CHAPTER
1
Rules of Practice Applicable to Cases at OATH Generally
Subchapter
A - General Matters
§
1-01 Definitions. As used in this chapter:
Administrative law judge.
"Administrative
law judge" shall mean the person assigned to preside over
a case, whether the chief administrative law judge or a person
appointed by the chief administrative law judge.
Agency. "Agency"
shall mean any commission, board, department, authority, office
or other governmental entity authorized or required by law
to refer a case to OATH, regardless of whether the agency
is petitioner or respondent in such a case.
CAPA. "CAPA" shall
mean the City Administrative Procedure Act, §§ 1041
to 1047 of the New York City Charter (“Charter”).
Case. "Case" shall
mean an adjudication pursuant to CAPA, § 1046, referred
to OATH pursuant to Charter, § 1048.
Chief administrative law judge.
"Chief administrative law judge" shall mean the
director of OATH appointed by the mayor pursuant to Charter,
§ 1048.
Electronic means. "Electronic
means" shall mean any method of transmission of information
between computers or other machines designed for the purpose
of sending and receiving such transmissions, and which allows
the recipient to reproduce the information transmitted in
a tangible medium of expression, e.g. facsimile transmission
and e-mail.
Filing. "Filing"
shall mean submitting papers to OATH, whether in person, by
mail, or by electronic means, for inclusion in the record
of proceedings in a case.
Mailing. "Mailing"
shall mean the deposit, in a post office or official depository
under the exclusive care and custody of the United States
Postal Service, of a paper enclosed in a first class postpaid
wrapper, addressed to the address designated by a person for
that purpose or, if none is designated, at such person’s
last known address.
OATH. "OATH" shall
mean the Office of Administrative Trials and Hearings.
Petition. "Petition"
shall mean a document, analogous to a complaint in a civil
action, which states the claims to be adjudicated.
Petitioner. "Petitioner"
shall mean a party asserting claims.
Respondent. "Respondent"
shall mean a party against whom claims are asserted.
§
1-02 Jurisdiction.
Pursuant to Charter, § 1049(3), OATH's jurisdiction includes
the authority to
render any ruling or order necessary and appropriate under
applicable law or agency rule for the just and efficient adjudication
of cases.
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Annotation 1-02
§ 1-03 Applicability.
This chapter applies
to the conduct of all cases, including hearings, pre-hearing
and post-hearing matters, except to the extent that this chapter
may be
superseded by CAPA or other provision of law.
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§
1-04 Construction and Waiver.
This title shall
be liberally construed to promote just and efficient adjudication
of cases. This title may be waived or modified on such terms
and conditions as
may be determined in a particular case to be appropriate by
an administrative
law judge.
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§ 1-05 Effective Date.
This chapter shall
be effective on the first day permitted by CAPA, § 1043(e),
and shall apply to all cases. However, for cases initiated
prior to the effective date of these rules, no act which was
valid, timely or otherwise proper under the rules applicable
at the time of the act will be rendered improper by the subsequent
effectiveness of this chapter.
§ 1-06 Computation of Time.
Periods of days
prescribed in this chapter shall be calculated in calendar
days, except that when a period of days expires on a Saturday,
Sunday or legal holiday, the period shall run until the next
business day. Where this chapter prescribes different time
periods for taking an action depending whether service of
papers is personal or by mail, service of papers by electronic
means shall be deemed to be personal service, solely for purposes
of calculating the applicable period of time.
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§ 1-07 Filing
of Papers.
(a) Generally. Papers may be filed at OATH
in person, by mail or by electronic means.
(b) Headings. The subject matter heading for each paper sent
by personal service, mail or electronic means must indicate
the OATH index number where one has been assigned pursuant
to § 1-26(b).
(c) Means of service on adversary. Submission of papers by
a party in a case to the administrative law judge by electronic
means mail or personal delivery without providing equivalent
method of service to all other parties shall be deemed to
be an ex parte communication.
