Subchapter C - Pre-Trial Matters
§ 1-21 Designation of OATH.
Where necessary under the provision of law governing a particular category of cases, the agency head will designate the chief administrative law judge of OATH, or such
administrative law judges as the chief administrative law judge may assign, to hear such cases.
§ 1-22 The Petition.
The petition must include a short and plain statement of the matters to be adjudicated, and, where appropriate, specifically allege the incident, activity or behavior at issue as well as the date, time, and place of occurrence. The petition must also identify the law, rule, regulation, contract provision, or policy that was allegedly violated and provide a statement of the relief requested. If the petition does not comply with this provision, the administrative law judge may direct, on the motion of a party or sua sponte, that the petitioner re-plead the petition.
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§ 1-23 Service of the Petition.
(a) The petitioner must serve the respondent with the petition. The petition must be accompanied by a notice of the following: the respondent's right to file an answer and the deadline to do so under § 1-24; the respondent's right to representation by an attorney or other representative; and the requirement that a person representing the respondent must file a notice of appearance with OATH. The notice must include the statement that OATH's rules of practice and procedure are published in Title 48 of the Rules of the City of New York, and that copies of OATH's rules are available at OATH's offices or on OATH's website.
(b) Service of the petition must be made pursuant to statute, rule, contract, or other provision of law applicable to the type of proceeding being initiated. Absent any such applicable law, service of the petition must be made in a manner reasonably calculated to achieve actual notice to the respondent. Service by certified mail, return receipt requested, contemporaneously with service by regular first-class mail, will be presumed to be reasonably calculated to achieve actual notice. Appropriate proof of service must be maintained.
(c) A copy of the petition and accompanying notices, with proof of service, must be filed with OATH at or before the commencement of the trial.
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§ 1-24 Answer.
The respondent may serve and file an answer to the petition within eight days of service of the petition if service was personal, or within thirteen days of service of the petition if service was by mail, unless a different time is fixed by the administrative law judge. In the discretion of the administrative law judge, the respondent may be required to serve and file an answer. Failure to file an answer where required, may result in sanctions, including those specified in § 1-33(e).
§ 1-25 Amendment of Pleadings.
Amendments of pleadings must be made as promptly as possible. If a pleading is to be amended less than twenty-five days before the commencement of the trial, amendment may be made only on consent of the parties or by leave of the administrative law judge on motion.
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§ 1-26 Docketing the Case.
(a) A case must be docketed by filing with OATH a completed intake sheet, and either a petition or a written application for relief. Parties are encouraged to docket cases by electronic means. When a case is docketed, OATH will place it on the trial calendar, the conference calendar, or on open status. Absent prejudice, cases involving the same respondent or respondents will be scheduled for joint trials or conferences, as will cases alleging different respondents' involvement in the same incident or incidents.
(b) When a case is docketed, it will be given an index number and assigned to an administrative law judge. Assignments will be made and changed in the discretion of the chief administrative law judge or his or her designee, and motions concerning such assignments will not be entertained except pursuant to § 1-27.
(c) OATH may determine that the case is not ready for trial or conference and may adjourn the trial or conference, or may remove the case from the trial or conference calendar and place it on open status. In addition, OATH may determine that the case should proceed on an expedited basis, and may direct expedited procedures, including expedited pre-trial and post-trial procedures, shortened notice periods, and/or expedited calendaring.
(d) The party docketing a case may do so ex parte. If the case is placed on the conference calendar or the trial calendar rather than on open status, the party may at the time of docketing also select a trial date and/or conference date ex parte. However, OATH encourages selection of trial and conference dates by all parties jointly. In the event that a party selects a trial date or a conference date ex parte, that party must serve the notice of conference or trial required by § 1-28, within one business day of selecting that date. Whenever practicable, such notice must be served by personal delivery or electronic means.
(e) Cases docketed with the Trials Division are subject to review by the Chief Administrative Law Judge who shall determine whether the case should proceed at the Trials Division or removed to the Hearings Division.
