§ 238 — Notice of violation

New York § 238

• Jurisdiction: New York
• Law VAT: Vehicle & Traffic
• Title 2: Department of Motor Vehicles; Commissioner
• Art. 2-B: Adjudication of Parking Infractions

Text

§ 238. Notice of violation. 1. The notice of violation shall contain\ninformation advising the person charged of the manner and the time in\nwhich he may plead either guilty or not guilty to the violation alleged\nin the notice. Such notice of violation shall also contain a warning to\nadvise the person charged that failure to plead in the manner and time\nprovided shall be deemed an admission of liability and that a default\njudgment may be entered thereon. The form and wording of the notice of\nviolation shall be prescribed by the director. A duplicate of each\nnotice of violation shall be served on the person charged in the manner\nhereinafter provided. The original or a facsimile thereof shall be filed\nand retained by the bureau, and shall be deemed a record kept in the\nordinary course of business, and shall be prima facie evidence of the\nfacts contained therein.\n 2. A notice of violation shall be served personally upon the operator\nof a motor vehicle who is present at the time of service, and his name,\ntogether with the plate designation and the plate type as shown by the\nregistration plates of said vehicle and the expiration date; the make or\nmodel, and body type of said vehicle; a description of the charged\nviolation, including but not limited to a reference to the applicable\ntraffic rule or provision of this chapter; information as to the days\nand hours the applicable rule or provision of this chapter is in effect,\nunless always in effect pursuant to rule or this chapter and where\nappropriate the word ALL when the days and/or hours in effect are\neveryday and/or twenty-four hours a day; the meter number for a meter\nviolation, where appropriate; and the date, time and particular place of\noccurrence of the charged violation, shall be inserted therein. A mere\nlisting of a meter number in cases of charged meter violations shall not\nbe deemed to constitute a sufficient description of a particular place\nof occurrence for purposes of this subdivision. The notice of violation\nshall be served upon the owner of the motor vehicle if the operator is\nnot present, by affixing such notice to said vehicle in a conspicuous\nplace. Whenever such notice is so affixed, in lieu of inserting the name\nof the person charged with the violation in the space provided for the\nidentification of said person, the words "owner of the vehicle bearing\nlicense" may be inserted to be followed by the plate designation and\nplate type as shown by the registration plates of said vehicle together\nwith the expiration date; the make or model, and body type of said\nvehicle; a description of the charged violation, including but not\nlimited to a reference to the applicable traffic rule or provision of\nthis chapter; information as to the days and hours the applicable rule\nor provision of this chapter is in effect unless always in effect\npursuant to rule or this chapter and where appropriate the word ALL when\nthe days and/or hours in effect are every day and/or twenty-four hours a\nday; the meter number for a meter violation where appropriate; and the\ndate, time and particular place of occurrence of the charged violation.\nService of the notice of violation, or a duplicate thereof by affixation\nas herein provided shall have the same force and effect and shall be\nsubject to the same penalties for disregard thereof as though the same\nwas personally served with the name of the person charged with the\nviolation inserted therein.\n 2-a. (a) Notwithstanding any inconsistent provision of subdivision two\nof this section, where the plate type or the expiration date are not\nshown on either the registration plates or sticker of a vehicle or where\nthe registration sticker is covered, faded, defaced or mutilated so that\nit is unreadable, the plate type or the expiration date may be omitted\nfrom the notice of violation; provided, however, such condition must be\nso described and inserted on the notice of violation.\n (b) If any information which is required to be inserted on a notice of\nviolation is omitted from the notice of violation, misdescribed, or\nillegible, the violation shall be dismissed upon application of the\nperson charged with the violation.\n (c) (i) A determination dismissing a charged parking violation that\nhas been procured due to the knowing fraud, false testimony,\nmisrepresentation, or other misconduct, or the knowing alteration of a\nnotice of parking violation, by the person so charged or his or her\nagent, employee, or representative may be set aside by a hearing\nexaminer as hereinafter provided.\n (ii) Notice shall be served on the owner by mail to the last known\nregistered address within two years of the time that the enforcing\nauthority discovers, or could with reasonable diligence have discovered,\nthat the dismissal was procured due to the knowing fraud, false\ntestimony, misrepresentation, or other misconduct, or the knowing\nalteration of a notice of parking violation, by the person so charged or\nhis or her agent, employee, or representative. Such notice shall fix a\ntime when and place where a hearing shall be held before a hearing\nexaminer to determine whether or not dismissal of a charged parking\nviolation shall be set aside. Such notice shall set forth the basis for\nsetting aside the dismissal and advise the owner that failure to appear\nat the date and time indicated in such notice shall be deemed an\nadmission of liability and shall result in the setting aside of the\ndismissal and entry of a determination on the charged parking violation.\nSuch notice shall also contain a warning that civil penalties may be\nimposed for the violation pursuant to this paragraph and that a default\njudgment may be entered thereon.\n (iii) Upon a finding by a hearing examiner that the dismissal of a\ncharged parking violation has been procured due to the knowing fraud,\nfalse testimony, misrepresentation, or other misconduct, or the knowing\nalteration of a notice of parking violation, by the person so charged or\nhis or her agent, employee, or representative, the dismissal shall be\nset aside and a determination may be rendered against the owner on the\ncharged parking violation. The hearing examiner may impose monetary\npenalties for the charged parking violation of up to three times the\nscheduled fine for the violation and three times the additional\npenalties that may be imposed for failure to respond to a notice of\nviolation pursuant to section two hundred thirty-five of this article.\nFor purposes of determining the amount of such additional penalties, the\nhearing examiner shall disregard the plea that procured the dismissal\nthat has been set aside and shall calculate such penalties as if there\nhad been no plea or appearance in the proceeding. In any proceeding\nunder this paragraph to set aside a determination and to impose\npenalties for the violation, it shall not be necessary for the hearing\nexaminer to find that the owner personally committed the unlawful acts\nthat procured the dismissal of the violation.\n (iv) Failure to appear at a hearing in response to a notice issued\npursuant to this paragraph shall be deemed to be an admission of\nliability for the charged parking violation as set forth in the original\nnotice of violation and a default judgment may be entered against the\nowner in the maximum amount set forth in subparagraph (iii) of this\nparagraph.\n (v) Notwithstanding any inconsistent provision of section two hundred\nforty-one of this article, a default judgment may be entered pursuant to\nthis paragraph more than two years after the expiration of the time\nprescribed for entering a plea or contesting an allegation, but no more\nthan two years of the time that the enforcing authority discovers, or\ncould with reasonable diligence have discovered, that the dismissal was\nprocured due to the knowing fraud, false testimony, misrepresentation,\nor other misconduct, or the knowing alteration of a notice of parking\nviolation.\n 3. For purposes of this section, an operator of a vehicle who is not\nthe owner thereof but who uses or operates such vehicle with the\npermission of the owner, express or implied, shall be deemed to be the\nagent of such owner to receive notices of violation, whether personally\nserved on such operator or served by affixation in the manner aforesaid,\nand service made in either manner as herein provided shall also be\ndeemed to be lawful service upon such owner.\n