Chapter I - Subchapter C

§ 1-34 Pre-Trial Motions.

Procedure

Written motions filed with OATH must meet certain minimum standards pursuant to subsection (c) of this section, including the caption of the case with the OATH Index number; a clear statement of the nature of the motion and the specific relief sought; a specific statement of the grounds upon which the motion is based along with supporting facts and authority; proof of service upon an adversary and notice of time within which an answer may be filed. Dep't of Correction v. Battle, OATH Index No. 1052/02, mem. dec. (May 15, 2002).

After respondent filed a memorandum of law in support of his contention that the use of the premises was not in violation of the Zoning Resolution, petitioner was granted eight days to respond to the memorandum pursuant to this rule and 48 RCNY § 1-50. Dep't of Buildings v. Owners, Occupants, and Mortgagees of 160 St. Albans Place, Staten Island, OATH Index No. 870/01 (Apr. 23, 2001).

Submission of pre-trial amicus brief permitted where judge found no delay in briefing schedule. Comm'n on Human Rights v. 325 Cooperative, Inc., OATH Index No. 1423/98, mem. dec. (July 16, 1998).

A party may remain silent in response to a motion unless the administrative law judge requires a response, and paragraph (d) of this section should be read as if the word “any” appeared before “responsive papers.” Fire Dep't v. Zollner, OATH Index No. 623/92 (June 12, 1992).

Untimeliness of a pre-trial motion may be sufficient ground for denial of the motion. Human Resources Admin. v. Man-of-Jerusalem, OATH Index No. 1021/91, mem. dec. (Nov. 12, 1991).

Particular Motions

TO DISMISS THE PETITION

In a license revocation proceeding where taxicab driver was charged with overcharging passengers, ALJ denied driver’s motion to dismiss on grounds that evidence obtained via a GPS device installed in his taxicab violated his state and federal constitutional rights. Taxi & Limousine Comm’n v. Azim, OATH Index No. 1818/11 (June 30, 2011), adopted, Comm’r Dec. (Aug. 15, 2011).

Pre-trial motions to dismiss are disfavored in practice at OATH and have only been granted in the clearest cases of failure by petitioners to state a viable claim. The burden of establishing the legal necessity of dismissal is particularly high in a case such as a civil service disciplinary action because the OATH ALJ makes recommended findings that are submitted to the referring agency for final decision. Motion denied as premature, where respondent acknowledged in her reply papers that there are issues of fact to be determined and witnesses need to be presented in support of her legal arguments. ALJ reserved decision on the merits until after trial. Dep’t of Correction v. LaSonde, OATH Index No. 2526/11, mem. dec. (July 8, 2011).

ALJ denied pre-trial motion to dismiss, rejecting argument that OATH lacks jurisdiction to hear disciplinary proceeding brought pursuant to section 75 of the Civil Service Law. Dep’t of Correction v. LaSonde, OATH Index No. 2526/11, mem. dec. (July 8, 2011).

ALJ denied respondent’s motion to dismiss disciplinary proceeding for failure to adhere strictly to agency rules governing disciplinary charges. An objection to a technical pleading defect should be filed with due diligence. Here, respondent waited over one year and failed to show that he was prejudiced by the procedure employed. Fire Dep’t v. Domini, OATH Index No. 2047/11, mem. dec. (July 28, 2011).

Pre-trial motions to dismiss are disfavored in practice at OATH and have only been granted in the clearest cases of failure by petitioners to state a viable claim. The burden of establishing the legal necessity of dismissal is particularly high in cases such as this, where the OATH ALJ makes recommended findings that are submitted for final decision to the Commission. Held, pre-trial motion to dismiss denied in discrimination case brought by the City Commission on Human Rights. Comm’n on Human Rights ex rel Hsu v. HSBC Bank, OATH Index No. 522/09, mem. dec. (Jan. 22, 2010).

ALJ denies pre-trial motion to dismiss the complaint on the ground that petitioner named the wrong entity in the complaint. Bank is subject to liability for discriminatory acts of its wholly owned subsidiary (mortgage corporation) under the “single employer” doctrine, given bank’s involvement in decision to deny job to applicant based upon her arrest record. Comm’n on Human Rights ex rel Hsu v. HSBC Bank, OATH Index No. 522/09, mem. dec. (Jan. 22, 2010).