(d) Proof of service. Proof of service must be maintained
by the parties for all papers filed at OATH. Proof of service
shall be in the form of an affidavit by the person effecting
service, or in the form of a signed acknowledgement of receipt
of papers by the person receiving the papers. A writing admitting
service by the person to be served is adequate proof of service.
Proof of service for papers served by electronic means, in
addition to the foregoing, may also be in the form of a record
confirming delivery or acknowledging receipt of the electronic
transmission.
§ 1-08 Access
to Facilities and Programs by People with Disabilities.
OATH is committed to providing equal access
to its facilities and programs to people with disabilities
and OATH will make reasonable accommodations requested by
people with disabilities. A person requesting an accommodation
for purposes of participation in a case at OATH, including
attendance as a member of the public, shall request such accommodation
sufficiently in advance of the proceeding in which the person
wishes to participate to permit a reasonable time to evaluate
the request. A request for accommodation shall be submitted
to OATH's office manager.
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Subchapter
B - Rules of Conduct
§
1-11 Appearances.
(a) A party may appear in person, by an attorney, or by a
duly authorized representative. A person appearing for a party,
including by telephone conference call, is required to file
a notice of appearance with OATH. Docketing of a case by an
attorney or representative of a party shall be deemed to constitute
the filing of a notice of appearance by that person. The filing
of any papers by an attorney or representative who has not
previously appeared shall constitute the filing of a notice
of appearance by that person, and shall conform to the requirements
of subdivisions (b) and (d) of this section.
(b) The appearance of a member in good standing
of the bar of a court of general jurisdiction of any state
or territory of the United States shall be indicated by the
suffix "Esq." and the designation "attorney
for (petitioner or respondent)", and the appearance of
any other person shall be indicated by the designation "representative
for (petitioner or respondent)".
(c) Absent extraordinary circumstances, no
application shall be made or argued by any attorney or other
representative who has not filed a notice of appearance. Participation
in a telephone conference call on behalf of a party by an
attorney or representative of the party shall be deemed an
appearance by the attorney or representative. Nonetheless,
upon making such an appearance, the attorney or representative
shall file a notice of appearance in conformity with subdivisions
(b) and (d) of this section.
(d) A person may not file a notice of appearance
on behalf of a party unless he or she has been retained by
that party to represent the party before OATH. Filing a notice
of appearance constitutes a representation that the person
appearing has been so retained. Filing a notice of appearance
pursuant to §1-11(a) of this subchapter constitutes a
representation that the person appearing has read and is familiar
with the rules of this subchapter.
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§
1-12 Withdrawal and Substitution of Counsel.
(a) An attorney
who has filed a notice of appearance shall not withdraw from
representation without the permission of the administrative
law judge, on application. Withdrawals shall not be granted
unless upon consent of the client or when other cause exists
as delineated in the applicable provisions of the Code of
Professional Responsibility.
(b) Notices of substitution of counsel may be served and filed
more than twenty days before trial without leave of the administrative
law judge. Applications for later substitutions of counsel
shall be granted freely absent prejudice or substantial delay
of proceedings.
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§
1-13 Conduct; Suspension From Practice at OATH.
(a) Individuals appearing before OATH shall comply with the
rules of this chapter and any other applicable rules, and
shall comply with the orders and directions of the administrative
law judge.
(b) Individuals appearing before OATH shall
conduct themselves at all times in a dignified, orderly and
decorous manner. In particular, at the hearing, all parties,
their attorneys or representatives, and observers shall address
themselves only to the administrative law judge, avoid colloquy
and argument among themselves, and cooperate with the orderly
conduct of the hearing.
(c) Attorneys and other representatives appearing
before OATH shall be familiar with the rules of this title.
(d) Attorneys appearing before OATH shall
conduct themselves in accordance with the canons, ethical
considerations and disciplinary rules set forth in the code
of professional responsibility in their representation of
their clients, in their dealings with other parties, attorneys
and representatives before OATH, and with OATH’s administrative
law judges and staff.
