N.Y. Comp. Codes R. & Regs. tit. 15 § 126.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 126.2 - Fees, transcripts, procedures

(a) Appeals fee. A fee of $10, which shall not be refundable, must be paid at the time an appeal is filed.

(b) Dismissal of appeal. Upon the failure to pay the $10 appeal fee or dishonor of any instrument offered to make such payment, the appeal shall be dismissed.

(c) Filing of transcript. A transcript will be considered to have been filed in a timely fashion if proof is submitted that the transcript has been ordered by the appellant and that the payment for same has been made by the appellant to the firm which transcribes such hearing pursuant to contract between it and the Department of Motor Vehicles. Proof that the transcript has been ordered shall consist of a receipt or acknowledgment of the placement of the order by the contractor. Upon receipt of the order, the contractor shall advise the appellant of the required deposit or the cost of obtaining the transcript. Payment for the completed transcript shall be made by the appellant within 15 days after receipt of the billing. In the event the transcript is not fully paid for within the 15-day period, the transcript will be deemed not filed in a timely fashion, the review of the determination requested will be denied and appellant will be deemed to be appealing the penalty only. However, where an appeal is initially taken of penalty only, the appellant thereafter and not later than 45 days after the date of determination may elect to request a full review of the determination and order a transcript of the hearing.

(d) Transcript cost. The cost of such transcript which is payable by the appellant to the contractor shall be the amount as contained in the contract between the department and the independent contractor.

(e) Submission of appeals. An appeal must be filed, on the form prescribed for such purposes, not later than 30 days following the date of the determination, or of the acceptance of a plea of guilty, as the case may be, excluding the date of such action. An appeal shall be considered fully filed and submitted for consideration by the board upon the conclusion of the following: the filing of the notice of appeal, the filing of a completed transcript and the filing of any further arguments by the appellant in support of his appeal.

(f) Presumption of mailing and delivery. All necessary notices may be mailed from the Appeals Board via first class mail to appellant's address as shown on his appeals form, or--if notice of change of address be delivered via certified mail to the Appeals Board, at the address given in section 126.1 of this Part-- to the address specified in such notice. Mailing via first class mail in the regular course of business shall be presumed to have occurred on the date shown in the records of the Appeals Board as the date of any notice, bill or other correspondence addressed to appellant or his representative. All such mail and all notices contained therein shall be deemed delivered on the fourth day following the date of such notice, bill or other correspondence.

(g) Arguments and materials. Oral argument of the appeal is not permitted. Evidence, exhibits or documents not submitted to and considered by the hearing officer may not be filed with the appeal and will not be reviewed by the Appeals Board. A brief or written argument in support of the appeal may be submitted and must be filed with the Appeals Board within 15 days after the filing of the transcript. At such time, the appeal will be considered fully submitted and ready for consideration by the Appeals Board (sections 126.2[e] and 126.4 of this Part). Upon written request and for good cause shown, the chairman or the vice-chairman of the Appeals Board may grant an extension of time in writing to the appellant for submission of additional arguments in support of the appeal. In the event that an extension is granted to submit such argument, the time for determination of the appeal shall automatically be extended (section 126.4) by a like period.

(h) Proof of mailing and payment. All papers submitted by properly addressed mail and actually received at the office of the board will be treated as timely if the wrapper bears a legible postmark evidencing receipt by the post office within the time limited. All mail received by the board will be datestamped and, in the absence of legible postmark or other U.S. postal record, will be treated according to the actual date of receipt demonstrated by the records of the board. Proof of payment of required fees and costs may be made only by actual receipts issued by the board or by production of negotiable instruments actually presented and collected by the board.

N.Y. Comp. Codes R. & Regs. Tit. 15 § 126.2