2006 New York Code - 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.