Appellate Division Overrules Board’s 8-Page Limit on Appeals
On 12/12/19, the Appellate Division, Third Department, decided Daniels v. City of Rochester and Casamento v. Rochester Genesee Regional Transit Authority. These two significant decisions strike down the portion of the Board’s regulation requiring submission of an explanation for administrative appeal and rebuttal briefs exceeding 8 pages. These decisions are a breath of fresh air to both claimant and defense attorneys, who have long been vexed by the Board’s random application of this rule to dismiss administrative appeals and rebuttals. The 15 page outer limit to administrative appeal briefs and rebuttals remains in effect.
The relevant portion of Rule 300.13(b)(1)(i), states: “unless otherwise specified by the chair, the appellant may attach a legal brief of up to 8 pages in length, …. A brief longer than 8 pages will not be considered, unless the appellant specifies, in writing, why the legal argument could not have been made within 8 pages. In no event shall a brief longer than 15 pages be considered.”
The court’s decisions in Daniels and Casamento hold that the Board failed to define a standard for how it would apply the page limit requirement, and that the initial limitation of briefs to 8 pages is unreasonable, arbitrary, and capricious, because there is no procedure for getting pre-authorization to file a brief exceeding 8 pages before the brief is actually filed with the Board. As such, it is impossible for counsel to know if their explanation will be accepted by the Board until it is too late. The court also held that the plain language of the regulation does not permit the Board to dismiss an appeal merely because the brief exceeds the page limits in the regulation.
It remains to be seen whether the Board will seek leave to appeal to the Court of Appeals.
Congratulations to our partner, Steve Wyder, who prepared the successful appeals to the Appellate Division.