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§ 1-27 Disqualification of Administrative Law Judges.
(a) A motion for disqualification of an administrative law judge must be addressed to that administrative law judge, accompanied by a statement of the reasons for such application, and made as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist.
(b) The administrative law judge will be disqualified for bias, prejudice, interest, or any other cause for which a judge may be disqualified in accordance with § 14 of the Judiciary Law. In addition, an administrative law judge may, sua sponte or on motion of any party, withdraw from any case, where in the administrative law judge's discretion, his/her ability to provide a fair and impartial adjudication might reasonably be questioned.
(c) If the administrative law judge determines that his or her disqualification or withdrawal is warranted on grounds that apply to all of the existing administrative law judges, the administrative law judge must state that determination, and the reasons for that determination, in writing or orally on the record, and may recommend to the chief administrative law judge that the case be assigned to a special administrative law judge to be appointed temporarily by the chief administrative law judge. The chief administrative law judge will either accept that recommendation, or, upon a determination and reasons stated in writing or orally on the record, reject that recommendation. A special administrative law judge will have all of the authority granted to administrative law judges under this title.
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§ 1-28 Notice of Conference or Trial.
(a) When a case is placed on either the trial calendar or the conference calendar, and within the time provided in § 1-26(d), if applicable, the party that placed the case on the calendar must serve each other party with notice of the following: the date, time and place of the trial or conference; each party’s right to representation by an attorney or other representative at the trial or conference; the requirement that a person representing a party at the trial or conference must file a notice of appearance with OATH prior to the trial or conference; and, in a notice of a trial served by the petitioner, the fact that failure of the respondent or an authorized representative of the respondent to appear at the hearing may result in a declaration of default, and a waiver of the right to a trial or other disposition against the respondent. The notice may be served personally or by mail, and appropriate proof of service must be maintained. A copy of the notice of conference, with proof of service, must be filed with OATH at or before the commencement of the conference. A copy of the notice of trial, with proof of service, must be filed with OATH at or before the commencement of the trial.
(b) When multiple petitions against a single respondent, or petitions against multiple respondents, are placed on the calendar or calendar conference for joint trial or conference pursuant to § 1-26(a), notice of trial or notice of conference pursuant to this section must include notice of such joinder.
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§ 1-29 Scheduling Other Conferences.
In the discretion of the administrative law judge, and whether or not a case has been on the conference calendar, conferences may be scheduled on application of either party or sua sponte.
§ 1-30 Conduct of Conferences.
(a) All parties are required to attend conferences as scheduled unless timely application is made to the administrative law judge. Participants must be prompt and prepared to begin on time. No particular format for conducting the conference is required. The structure of the conference may be tailored to the circumstances of the particular case. The administrative law judge may propose mediation and, where the parties consent, may refer the parties to the Center for Mediation Services or other qualified mediators. In the discretion of the administrative law judge, conferences may be conducted by telephone.
(b) At the conference, all parties must be fully prepared to discuss all aspects of the case, including the formulation and simplification of issues, the possibility of obtaining admissions or stipulations of fact and of admissibility or authenticity of documents, the order of proof and of witnesses, discovery issues, legal issues, pre-hearing applications, scheduling, and settlement of the case.
(c) In the event that the case is not settled at the conference, outstanding pre-trial matters, including discovery issues, must be raised during the conference. In the event that the case is not settled at the conference, a trial date may be set, if such a date has not already been set. The parties must be expected to know their availability and the availability of their witnesses for trial.
§ 1-31 Settlement Conferences and Agreements.
(a) Prior to a conference at which settlement is to be discussed, the administrative law judge assigned to the conference may require each party to provide a pre-conference letter. The pre-conference letter must be sent solely to the administrative law judge by fax or e-mail and marked prominently “CONFIDENTIAL MATERIAL FOR USE AT SETTLEMENT CONFERENCE.” The pre-conference letter must state succinctly:
(1) the history of settlement negotiations, if any;
(2) the party’s settlement offer and the rationale for it; and
(3) any other facts that would be helpful to the administrative law judge in preparation for the conference.
