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.