(e) Willful failure of any person to abide
by the standards of conduct stated in paragraphs (a) through
(d) of this section, may, in the discretion of the administrative
law judge, be cause for the imposition of sanctions. Such
sanctions may include formal admonishment or reprimand, assessment
of costs or imposition of a fine, exclusion of the offending
person from the proceedings, exclusion or limitation of evidence,
adverse evidentiary inference, adverse disposition of the
case, in whole or in part, or other sanctions as the administrative
law judge may determine to be appropriate. The imposition
of sanctions may be made after a reasonable opportunity to
be heard. The form of the hearing shall depend upon the nature
of the conduct and the circumstances of the case.
(f) In the event that an attorney or other
representative of a party persistently fails to abide by the
standards of conduct stated in paragraphs (a) through (d)
of this section, the chief administrative law judge may, upon
notice to the attorney or representative and a reasonable
opportunity to rebut the claims against him or her, suspend
that attorney or representative from appearing at OATH, either
for a specified period of time or indefinitely until the attorney
or representative demonstrates to the satisfaction of the
chief administrative law judge that the basis for the suspension
no longer exists.
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§
1-14 Ex Parte Communications.
(a) Except for ministerial matters, and except on consent,
in an emergency, or as provided in § 1-31(a), communications
with the administrative law judge concerning a case shall
only occur with all parties present. If an administrative
law judge receives an ex parte communication concerning
the merits of a case to which he or she is assigned, then
he or she shall promptly disclose the communication by placing
it on the record, in detail, including all written and oral
communications and identifying all individuals with whom he
or she has communicated. A party desiring to rebut the ex
parte communication shall be allowed to do so upon request.
(b) Communications between OATH and a party docketing a case,
to the extent necessary to the placement of a case on the
trial calendar or conference calendar pursuant to § 1-26(a)
, shall be deemed to be ministerial communications. Communications
between OATH and a party docketing a case, to the extent necessary
to a request for expedited calendaring pursuant to §
1-26(c), shall be deemed to be emergency communications.
Go Here
for Annotation 1-14
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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 shall 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 shall include a short and plain statement
of the matters to be adjudicated, and a reference to the
particular sections of the law and rules involved. The
petition shall specifically allege the incident, activity
or behavior at issue, and, where appropriate, the date,
time and place of occurrence. It shall identify the law,
rule, regulation, contract provision, or policy that was
allegedly violated.
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§
1-23 Service of the Petition.
(a)
The petitioner shall be responsible for serving the respondent
with the petition. The petition shall 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 shall 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.
(b) Service of the petition shall 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 shall 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, shall be presumed to be reasonably calculated
to achieve actual notice. Appropriate proof of service
shall be maintained.
(c) A copy of the petition and accompanying notices, with
proof of service, shall 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 shall be made as promptly as possible. If
a pleading is to be
amended less than twenty-five days before the commencement
of the hearing, 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 shall 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 shall
place it on the trial calendar, the conference calendar,
or on open status. Absent prejudice, cases involving the
same respondent or respondents shall be scheduled for
joint trials or conferences, as shall cases alleging different
respondents' involvement in the same incident or incidents.
(b) When a case is docketed, it shall be given an index
number and assigned to an administrative law judge. Assignments
shall be made and changed in the discretion of the chief
administrative law judge or his or her designee, and motions
concerning such assignments shall 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 shall
serve the notice of conference or trial required by §
1-28, within one business day of selecting that date.
Whenever practicable, such notice shall be served by personal
delivery or electronic means.
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§
1-27 Disqualification of Administrative Law Judges.
(a) A motion for disqualification of an administrative
law judge shall be addressed to that administrative law
judge, shall be accompanied by a statement of the reasons
for such application, and shall be made as soon as practicable
after a party has reasonable cause to believe that grounds
for disqualification exist.