(b) If settlement is to be discussed at the conference, each party must have an individual possessing authority to settle the matter either present at the conference or readily accessible. A settlement conference will be conducted by an administrative law judge or other individual designated by the chief administrative law judge, other than the administrative law judge assigned to hear the case. During settlement discussions, upon notice to the parties, the administrative law judge or other person conducting the conference may confer with each party and/or representative separately.
(c) All settlement offers, whether or not made at a conference, will be confidential and will be inadmissible at trial of any case. Administrative law judges must not be called to testify in any proceeding concerning statements made at a settlement conference.
(d) A settlement must be reduced to writing, or, in the discretion of the administrative law judge, placed on the record. In the event that a settlement is reached other than at a conference, OATH must be notified immediately pursuant to § 1-32(f). Copies of all written settlement agreements must be sent promptly to OATH.
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§ 1-32 Adjournments.
(a) Applications for adjournments of conferences or trials will be governed by this section and by § 1-34 or § 1-50. Conversion of a trial date to a conference date, or from conference to trial, will be deemed to be an adjournment.
(b) Applications to adjourn conferences or trials must be made to the assigned administrative law judge as soon as the need for the adjournment becomes apparent. Applications for adjournments are addressed at the discretion of the administrative law judge, and will be granted only for good cause. Although consent of all parties to a request for an adjournment will be a factor in favor of granting the request, such consent will not by itself constitute good cause for an adjournment. Delay in seeking an adjournment will militate against grant of the request.
(c) If a party selects a trial or conference date without consulting with or obtaining the consent of another party pursuant to § 1-26(d), an application for an adjournment of such date by that other party, especially if such application is based upon a scheduling conflict, will be decided with due regard to the ex parte nature of the case scheduling.
(d) An attorney must file an affirmation of actual engagement prior to a ruling on an adjournment sought on that basis. Such affirmation must state the name and nature of the conflicting matter, the court or tribunal hearing the matter, the judge before whom it is scheduled, the date that the conflicting engagement became known to counsel, and the date, time, place and approximate duration of the engagement.
(e) Approved adjournments, other than adjournments granted on the record, must be promptly confirmed in writing by the applicant, to all parties and to the administrative law judge.
(f) Withdrawal of a case from the calendar by the petitioner will not be subject to the "good cause" requirement of subdivision (b) of this section. However, such withdrawal, other than pursuant to settlement agreement or other final disposition of the case, will be permitted only upon application to the administrative law judge, who may grant or deny the application, either in full or upon stated terms and conditions.
(g) At the discretion of the administrative law judge, a grant of an adjournment may be conditioned upon the imposition of costs for travel, lost earnings and witness fees, which may be assessed against the party causing the need for an adjournment.
(h) If an administrative law judge determines that a case is not ready for trial or conference and that an adjournment is inappropriate, the judge may remove the case from the calendar. Unless otherwise directed by the administrative law judge, the case will be administratively closed if the parties do not restore the matter to the calendar within 30 days.
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§ 1-33 Discovery.
(a) Requests for production of documents, for identification of trial witnesses, and for inspection of real evidence to be introduced at the trial may be directed by any party to any other party without leave of the administrative law judge.
(b) Depositions must only be taken upon motion for good cause shown. Other discovery devices, including interrogatories, will not be permitted except upon agreement among the parties or upon motion for good cause shown. Demands for bills of particulars will be deemed to be interrogatories. Resort to such extraordinary discovery devices will not generally be cause for adjournment of a conference or trial.
