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Chapter I - Subchapter C

§1-31 Settlement Conferences.

Under OATH’s Rules, the functions of a trial judge and settlement judge are separate, to encourage settlements, such that the settlement conference judge, who may hear the candid positions of both sides and be privy to settlement offers that are not admissible at trial, does not, by rule, serve as the trial judge. Dep’t of Education v. Brust, OATH Index No. 2280/07, mem. dec. (Sept. 25, 2009).

ALJ denied motion to recuse herself as trial judge after petitioner forwarded her emails with references to settlement discussions.  Although respondent alleged that exposure to these emails undermined OATH Rule 1-31, the ALJ found that the emails did not contain meaningful discussions of the settlement options and would not affect her ability to render an impartial decision. Matter of Gatien, OATH Index Nos. 2121/13, 1033/14, & 2233/14 (May 13, 2016), adopted, Loft Bd. Order No. 4553 (Sept. 15, 2016).

Conference participants not to be called as witness about Statements made at Settlement Conferences

ALJ sustained objection to testimony concerning a monetary demand made by tenants during settlement conference because OATH’s Rules protect the confidentiality of such discussions. Dep’t of Housing Preservation & Development v. Bryant, OATH Index No. 149/07 (Jan. 5, 2007), aff’d, 2007 N.Y. Misc. LEXIS 9224 (Sup. Ct. N.Y. Co. Oct. 10, 2007).

Settlement offers should not become a part of trial because discussing what happens during settlement negotiations can stymie the process. Dep’t of Sanitation v. Basile, OATH Index No. 2605/17 (July 6, 2018).

Application to call adversary’s former attorney to testify at trial about statements made during settlement conference was denied. Opinions stated by the attorney during a settlement conference are not relevant or admissible at trial. Comm’n on Human Rights v. Vudu Lounge, OATH Index No. 233/12 (Dec. 16, 2011), adopted, Comm’n Dec. & Order (Mar. 22, 2012).

A motion to call an administrative law judge as a witness with regard to the authenticity of a document that respondent provided to petitioner during a settlement conference was denied. Under this rule, conference judges cannot be directed to testify about representations made during private conference. Dep't of Buildings v. Goldberg, OATH Index No. 652/03, mem. dec. (Jan. 9, 2003).

Duty to Participate in Good Faith

Petitioner failed to demonstrate that it met the requirements under OATH's rules to participate in the settlement conference process in good faith where prior precedent suggested that penalties far more minimal than what petitioner offered would be appropriate in the circumstances, assuming the charge was proved. Application to restore case to trial calendar was granted where no benefit could come from delaying trial any further. Fire Dep't v. O'Brien, OATH Index No. 1308/98, mem. dec. (June 16, 1998).