(b) The administrative law judge shall 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 shall 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 shall 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 shall 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
shall serve each other party with notice of the following:
the date, time and place of the hearing or conference;
each party’s right to representation by an attorney
or other representative at the hearing or conference;
the requirement that a person representing a party at
the hearing or conference must file a notice of appearance
with OATH prior to the hearing or conference; and, in
a notice of a hearing 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 hearing or other disposition against the respondent.
The notice may be served personally or by mail, and appropriate
proof of service shall be maintained. A copy of the notice
of conference, with proof of service, shall be filed with
OATH at or before the commencement of the conference.
A copy of the notice of trial, with proof of service,
shall 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 shall
include notice of such joinder.
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Annotation 1-28
§
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 shall 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,
shall 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 shall be expected to know their availability and
the availability of their witnesses for trial.
§ 1-31 Settlement Conferences and
Agreements.
(a) If settlement
is to be discussed at the conference, each party shall
have an individual possessing authority to settle the
matter either present at the conference or readily accessible.
A settlement conference shall 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.
(b) All settlement offers, whether or not made at a conference,
shall be confidential and shall be inadmissible at trial
of any case. Administrative law judges shall not be called
to testify in any proceeding concerning statements made
at a settlement conference.
(c) A settlement shall 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 shall be notified immediately
pursuant to § 1-32(f). Copies of all written settlement
agreements shall be sent promptly to OATH.
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§ 1-32 Adjournments.
(a) Applications
for adjournments of conferences or hearings shall 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, shall be deemed to be an adjournment.
(b) Applications to adjourn conferences or hearings shall
be made to the assigned administrative law judge as soon
as the need for the adjournment becomes apparent. Applications
for adjournments are addressed to the discretion of the
administrative law judge, and shall be granted only for
good cause. Although consent of all parties to a request
for an adjournment shall be a factor in favor of granting
the request, such consent shall not by itself constitute
good cause for an adjournment. Delay in seeking an adjournment
shall 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, shall be decided
with due regard to the ex parte nature of the
case scheduling.
(d) Counsel shall file an affirmation of actual engagement
prior to a ruling on an adjournment sought on that basis.
Such affirmation shall 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, shall 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
shall 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, shall 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.
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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 hearing may be directed by any party to any other
party without leave of the administrative law judge.
(b) Depositions shall only be taken upon motion for good
cause shown. Other discovery devices, including interrogatories,
shall not be permitted except upon agreement among the
parties or upon motion for good cause shown. Demands for
bills of particulars shall be deemed to be interrogatories.
Resort to such extraordinary discovery devices shall not
generally be cause for adjournment of a conference or
hearing.
(c) Discovery shall 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 shall 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 shall 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 shall
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 hearing is served
less than twenty-five days in advance of trial, discovery
shall proceed as quickly as possible, and time periods
may be fixed by consent of the parties or by the administrative
law judge.
(d) Any discovery dispute shall be presented to the assigned
administrative law judge sufficiently in advance of the
hearing to allow a timely determination. Discovery motions
are addressed to the discretion of the administrative
law judge. 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 shall be among the factors in
the administrative law judge's exercise of discretion.
(e) 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 shall be consolidated and addressed to the administrative
law judge as promptly as possible, and sufficiently in
advance of the hearing 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) 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.
(c) Motion papers shall state the grounds upon which the
motion is made and the relief or order sought. Motion
papers shall 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 shall be served on all other parties,
and proof of service shall be filed with the papers. The
filing of motion papers or papers in opposition by a representative
who has not previously appeared shall constitute the filing
of a notice of appearance by that representative, and
shall conform to the requirements of § 1-11(b).
(d) Unless otherwise directed by the administrative law
judge upon application or sua sponte, the opposing
party shall 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.
(e) Reply papers shall not be filed unless authorized
by the administrative law judge, and oral argument shall
not be scheduled except upon the direction of the administrative
law judge.
(f) Nothing in this section shall limit 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; an
application for issuance of a subpoena is also governed
by § 1-43.
