Chapter I - Subchapter B

§1-14 Ex Parte Communications.

Procedure

Ex parte letter and motion delivered to OATH by respondent was forwarded to counsel for both parties. Human Resources Admin. v. Wong, OATH Index No. 316/15 (Dec. 1, 2014), aff’d, NYC Civ. Serv. Comm’n Case No. 2015-0836 (Nov. 4, 2015).

After petitioner’s attorney sent ALJ an ex parte e-mail requesting in camera review of several emails, ALJ disclosed the contents of the e-mail, without attachments, to attorneys for both respondents, as ALJ concluded he was obligated to do under OATH Rule 1-14. Dep’t of Buildings v. 159-17 Meyer Ave., Queens, OATH Index No. 1849/10 (Sept. 3, 2010).

When adversary was not properly served with an affidavit, ALJ forwarded the affidavit to adversary with a cover letter reminding respondent’s representative that all communications must be on notice to the adversary in keeping with OATH Rule 1-14 prohibiting ex parte communications. Dep’t of Correction v. Auguste, OATH Index No. 2770/08 (Apr. 17, 2009).

Administrative law judge (“ALJ”) received packets of documents from respondent with no indication that the documents had been mailed to petitioner’s counsel or anyone else. ALJ notified petitioner’s attorney and respondent’s attorney of the ex parte mailings and remailed the envelopes to respondent’s attorney without reviewing the contents. Respondent’s attorney was instructed to arrange a conference call if he wished to make a motion to reopen the record for submission of further evidence. Dep’t of Sanitation v. Depasquale, OATH Index No. 2508/11 (Dec. 8, 2011), adopted, Comm’r Dec. (Dec. 14, 2011), aff’d, NYC Civ. Serv. Comm’n Item No. CD 12-13-SA (Mar. 20, 2012).

Consent to Ex Parte Communications

Consent by one party to an ex parte communication by the other party must be conveyed by the consenting party to the administrative law judge. Human Resources Admin. v. Morales, OATH Index No. 306/92 (Dec. 31, 1991).

Improper Ex Parte Communications

Attorney’s notice withdrawing as counsel, which was not sent to petitioner or their counsel, was an improper ex parte communication. Matter of Gareza, OATH Index Nos. 2061/12 & 760/13 (Dec. 12, 2012), adopted in part, rejected in part, Loft Bd. Order No. 4243 (Feb. 20, 2014).

Citing previous admonishments for ex parte communications, ALJ required that any request for a subpoena must be served on OATH by hand together with an affidavit of service by hand to opposing counsel. Matter of Live Centre Tenants Association, OATH Index No. 834/05, mem. dec. (Mar. 2, 2006).

Counsel’s application to cancel hearing, sent by facsimile to administrative law judge, without indication that it was served on counsel’s adversary, was an improper ex parte communication. Human Resources Admin. v. Khoury-King, OATH Index No. 836/99 (Dec. 2, 1998).

Counsel’s submission of motion papers to this tribunal by facsimile transmission, with a copy served on the opposing party by regular mail, constituted an improper ex parte communication. Health and Hospitals Corp. (Emergency Medical Service) v. Hermida, OATH Index No. 715/95 (Mar. 28, 1995).

Although a case may be docketed by ex parte communication with OATH clerks, and upon docketing may be placed on the trial or conference calendar ex parte pursuant to paragraph (b) of this section and section 1-26(d) of this chapter, selection of a date after grant of an adjournment may not be done ex parte. Transit Auth. v. Rivera, OATH Index No. 418/92 (Jan. 22, 1992).

An application for an adjournment, even on consent of all parties, is not ministerial and may not be made ex parte under paragraph (a) of this section. Human Resources Admin. v. Morales, OATH Index No. 306/92 (Dec. 31, 1991).