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REGULATION LIMITING BRIEFS TO EIGHT PAGES IS ARBITRARY AND CAPRICIOUS AND THE LONGER BRIEF WAS NOT AN ADEQUATE GROUND FOR REJECTING THE EMPLOYER’S APPLICATION AND APPEAL (THIRD DEPT). ​

The Third Department determined the regulation limiting the length of briefs to eight pages was arbitrary and capricious. The employer’s application had been rejected solely because the brief was longer than eight pages:

The difficulty here is that there is no defined standard as to what explanation the Board would consider adequate. Worse yet, the regulation, by its express terms, does not authorize the Board to dismiss an application for Board review where a brief longer than eight pages is submitted without an adequate explanation. In such an instance, the regulation simply specifies that the brief “will not be considered” (12 NYCRR 300.13 [b] [1] [i]). Although the regulation also provides that an application may be denied “when the applicant . . . does not comply with prescribed formatting. . . requirements” (12 NYCRR 300.13 [b] [4] [i]), the filing of a brief is discretionary, not mandatory. As such, we find that the Board acted arbitrarily in dismissing the employer’s application for Board review. We further conclude that it would not be reasonable in the first instance for the Board to reject an oversized brief outright for to do so would undermine the role of counsel. We find this aspect of the regulation flawed for there is simply no safety valve that would allow an applicant to seek permission to file a lengthier brief without jeopardizing the ability to submit a legal analysis supportive of the application for Board review … . As such, we find that the regulation is unreasonable with respect to the oversized brief exception and must be rejected as arbitrary and capricious. The matter must be remitted to the Board for further proceedings. Matter of Daniels v City of Rochester, 2019 NY Slip Op 08902, Second Dept 12-12-19

 

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