section.
6.  Transcript  of  hearings. Transcripts of the record of any hearing
may be obtained at the cost  to  the  department,  if  prepared  by  the
department,  or  at  the  rate  specified  in  the  contract between the
department and the contractor, if prepared by a private contractor.  The
amount paid at such cost or rate by a person convicted who submits, upon
an  appeal from the determination of guilt, or upon such appeal and upon
a review pursuant to the provisions  of  article  seventy-eight  of  the
civil  practice  law  and rules, a transcript of the hearing or hearings
which  resulted  in  such  determination,  shall  be  refunded  by   the
department  upon  a final determination by the appeals board, dismissing
the charges, or if the charges were sustained by the appeals board, upon
a final determination by the court, dismissing the charges.
7. Fees. The fee for filing an appeal shall be ten dollars. No  appeal
shall be accepted unless the required fee has been paid. Such fees shall
be  paid  by the appeals board to the department of audit and control to

the credit of the justice court fund.  After  such  audit  as  shall  be
required  by the comptroller, such fees shall be credited to the general
fund of the state.
8.  Stays  pending  appeal. Whenever a determination has not been made
within thirty days after an appeal has been finally submitted, a stay of
execution will be deemed granted by operation of law, and  the  license,
certificate, permit or privilege affected will be automatically restored
pending final determination.
9. Judicial review. (a) No determination of a hearing officer which is
appealable under the provisions of this section shall be reviewed in any
court  unless an appeal has been filed and determined in accordance with
this section.
(b) A  determination  of  the  appeals  board  in  any  case  where  a
transcript  of the hearing has been submitted shall be subject to review
pursuant to  the  provisions  of  article  seventy-eight  of  the  civil
practice  law  and  rules. Provided, however, a statement by the hearing
officer at the conclusion of the hearing  indicating  that  the  charges
have  been sustained and announcing the penalty imposed, together with a
summary of the reasons the appeal was denied by the appeals board, shall
constitute sufficient findings for the purpose of such review.