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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 shall have all of their witnesses available
on the hearing date. A party intending to introduce
documents into evidence shall 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).
§ 1-43 Subpoenas.
(a) A subpoena ad testificandum requiring the
attendance of a person to give testimony prior to or
at a hearing or a subpoena duces tecum requiring
the production of documents or things at or prior to
a hearing 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 shall be deemed to be a motion,
and shall be made in compliance with § 1-34 or
§ 1-50, as appropriate; provided, however, that
such a motion shall 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 shall 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 shall
bear the cost of service, and of witness and mileage
fees, which shall 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 shall
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 shall
be made to the administrative law judge.
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§
1-44 Interpreters.
A party in need of an interpreter at a conference or
hearing shall advise the administrative law judge of
such need as soon as possible. The administrative law
judge may accept as an interpreter a friend or relative
of a party or witness, or any other person who can provide
acceptable translation. Otherwise, the administrative
law judge shall direct that an interpreter be obtained
from an official registry of interpreters or shall otherwise
be assured that a qualified interpreter is provided.
§ 1-45 Failure to Appear.
All parties, counsel 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, shall 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 Hearing.
(a) Compliance with technical rules of evidence,
including hearsay rules, shall not
necessarily be required. Traditional rules governing
trial sequence shall 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 shall 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 shall 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 shall forward
only the requested file or record, without accompanying
material, and such file or record shall 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 shall 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 shall be noted
in the record, or appended thereto. The parties shall
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 shall 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
shall be 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 shall make or cause to be made a stenographic,
electronic, audio,
audio-visual or other verbatim or photographic reproduction
of any hearing or other
proceeding, whether such hearing or other proceeding
is conducted in person, by telephone, or otherwise,
except upon application to the administrative law judge.
Except as otherwise provided by law (e.g. N.Y.
Civil Rights Law, § 52), such application shall
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 shall 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.
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§ 1-50 Trial Motions.
Motions may be made during the hearing orally or in
writing. Trial motions made in writing shall 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 shall
be reserved until closing statements.
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§
1-51 The Transcript.
Hearings shall be stenographically or electronically
recorded, and the recordings shall be transcribed, unless
the administrative law judge directs otherwise. In the
discretion of the administrative law judge, matters
other than the hearing may be recorded and such recordings
may be transcribed. Transcripts shall be made part of
the record, and shall be made available upon request
as required by law.
§
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.
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§
1-52 Post-Trial Motions.
Post-trial
motions shall 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,
shall be addressed to the deciding authority.
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CHAPTER
2
Additional
Rules of Practice Applicable to Particular Types of
Cases at OATH
Subchapter
A - Additional Rules for Prequalified Vendor Appeals
§
2-01 Applicability.
This subchapter shall apply solely to prequalified vendor
appeals pursuant to § 324(b) of the Charter and
the rules of the Procurement Policy Board, 9 RCNY §
3-10(m). Chapter 1 shall also apply to such proceedings
except to the extent that it is inconsistent with this
subchapter.
§ 2-02 Docketing; Service
of the Petition.
(a) A vendor shall docket an appeal by delivering to
OATH a completed intake sheet, with a petition and appropriate
proof of service of the petition upon the agency whose
prequalification determination is to be reviewed. The
petition shall include a copy of the determination to
be reviewed and shall state the nature and basis of
the challenge to the determination.
(b) The petition shall be accompanied by a notice to
the respondent of its time to serve and file an answer.
The notice described in § 1-23(a) shall not be
required.
§ 2-03 Answer; Reply.
(a) If the petition is served personally on
the respondent, the respondent shall file an answer,
with appropriate proof of service, within fourteen days
of the respondent’s receipt of the petition. If
the petition is served by mail, it shall be presumed
that the respondent received the petition five days
after it was served.
(b) The answer shall include the determination to be
reviewed, the basis of the determination, admission,
denial or other response to each allegation in the petition,
and a statement of any other defenses to the petition.
