S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7438

                            I N  S E N A T E

                              April 9, 2010
                               ___________

Introduced by Sen. DILAN -- (at request of the Department of Motor Vehi-
  cles)  --  read  twice  and  ordered  printed,  and when printed to be
  committed to the Committee on Transportation

AN ACT to amend the vehicle and traffic law, in relation to  the  tempo-
  rary suspension of a repair shop registration or license, jurisdiction
  of  repair shop appeals, and to repeal subdivisions 2 and 4 of section
  398-f of such law relating thereto

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Subdivision  1  of section 261 of the vehicle and traffic
law, as amended by chapter 517 of the laws of 2007, is amended  to  read
as follows:
  1.  Right  of  appeal.  Whenever a license, certificate, permit or any
privilege is denied, suspended or revoked by the  commissioner  pursuant
to  this chapter, except where such action is based upon a conviction as
a result of which such action is required by statute or is based upon  a
determination  rendered  under  the  provisions of article two-A of [the
vehicle and traffic law] THIS CHAPTER, the  holder  thereof  may  appeal
such  determination  pursuant to the provisions of this article and such
regulations as may be promulgated  by  the  commissioner.  In  addition,
following  an adjudicatory proceeding conducted pursuant to section four
hundred seventy-one-a of this chapter, an aggrieved party may appeal the
commissioner's decision pursuant to the provisions of this  article  and
such  regulations  as may be promulgated by the commissioner.  [Notwith-
standing the provisions of this subdivision, appeals from determinations
made pursuant to article twelve-A of this chapter shall be  governed  in
accordance with the provisions of that article.]
  S  2.  Paragraph  (b) of subdivision 1 of section 398-f of the vehicle
and traffic law, as added by chapter 641 of the laws of 1975, is amended
to read as follows:
  (b)  No certificate of registration shall  be  suspended  or  revoked,
penalty imposed or determination of gross negligence or gross overcharg-
ing made as provided for pursuant to paragraph (h) of subdivision one of
section  three hundred ninety-eight-e of this article, until such regis-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD15768-01-0

S. 7438                             2

trant shall have been given the opportunity to be  heard,  upon  written
notice  to  the registrant, before an officer or employee of the depart-
ment 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]  REGISTRANT'S  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.    PROVIDED,  HOWEVER,
THAT  A  CERTIFICATE  OF  REGISTRATION MAY BE TEMPORARILY SUSPENDED UPON
WRITTEN NOTICE OF TEMPORARY SUSPENSION DELIVERED BY  CERTIFIED  MAIL  TO
THE REGISTRANT PENDING ANY PROSECUTION, INVESTIGATION OR HEARING INVOLV-
ING  AN  ALLEGATION  OF  ANY  CONDUCT  ON  THE PART OF THE REGISTRANT IN
VIOLATION OF THE PROVISIONS OF PARAGRAPH (G), (H), (J), OR (K) OF SUBDI-
VISION ONE OF SECTION THREE HUNDRED NINETY-EIGHT-E OF THIS ARTICLE.  THE
WRITTEN  NOTICE OF TEMPORARY SUSPENSION SHALL PROVIDE THAT THE TEMPORARY
SUSPENSION IS EFFECTIVE SEVENTY-TWO HOURS AFTER MAILING OF  SUCH  NOTICE
AND THAT A HEARING BE SCHEDULED WITHIN TEN DAYS AFTER THE EFFECTIVE DATE
OF THE TEMPORARY SUSPENSION.
  S  3. Subdivision 2 of section 398-f of the vehicle and traffic law is
REPEALED.
  S 4. Subdivision 3 of section 398-f of the vehicle and traffic law, as
added by chapter 641 of the laws of 1975, paragraph (a) and subparagraph
2 of paragraph (b) as amended by chapter 448 of the laws  of  1995,  and
subparagraphs  1 and 5 of paragraph (b) as amended by chapter 450 of the
laws of 1996, is amended to read as follows:
  3.  Appeals. (a) The [review] APPEALS board  ESTABLISHED  PURSUANT  TO
ARTICLE  THREE-A  OF  THIS CHAPTER 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 THREE-A OF THIS CHAPTER and such  regu-
lations 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.

S. 7438                             3

  (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 pursu-
ant 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  determi-
nation  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 determi-
nation with respect to his repair shop registration, the appeals  proce-
dure established in article three-A of this chapter shall be followed in
lieu of the procedure established in subdivision three of this section.]
  S  5. Subdivision 4 of section 398-f of the vehicle and traffic law is
REPEALED.
  S 6. Paragraph (a) of subdivision 4 of section 398-i  of  the  vehicle
and traffic law, as added by chapter 891 of the laws of 1977, is amended
to read as follows:
  (a) If it is determined that a person has operated a repair shop with-
out being registered as required by this article, such determination may
be  appealed  to  the  [review]  APPEALS  board  established pursuant to
[section three hundred ninety-eight-f of  this  chapter.  The  procedure
established in such section shall apply to such appeals] ARTICLE THREE-A
OF  THIS CHAPTER provided that no appeal shall be accepted or determined
by the [review] APPEALS board unless the civil penalty assessed  against
such  person  has  been  paid  as  prescribed in subdivision two of this
section.
  S 7. This act shall take effect immediately, except that sections one,
three, four, five, and six shall take effect on the thirtieth day  after
it shall have become a law and shall apply to appeals pending before the
repair shop review board.