Chapter 1: Subchapter D - Trials and Hearings

§ 1-41 Consolidation; Separate Trials.

All or portions of separate cases may be consolidated for trial, or portions of a single case may be severed for separate trials, in the discretion of the administrative law judge. Consolidation or severance may be ordered on motion or sua sponte, in furtherance of justice, efficiency or convenience.
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§ 1-42 Witnesses and Documents.

The parties must have all of their witnesses available on the trial date. A party intending to introduce documents into evidence must bring to trial copies of those documents for the administrative law judge, the witness, and the other parties. Repeated failure to comply with this section may be cause for sanctions, as set forth in § 1-13(e).
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§ 1-43 Subpoenas.

(a) A subpoena ad testificandum requiring the attendance of a person to give testimony prior to or at a trial or a subpoena duces tecum requiring the production of documents or things at or prior to a trial may be issued only by the administrative law judge upon application of a party or sua sponte.

(b) A request by a party that the administrative law judge issue a subpoena will be deemed to be a motion, and must be made in compliance with § 1-34 or § 1-50, as appropriate; provided, however, that such a motion must be made on 24 hours notice by electronic means or personal delivery of papers, including a copy of the proposed subpoena, unless the administrative law judge directs otherwise. The proposed subpoena may be prepared by completion of a form subpoena available from OATH. The making and scheduling of requests for issuance of subpoenas by telephone conference call to the administrative law judge or by electronic means is encouraged.

(c) Subpoenas must be served in the manner provided by § 2303 of the Civil Practice Law and Rules, unless the administrative law judge directs otherwise. The party requesting the issuance of a subpoena will bear the cost of service, and of witness and mileage fees, which will be the same as for a trial subpoena in the Supreme Court of the State of New York.

(d) In the event of a dispute concerning a subpoena after the subpoena is issued, informal resolution must be attempted with the party who requested issuance of the subpoena. If the dispute is not thus resolved, a motion to quash, modify or enforce the subpoena must be made to the administrative law judge.

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§ 1-44 Interpreters.

(a) OATH will provide language assistance services to a party or their witnesses who are in need of such services to communicate at a trial or conference. All requests for language assistance must be made to OATH’s calendar unit.

(b) A request for language assistance by telephone may be made at any time before the trial or conference.

(c) A request for in-person interpretation must be made at least five (5) business days before the trial or conference.

(d) A request for sign language interpretation must be made at least three (3) calendar days before the trial or conference.

§ 1-45 Failure to Appear.

All parties, attorneys and other representatives are required to be present at OATH and prepared to proceed at the time scheduled for commencement of trial. Commencement of trial, or of any session of trial, will not be delayed beyond the scheduled starting time except for good cause as determined in the discretion of the administrative law judge. Absent a finding of good cause, and to the extent permitted by the law applicable to the claims asserted in the petition, the administrative law judge may direct that the trial proceed in the absence of any missing party or representative, render a disposition of the case adverse to the missing party, or take other appropriate measures, including the imposition of sanctions listed in § 1-13(e). Relief from the direction of the administrative law judge may be had only upon motion brought as promptly as possible pursuant to § 1-50 or § 1-52. The administrative law judge may grant or deny such a motion, in whole, in part, or upon stated conditions.
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§ 1-46 Evidence at the Trial.

(a) Compliance with technical rules of evidence, including hearsay rules, will not
necessarily be required. Traditional rules governing trial sequence will apply. In addition, principles of civil practice and rules of evidence may be applied to ensure an orderly proceeding and a clear record, and to assist the administrative law judge in the role as trier of fact. Traditional trial sequence may be altered by the administrative law judge for convenience of the parties, attorneys, witnesses, or OATH, where substantial prejudice will not result.

(b) The administrative law judge may limit examination, the presentation of testimonial, documentary or other evidence, and the submission of rebuttal evidence. Objections to evidence offered, or to other matters, will be noted in the transcript, and exceptions need not be taken to rulings made over objections. The administrative law judge may call witnesses, may require any party to clarify confusion, fill gaps in the record, or produce witnesses, and may question witnesses directly.

(c) In the discretion of the administrative law judge, closing statements may be made orally or in writing. On motion of the parties, or sua sponte, the administrative law judge may direct written post-trial submissions, including legal briefing, proposed findings of fact and conclusions of law, or any other pertinent matter.

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§ 1-47 Evidence pertaining to penalty or relief.