The basis of the determination included in the answer
shall consist of all documentation and information that
was before the agency head, including any submissions
by the vendor. To the extent that information in support
of the determination was not written, it shall be reduced
to writing and included in the answer in the form of
affidavits or affirmations, documentary exhibits, or
other evidentiary material. Also, defenses may be supported
by evidentiary material. The answer may be accompanied
by a memorandum of law.
(c) If the respondent's attorney or other representative
has not already filed a notice of appearance, such notice
shall be filed with the answer.
(d) Within fifteen days of the service of the answer,
or within twenty days if such service is by mail, the
petitioner may file a reply. The reply may include affidavits
or affirmations, documentary exhibits, or other evidentiary
material in rebuttal of the answer, including information
provided to the agency head which was not written. The
reply may be accompanied by a memorandum of law.
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§ 2-04 Further Proceedings.
An appeal shall be decided on the petition, answer and
reply, unless the administrative law judge directs further
written submissions, oral argument, or an evidentiary
hearing, as may be necessary to the decision of the
appeal.
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§ 2-05 Discovery.
Discovery shall not be permitted except upon order of
the administrative law judge in
connection with § 2-04.
§ 2-06 Determination.
The administrative law judge shall render as expeditiously
as possible a determination as to whether the agency's
decision is arbitrary or capricious.
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§
2-07 Copies of Determination.
The respondent shall send copies of the administrative
law judge’s determination to such non-parties
as may be required, for instance, by the rules of the
Procurement Policy Board, 9 RCNY § 3-10(m)(5).
Subchapter B - Reserved
Subchapter C - Additional Rules for Human Rights Cases
§
2-21 Applicability.
This
subchapter shall apply solely to cases brought by the
New York City Commission on Human Rights pursuant to
the City Human Rights Law,
title 8 of the New York City Administrative Code. Chapter
1 of this title shall also apply to such proceedings
except to the extent that it is inconsistent with this
subchapter.
§
2-22 Definitions.
For purposes of this subchapter:
Commission.
"Commission" shall mean the New York City Commission
on Human Rights.
Complainant.
"Complainant"
shall be defined according to the Commission's
rules, 47 RCNY § 1-03.
Party.
"Party" shall
be defined according to the Commission's rules, 47 RCNY
§ 1-03.
Petition.
The complaint
as defined in the Commission's rules, 47 RCNY §§
1-11, 1-12
shall constitute the petition as defined in § 1-01
of Chapter 1 of this title.
Petitioner.
"Petitioner"
shall mean the Law Enforcement Bureau of the Commission.
Report
and recommendation. The
report and recommendation referred to in this title
shall constitute the recommended decision and order
referred to in the Commission's rules.
§
2-23 Proceedings Before Referral to OATH.
Proceedings
before the case is docketed at OATH shall be governed
by the Commission's rules (47 RCNY §§ 1-01
to 1-62).
§
2-24 Docketing the Case at OATH.
(a) Notwithstanding the provisions of § 1-26 of
this title, only the petitioner may docket a case at
OATH. The petitioner shall docket a case by delivering
to OATH a completed intake sheet, the notice of referral
required by the Commission's rules (47 RCNY § 1-71),
the pleadings and any amendments to the pleadings, any
notices of appearances filed with the petitioner pursuant
to the Commission's rules (47 RCNY § 1-15), and
any changes of address filed with the petitioner pursuant
to the Commission's rules (47 RCNY § 1-16).
(b) Upon docketing the case at OATH, the petitioner
shall serve notice of trial, if a trial date has been
selected, and notice of conference, if a conference
date has been selected, in compliance with § 1-28
of this title.
§
2-25 Intervention.
(a)
A person may move to intervene as a party at any time
before commencement of the hearing. Intervention may
be permitted, in the discretion of the administrative
law judge, if the proposed intervenor demonstrates a
substantial interest in the outcome of the case. In
determining applications for intervention, the administrative
law judge shall consider the timeliness of the application,
whether the issues in the case would be unduly broadened
by grant of the application, the nature and extent of
the interest of the proposed intervenor and the prejudice
that would be suffered by the intervenor if the application
is denied, and such other factors as may be relevant.