On a pre-trial motion to dismiss, a party seeking dismissal has the burden of establishing that the relief sought must be denied as a matter of law. In such motion, the facts as alleged in the petition must be assumed to be true and the petitioner be given the benefit of every possible inference. Matter of Tenants of 51-55 West 28th Street, OATH Index No. 2877/09, mem. dec. (June 26, 2009).

Administrative law judge denied pre-trial motion to dismiss, based on allegations that hospital's intimidation of certain potential witnesses would make a fair hearing impossible, because potential witnesses identified by the respondent had not yet refused to appear or to testify at trial. Health and Hospitals Corp. (Coney Island Hospital) v. Jellinek, OATH Index No. 2192/01 (Nov. 23, 2001).

Motion to dismiss on the basis of laches and prejudicial delay was denied where respondents did not make the requisite showing of actual substantial prejudice to their ability to defend against the charges. Dep't of Buildings v. Sarabella, OATH Index Nos. 2258-59/00 (July 2, 2001).

Administrative law judge denied respondent's motion to dismiss where respondent claimed that a related matter was pending in the Federal courts and that it would be improper for the tribunal to usurp the courts' jurisdiction over any issues which might be raised in the Federal suit. Administrative law judge found that respondent's action had been irrevocably dismissed, except for a still pending motion addressed to the Supreme Court of the United States to reconsider its denial of certiorari. Triborough Bridge and Tunnel Auth. v. King, OATH Index No. 501/00, mem. dec. (Jan. 24, 2000).

On a motion to dismiss for failure to state a prima facie case, made at the close of petitioner's direct case, the trier of fact is required to afford petitioner every inference which may be properly drawn from the facts presented and to consider petitioner's evidence in its most favorable light, in determining whether proof sufficient to establish all of the necessary elements of the charged misconduct was presented. Dep't of Buildings v. Jennings, OATH Index No. 561/00 (Nov. 30, 2000).

Administrative law judge granted respondents' motion to dismiss disciplinary charges where complainant and witnesses failed to appear on scheduled trial date despite prior notice and having been subpoenaed, the case was three and a half years old and involved minor discourtesy charges, there had been previous adjournments either due to petitioner's witnesses' inability to appear or petitioner's failure to properly order respondents in for trial, and the case had been marked final by this tribunal two dates prior to date at issue. Balance of competing interests of Department in providing an opportunity for civilian complaints to be aired, respondents, in an expeditious final result, and this tribunal in the integrity of its prior rulings, weighs in favor of dismissal. Police Dep't v. Sanchez, OATH Index Nos. 548-49/00 (Feb. 16, 2000).

Petitioner is required in the first instance to present proof as to each and every element of offense in its direct case. Administrative law judge, in evaluating prima facie motion to dismiss, is required to give every favorable inference to petitioner's proof at that juncture. It is a fundamental element of petitioner's direct case to provide some proof that respondent was the offending officer. Administrative law judge granted respondent's motion to dismiss for failure to make a prima facie case, made at the close of petitioner's case, where hearsay evidence produced by petitioner failed to prove that respondent was the police officer who intentionally tightened the complainant's handcuffs to cause him pain. Police Dep't v. Kendricks, OATH Index No. 1586/00 (July 11, 2000).

Delay of almost four years between the date of the charged acts of bribery and the date of the hearing does not sustain a motion to dismiss under Charter section 1046(c) that hearing be held within a reasonable time, absent proof of substantial prejudice to respondents due to the delay. Taxi and Limousine Comm'n v. Chrisanthos, Inc., OATH Index Nos. 1626-32/95 (July 21, 1998); Statharos v. NYC Taxi & Limousine Comm'n, 269 A.D.2d 280 (1st Dep't 2000).

Motion to dismiss for untimely service of charges denied, where the conduct fell within the crimes exception to the statutory limitations period because respondent was found to have incurred principal liability for the crime of assault in the third degree as an accessory. Police Dep't v. Murray, OATH Index Nos. 1695, 1820/98 and 183/99 (Nov. 6, 1998), rev'd on other grounds, Comm'r Dec. (Dec. 3, 1999).

Parties may not decide unilaterally to proceed directly to trial and forego a previously scheduled conference without first making a motion to the administrative law judge. Human Resources Admin. v. Danagogo, OATH Index No. 373/99, letter decision dated Nov. 18, 1998.

