Subchapter D: Appeal Procedures

§3-71: Exceptions to Recommended Decision and Order
§3-72: Timeliness and Extensions of Time
§3-73: Payment of Penalty
§3-74: Board Review
§3-75: Amendments to Board Appeal Decision and Order
§3-76: Judicial Review of Board Decisions





§3-71: Exceptions to Recommended Decision and Order


(a) Filing. Any party aggrieved by the hearing officer's recommended decision and order may, within 30 days of service of the same on that party, file written exceptions with the tribunal. A copy of the exceptions shall be served upon all parties, and proof of such service filed with the tribunal within 30 days of the service of said decision and order on the party filing exceptions. Written exceptions must contain a concise statement of the issues presented, specific objections to the findings of fact and conclusions of law set forth in the hearing officer's recommended decision and order, and arguments presenting clearly the points of law and fact relied on in support of the position taken on each issue.

(b) Answer. Within 20 days after the service on a party of exceptions to the hearing officer's recommended decision and order, any party supporting the hearing officer's recommended decision and order or opposing the matters raised in the exceptions may file an answering brief. An answering brief shall follow the format and be served as required of exceptions by subparagraph (a).

(c) Replies. Further briefing shall not be permitted unless required by the board.

§3-72: Timeliness and Extensions of Time


(a) Any application for a written copy of the transcript of the hearing or a copy of the audio tape shall be made within the time allotted for the filing of exceptions. A copy of such application shall be served upon all parties, and proof of such service filed with the tribunal within the time allotted for filing exceptions. In that event, the time within which exceptions to the hearing officer's recommended decision and order must be filed with the tribunal shall be extended by 20 days from the date when such transcription or audio tape is delivered or mailed to the party requesting same.

(b) Any application to extend time to file for any other reason shall be made to the executive director and supported by evidence of impossibility or other explanation of inability to file timely. A copy of such application shall be served upon all parties, and proof of such service filed with the tribunal.


§3-73: Payment of Penalty


(a) No appeal by a respondent shall be permitted unless, within 20 days of the service of the hearing officer's recommended decision and order on the respondent or the respondent’s authorized representative, the civil penalty imposed by said order is paid or the respondent shall have posted a cash or recognized surety company bond in the full amount imposed by the decision and order appealed from.

(b) Any application for a waiver of such prior payment of the civil penalty must be made within 20 days of the service of the hearing officer's recommended decision and order on the respondent or the respondent’s authorized representative and must be supported by evidence of financial hardship. Waivers of such prepayment may be granted in the discretion of the executive director.


§3-74: Board Review


(a) When exceptions have been filed with the tribunal, the board shall consider the entire matter on the basis of the record before it. The notice of violation, the transcript of the hearing and all briefs filed and exhibits received in evidence, together with the hearing officer's recommended decision and order, shall constitute the hearing record. If, on appeal, a party raises the claim that the notice of violation should not have been adjudicated in a second hearing because it had been previously adjudicated, and if the claim was properly raised and preserved pursuant to section 3-52 of these rules, the Board will review the records of both hearings in order to determine the claim of prior adjudication, taking into account the interests of justice and public safety. Decisions regarding the effect of a prior adjudication apply solely to proceedings before the Board.

(b) The board may from time to time establish panels from among its members who shall conduct the review. If an appeal panel deems it necessary, it shall order further testimony or evidence be taken or submitted, or it may order oral argument on any or all of the questions raised on appeal. The appeal panel shall report its findings to the full board for final resolution.

(c) After such review, the board shall issue its decision. Such decision shall contain findings of fact and conclusions of law. An order consistent with such decision shall be made, exercising such of the board's powers as are deemed appropriate.

§3-75: Amendments to Board Appeal Decision and Order


An application to the board by any party for a superseding appeal decision and order may be made within 10 days of mailing of the board's final decision and order, to correct ministerial errors or errors due to mistake of fact or law.

§3-76: Judicial Review of Board Decisions


(a) After exhaustion of the procedures set forth above, judicial review of the final decision and order of the board may be sought pursuant to Article 78 of the New York Civil Practice Law and Rules.

(b) If a respondent appeals and the board does not issue a final decision and order after 180 days from the filing of exceptions, the respondent may at any time seek judicial review of the hearing officer's recommended decision and order pursuant to Article 78 of the New York Civil Practice Law and Rules and rely on the hearing officer's recommended decision and order as the final decision and order of the board, provided that three specific conditions are met:

(i) at least 45 days before the filing of a petition pursuant to Article 78 of the New York Civil Practice Law and Rules, the respondent files with the board written notice of the respondent's intention to file the petition;

(ii) the board has still not issued a final decision and order when the respondent files the petition; and

(iii) the respondent serves the petition on the board pursuant to the New York Civil Practice Law and Rules.

(c) After a respondent files with the board notice of intention to file a petition for judicial review under the preceding subsection (b), the board may still issue a final decision and order unless the respondent has already filed the petition.