The administrative law judge may grant the application
upon such terms and conditions as he or she may deem
appropriate and may limit the scope of an intervenor's
participation in the adjudication.
(b)
A complainant shall be permitted to intervene as of
right, upon notice to all parties and the administrative
law judge at or before the first conference in the case,
or, if no conference is held, before commencement of
trial. The Commission's Law Enforcement Bureau shall
prosecute the complaint. Complainants and respondents
may be represented by counsel or other duly authorized
representatives, who shall file notices of appearance
pursuant to the Commission's rules (47 RCNY § 1-15),
if before referral of the case to OATH, or pursuant
to § 1-11 of this title, if after such referral.
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§
2-26 Withdrawal or Dismissal of the Petition.
After
referral of a case to OATH, but before commencement
of the hearing, dismissal of the case by the petitioner
on the grounds provided in the Commission's rules (47
RCNY § 1-22), or withdrawal of the case by
the petitioner pursuant to § 1-32(f) of this title,
shall be effected by notice to all other parties and
to the administrative law judge. The complainant may
move to withdraw the complaint at any time before commencement
of the hearing. All other motions to withdraw or dismiss
the petition shall be governed by §§ 1-34
and 1-50 of this title.
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§
2-27 Entry of and Relief from Default.
(a)
If the notice of referral to OATH alleges that a respondent
has not complied with the requirements of § 1-14
of the Commission's rules (47 RCNY § 1-14), the
respondent shall serve and file an affidavit asserting
that the respondent has complied with those requirements,
or asserting reasons constituting good cause for its
failure to comply with those requirements. Such affidavit
shall be served and filed at or before the first conference
in the case, or, if no conference is held, before commencement
of the hearing. If the respondent fails to serve and
file such an affidavit within the time allowed by this
paragraph, the administrative law judge shall declare
the respondent to be in default and shall preclude the
respondent from further participation in the adjudication.
If the respondent timely serves and files such an affidavit,
the administrative law judge shall decide the questions
presented, and shall either declare the respondent to
be in default and preclude the respondent from further
participation in the adjudication, or shall deny the
default in full or upon stated terms and conditions
which may include such limitations on the respondent's
participation in the adjudication as the administrative
law judge deems to be equitable.
(b) A respondent against whom a default has been entered
pursuant to paragraph (a) of this section may move at
any time before issuance of the report and recommendation
to open the default. Such a motion must include a showing
of good cause for the conduct constituting the default,
a showing of good cause for the failure to oppose entry
of the default in accordance with paragraph (a) of this
section, and a meritorious defense to the petition,
in whole or in part. In granting any such motion, the
administrative law judge may impose such terms and conditions
as he or she deems to be equitable.
§ 2-28 Settlement Conferences.
In
addition to or instead of the conduct of settlement
conferences pursuant to §§ 1-30 and 1-31 of
this title, the administrative law judge may in his
or her discretion, on the request of any party, refer
the case for a settlement conference to be conducted
by the Commission's Office of Mediation and Conflict
Resolution pursuant to the Commission's rules (47 RCNY
subchapter F). In the discretion of the administrative
law judge, proceedings at OATH may be stayed, in whole
or in part, pending completion of such settlement conference
or for any shorter period of time.
§
2-29 Discovery.
(a) Policy. Although strict compliance with
the provisions of article 31 of the Civil Practice Law
and Rules shall not be required, the principles of that
article may be applied to ensure orderly and expeditious
preparation of cases for trial.
(b) Scope of discovery.
(1)
With the exception of the substance of any oral or written
communications made by and between a complainant or
complainant's counsel and the petitioner subsequent
to a determination that probable cause exists, the materials
contained in the petitioner's investigatory file shall
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