An employee's pre-trial motion to dismiss disciplinary charges based on the statute of limitations was denied, without prejudice to renew the motion at the close of the hearing, because the applicability of the statute of limitations turned on whether the employee had committed a crime, an issue which presented mixed questions of law and fact requiring trial. Dep't of Correction v. Gilliard, OATH Index No. 587/98, mem. dec. (Dec. 17, 1997).

An employee's pre-trial motion to dismiss employee disciplinary charges on the ground that the charges were time-barred was denied as premature, because the applicability of the statute of limitations depended upon factual questions which could only be resolved after trial. Police Dep't v. Kushner, OATH Index Nos. 447-48/97, mem. dec. (Oct. 8, 1996).

A pre-trial motion to dismiss may be granted only in the clearest case of a failure to plead a viable claim. Police Dep't v. Fredericks, OATH Index Nos. 386/97, 616/97 (Feb. 18, 1997).

Where the applicability of the statute of limitations turned on whether the petitioner could prove that the respondent had committed a crime, the respondent's pre-trial motion to dismiss the petition as time-barred was denied, because it was not certain that the petitioner could not prove that the respondent had committed assault in the third degree. Police Dep't v. Fredericks, OATH Index Nos. 386/97, 616/97 (Feb. 18, 1997).

The respondents' motion to dismiss the petition on the ground of laches was denied absent evidence that the respondents' ability to defend was prejudiced by the 27-month delay between the events in question and the trial. Dep't of Correction v. Garcia, OATH Index Nos. 765/95, 767-68/95 (Aug. 29, 1995).

Pre-trial motions to dismiss are disfavored, and are granted only in the clearest cases of failure by petitioners to plead viable claims. Fire Dep't v. Zollner, OATH Index No. 623/92 (June 12, 1992).

CHANGE VENUE

Although these rules do not address venue changes, this tribunal has accommodated off-site hearings involving incarcerated witnesses for security reasons. The Civil Practice Law and Rules and related case law may be looked to for guidance. The moving party bears the burden of establishing how its witness(es) would be inconvenienced if the motion is denied. A decision to grant or deny a request is discretionary, but hardship on a party if it relates to the party’s health is usually a consideration, particularly if it is supported by a doctor’s affidavit or other medical proof. ALJ granted party’s motion to change venue to a place located away from World Trade Center site where motion was supported by psychological report. Fire Dep’t v. Peltonen, OATH Index No. 2101/08 (Oct. 9, 2008), adopted, Comm’r Dec. (Nov. 21, 2008), aff’d sub nom Peltonen v. Scoppetta, 25 Misc. 3d 1208A, 901 N.Y.S.2d 901 (Sup. Ct. Kings Co. 2009).

ALJ granted motion to change venue, made by respondent, who was unrepresented and the sole caretaker for her seriously ill husband, so that she would not have to travel to Manhattan. ALJ balanced the parties’ arguments about hardship to respondent and convenience of all the witnesses and of counsel for the agency, and considered the need for access to justice for the unrepresented. The hearing was held in respondent’s home borough, with petitioner participating by videoconference. Comm’n on Human Rights v. Coticelli, OATH Index No. 970/11 (Aug. 19, 2011), adopted, Comm’n Dec. & Order (Nov. 21, 2011).

DISQUALIFY OPPOSING COUNSEL

In an inquest hearing where petitioner's counsel was one of the few people available with relevant information about what happened almost 18 years ago, Administrative Law Judge did not disqualify attorney from acting as counsel and as a witness in proceeding finding it would impose an unfair financial hardship and further delay a lengthy proceeding. Matter of Mandara, OATH Index No. 1635/09 (Mar. 3, 2009), adopted, Loft Bd. Order No. 3506 (May 21, 2009).

Motion to disqualify counsel granted pursuant to Disciplinary Rule 5-102, which prohibits an attorney from representation when it is obvious that he may be called as a witness on a significant issue; here, the adverse party intended to use at trial an affirmation made by counsel which contained statements adverse to his client. Dep't of Finance v. Jones, OATH Index No. 1127/06, mem. dec. (Mar. 9, 2006).

Administrative law judge denied motion for disqualification of petitioner's counsel based on counsel's participation in a pre-trial investigatory interview of respondent and precluded respondent from calling petitioner's counsel as a witness. Respondent failed to show that petitioner's counsel was a "necessary" witness. Dep't of Buildings v. Jennings, OATH Index No. 561/00 (Nov. 30, 2000).