(a) A separate trial will not be held as to the penalty to be imposed or the relief to be granted in the event that the petition is sustained in whole or in part.

(b) In the event that a personnel file, abstract of a personnel file, driver record, owner record, or other similar or analogous file is not admitted into evidence at the trial on the merits, the administrative law judge, upon determining that the petition will be sustained in whole or in part, may request that the petitioner forward such file or record to the administrative law judge for consideration relative to penalty or relief. That request may be conveyed to the petitioner or the petitioner's representative ex parte and without further notice to the respondent. The petitioner must forward only the requested file or record, without accompanying material, and such file or record must include only material which is available from the petitioner for inspection by the respondent as of right. In his or her report and recommendation, the administrative law judge will refer to any material from such file or record relied on in formulating the recommendation as to penalty or other relief.
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§ 1-48 Official Notice.

(a) In reaching a decision, the administrative law judge may take official notice, before or after submission of the case for decision, on request of a party or sua sponte on notice to the parties, of any fact which may be judicially noticed by the courts of this state. Matters of which official notice is taken will be noted in the record, or appended thereto. The parties will be given a reasonable opportunity on request to refute the officially noticed matters by evidence or by presentation of authority.

(b) Official notice may be taken, without notice to the parties, of rules published in the Rules of the City of New York or in The City Record. In addition, all parties are deemed to have notice that official notice may be taken of other regulations, directives, guidelines, and similar documents that are lawfully applicable to the parties, provided that any such materials that are unpublished are on file with OATH sufficiently before trial of the case to enable all parties to address at trial any issue as to the applicability or meaning of any such materials. Unpublished materials on file with OATH will be available for inspection by any party or attorney or representative of a party.

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§ 1-49 Public Access to Proceedings.

(a) Other than settlement conferences, all proceedings are open to the public, unless the administrative law judge finds that a legally recognized ground exists for closure of all or a portion of the proceeding, or unless closure is required by law. Trial witnesses may be excluded from proceedings other than their own testimony in the discretion of the administrative law judge.

(b) No person may make or cause to be made a stenographic, electronic, audio, audio-visual or other verbatim or photographic reproduction of any trial or other proceeding, whether such trial or other proceeding is conducted in person, by telephone, or otherwise, except upon application to the administrative law judge or as otherwise provided by law (e.g. N.Y. Civil Rights Law, § 52). Such application must be addressed to the discretion of the administrative law judge, who may deny the application or grant it in full, in part, or upon such conditions as the administrative law judge deems necessary to preserve the decorum of the proceedings and to protect the interests of the parties, witnesses and any other concerned persons.

(c) Transcripts of proceedings made a part of the record by the administrative law judge will be the official record of proceedings at OATH, notwithstanding the existence of any other transcript or recording, whether or not authorized under the previous subdivision of this section.

(d) Unless the administrative law judge finds that legally recognized grounds exist to omit information from a decision, all decisions will be published without redaction. To the extent applicable law or rules require that particular information remain confidential, including but not limited to the name of a party or witness or an individual's medical records, such information will not be published in a decision. On the motion of a party, or sua sponte, the administrative law judge may determine that publication of certain information will violate privacy rights set forth in applicable law or rules and may take appropriate steps to ensure that such information is not published.

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§ 1-50 Trial Motions.

Motions may be made during the trial orally or in writing. Trial motions made in writing must satisfy the requirements of § 1-34. The administrative law judge may, in his or her discretion, require that any trial motion be briefed or otherwise supported in writing. In cases referred to OATH for disposition by report and recommendation to the head of the agency, motions addressed to the sufficiency of the petition or the sufficiency of the petitioner's evidence will be reserved until closing statements.
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§ 1-51 The Transcript.

Trials will be stenographically or electronically recorded, and the recordings will be transcribed, unless the administrative law judge directs otherwise. In the discretion of the administrative law judge, matters other than the trial may be recorded and such recordings may be transcribed. Transcripts will be made part of the record, and will be made available upon request or as required by law.
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§ 1-51.1 Decision Made on the Record.

An administrative law judge may dispose of a case by making a decision or report and recommendation on the record.

§ 1-52 Post-Trial Motions.

Post-trial motions must be made in writing, in conformity with the requirements of § 1-34, to the administrative law judge, except that after issuance of a report and recommendation in a case referred to OATH for such, motions, as well as comments on the report and recommendation to the extent that such comments are authorized by law, must be addressed to the deciding authority.
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