In this CPLR Article 78 action, it was undisputed that the hearing before a Department of Motor Vehicles [DMV] Administrative Law Judge was recorded by an electronic recording system. The recording was sent to a transcription service but the transcription service only provided one audio recording transcript. As DMV was reviewing the record for this proceeding, DMV's counsel discovered that the Appeal Board [Board] had only received the first audio recording, which consisted of the automotive facilities inspector's testimony.
The Board credited the inspector's testimony but the Appellate Division said the Board "obviously ... did not consider the cross-examination of the inspector nor Petitioner's own testimony as to the process undertaken in diagnosing the vehicle's problem and the repairs provided based on the diagnosis of the problem. In the words of the Appellate Division, "the Board could not properly assess that argument without the testimony of all witnesses" and it is imperative that an appeal board's obligatory review, as well as this Court's substantial evidence review, be based "on the entire record".
As the transcripts had been provided to the Appellate Division, Petitioners argued that the requisite factual findings may be discerned by the court's review of the entire record. The Appellate Division opined that "the [Board} is the administrative agency responsible for making the final determination" and the court's role "is to examine whether the [Board's] determination was supported by substantial evidence".
Citing Matter of Morgan v Warren County, 191 AD3d 1129, the Appellate Division explained that there must be sufficient findings of facts in the first instance and the Appellate Division could not supply the necessary factual findings upon a review of the hearing evidence given that the Appellate Division's review "is limited to a consideration of the statement of the factual basis for the determination".
Accordingly, the Appellate Division ruled that the Board's determination must be annulled and remitted the matter "to the Repair Shop Review Board for its de novo determination on the entire record."
Click HERE to access the Appellate Division's decision posted on the Internet.