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This entry was published on 2014-09-22
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Administrative review
Vehicle & Traffic (VAT) CHAPTER 71, TITLE 2, ARTICLE 2-A
§ 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

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.