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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

April 22, 2011

Guidelines followed in determining if an individual was provided administrative due process in a quasi-judicial hearing

Guidelines followed in determining if an individual was provided administrative due process in a quasi-judicial hearing
Matter of Hildreth v New York State Dept. of Motor Vehicles Appeals Bd., 2011 NY Slip Op 03066, Appellate Division, Second Department

In considering this appeal from an adverse administrative decision that resulted in the  revocation of Wilbur Hildreth’s driver's license pursuant to Vehicle and Traffic Law §1194 for one year as the result of his refusal to submit to a chemical blood-alcohol test, the Appellate Division addressed a number of issues concerning administrative adjudication procedures.

The court said that:

1. In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination;

2. Substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;

3. The courts may not weigh the evidence or reject the choice made by an administrative agency where the evidence is conflicting and room for choice exists; and

4. Unlike the constitutional right to confrontation in criminal matters, parties in administrative proceedings have only a limited right to cross-examine adverse witnesses as a matter of due process.

In response to Hildreth’s argument that the administrative proceeding should have been dismissed” for failure to hold a hearing within a reasonable time as required under the State Administrative Procedure Act §301 or within six months from the date the DMV received notice of his chemical test refusal as required under 15 NYCRR 127.2(b)(2),” the Appellate Division said that the time limitations imposed on administrative agencies by their own regulations are not mandatory.

Unless the individual can show the delay caused “substantial prejudice,” he or she is not  entitled to relief for an agency's noncompliance with its own “time limits” controlling the proceeding.

The decision is posted on the Internet at:


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