(c) Discovery must be requested and completed promptly, so that each party may reasonably prepare for trial. A demand for identification of witnesses, for production of documents, or for inspection of real evidence to be introduced at trial must be made not less than twenty days before trial, or not less than twenty-five days if service of the demand is by mail. An answer to a discovery request must be made within fifteen days of receipt of the request, or within ten days if service of the answer is by mail. An objection to a discovery request must be made as promptly as possible, but in any event within the time for an answer to that request. Different times may be fixed by consent of the parties, or by the administrative law judge for good cause. Notwithstanding the foregoing time periods, where the notice of the trial is served less than twenty-five days in advance of trial, discovery must proceed as quickly as possible, and time periods may be fixed by consent of the parties or by the administrative law judge.
(d) (1) Parties are encouraged to resolve discovery disputes without the intervention of an administrative law judge. A party objecting to discovery should immediately commence discussion with the requesting party to clarify and possibly resolve the dispute.
(2) Any unresolved discovery dispute must be presented to the assigned administrative law judge sufficiently in advance of the trial to allow a timely determination. A written motion to compel discovery must be served on all parties and the administrative law judge assigned to conduct the trial. The motion must state what efforts the parties have made to resolve discovery disputes. Any party objecting to a discovery motion must state, in writing, the grounds for the objection. In deciding whether to grant a request, the administrative law judge may consider the timeliness of discovery requests and responses and of discovery-related motions, the complexity of the case, the need for the requested discovery, and the relative resources of the parties.
(3) In ruling upon a discovery motion, the administrative law judge may deny the motion, order compliance with a discovery request, order other discovery, or take other appropriate action. The administrative law judge may grant or deny discovery upon specified conditions, including payment by one party to another of stated expenses of the discovery. Failure to comply with an order compelling discovery may result in imposition of appropriate sanctions upon the disobedient party, attorney or representative, such as the sanctions set forth in § 1-13(e), the preclusion of witnesses or evidence, drawing of adverse inferences, or, under exceptional circumstances, removal of the case from the calendar, dismissal of the case, or declaration of default.
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§ 1-34 Pre-Trial Motions.
(a) Pre-trial motions will be consolidated and addressed to the administrative law judge as promptly as possible, and sufficiently in advance of the trial to permit a timely decision to be made. Delay in presenting such a motion may, in the discretion of the administrative law judge, weigh against the granting of the motion, or may lead to the granting of the motion upon appropriate conditions.
(b) A moving party must request in writing an informal conference with the administrative law judge before any dispositive motion will be heard. The request must, in no more than two pages, set forth the nature of the motion.
(c) The administrative law judge may in his or her discretion permit pre-trial motions to be made orally, including by telephone, electronic means or in writing. The administrative law judge may require the parties to submit legal briefs on any motion. Parties are encouraged to make pre-trial motions, or to conduct preliminary discussions and scheduling of such motions, by conference telephone call or by electronic means to the administrative law judge.
(d) When a motion is made on papers, the motion papers must state the grounds upon which the motion is made and the relief or order sought. Motion papers must include notice to all other parties of their time pursuant to subdivision (d) of this section to serve papers in opposition to the motion. Motion papers and papers in opposition must be served on all other parties, and proof of service must be filed with the papers. The filing of motion papers or papers in opposition by a representative who has not previously appeared will constitute the filing of a notice of appearance by that representative, and must conform to the requirements of § 1-11(b).
(e) Unless otherwise directed by the administrative law judge upon application or sua sponte, the opposing party must file and serve responsive papers no later than eight days after service of the motion papers if service of the motion papers was personal or by electronic means, and no later than thirteen days after service if service of the motion papers was by mail.
(f) The moving party must not file reply papers unless authorized by the administrative law judge, and oral argument will not be scheduled except upon the direction of the administrative law judge.
(g) Nothing in this section limits the applicability of other provisions to specific pre-trial motions. For instance, an application for withdrawal or substitution of counsel is also governed by § 1-12; an application for an adjournment is also governed by § 1-32; and an application for issuance of a subpoena is also governed by § 1-43.
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