Where a subtenant brought an overcharge claim against the prime tenant, who later moved to disqualify the subtenant's attorney because the attorney also represented the building owner, the administrative law judge denied the motion, noting that the owner was not a party to the litigation and finding the alleged conflict of interest due to dual representation to be conjectural. Matter of Shannon, OATH Index No. 1757/99, mem. dec. (Apr. 15, 1999).

Motions to disqualify opposing counsel are disfavored, because a party's right to select counsel has constitutional implications, and rejection of the counsel selected can work substantial hardships. Matter of Salva Realty Corp., OATH Index No. 743/96 (Mar. 8, 1996), adopted, Loft Bd. Order No. 1935 (Mar. 28, 1996).

Although a person generally may not serve both as trial counsel and as a trial witness, an exception was permitted where, pursuant to applicable provisions of the Code of Professional Responsibility, the party's need for the individual as a witness was distinctive and disqualification of the individual from serving as trial counsel would impose a substantial hardship on the party. However, trial counsel was required to arrange for another attorney to conduct the proceedings while trial counsel testified. Matter of Salva Realty Corp., OATH Index No. 743/96 (Mar. 8, 1996), adopted, Loft Bd. Order No. 1935 (Mar. 28, 1996).

A party's motion to disqualify opposing counsel, a former city employee, based on the post-employment restrictions contained in the city's conflicts of interest law, was denied because counsel had not worked on the particular matter that was to be tried while she had served as a city employee. Matter of Salva Realty Corp., OATH Index No. 743/96 (Mar. 8, 1996), adopted, Loft Bd. Order No. 1935 (Mar. 28, 1996).

A motion to disqualify an opposing party's counsel is governed by the disciplinary rules of the Code of Professional Responsibility. An agency's attorney who will testify as a trial witness may act as counsel to the agency, and may provide administrative and supervisory support to trial counsel, but may not himself act as trial counsel. Human Resources Admin. v. Man-of-Jerusalem, OATH Index No. 1021/91, mem. dec. (Nov. 12, 1991).

SUMMARY JUDGMENT

A motion for summary judgment will be granted where there are no disputed issues of material fact and the moving party is entitled to relief as a matter of law. In the absence of a material factual dispute, as here, there is no need for an evidentiary hearing. Comm'n on Human Rights ex rel Shmushkina v. New Brooklyn Realty, OATH Index Nos. 2541/08, 2542/08 & 2543/08, mem dec (Jan. 2, 2009); Comm'n on Human Rights ex rel Shlyakov v. 1347 Ocean Co., LLC, OATH Index No. 2829/08 (Jan. 12, 2009).

The petitioner's motion for summary judgment before trial was denied where the respondent's offer of proof raised triable issues of fact. Matter of Teitelbaum, OATH Index No. 424/96, mem. dec. (Dec. 11, 1995).

SUPPRESSION OF EVIDENCE

The Department of Buildings brought a license revocation proceeding against a master plumber. The plumber, who also works for the Department of Sanitation, made a pretrial motion to suppress statements he made to the Department of Investigation on the ground that the investigators failed to inform him of his right to representation under section 75 of the Civil Service Law. ALJ denied the motion, finding section 75 inapplicable in the license revocation proceeding. Dep't of Buildings v. Grande, OATH Index No. 794/06, mem. dec. (Mar. 9, 2006).

In a Loft Board proceeding, petitioner-tenant moved to suppress tape recorded conversations between petitioner and doorman/security guard on the ground that the recording was made without petitioner's knowledge or consent. OATH lacks jurisdiction to exclude the tape pursuant to CPLR § 4506(1), which provides that the motion to suppress be made before a justice of the Supreme Court in the district where the proceeding is pending. Further, as the security guard was a party to the conversation and consented to the taping, the taping was not illegal within the meaning of state law (Penal Law §§ 250.00(2), 250.05). Matter of Kasher v. BLF Realty Holding Corp., OATH Index No. 262/99 (Oct. 26, 2001), adopted in part, rejected in part on other grounds, Loft Bd. Order No. 2704 (Feb. 7, 2002).

The respondent's request for a pre-trial hearing on his motion for suppression of certain evidence against him was denied, and the suppression issues were deferred for adjudication at trial. Dep't of Correction v. Mack, OATH Index No. 964/95, mem. dec. (Feb. 3, 1995); see also Transit Auth. v. Castro, OATH Index No. 748/95 (Mar. 7, 1995).

JOINDER OF NECESSARY PARTIES

To accommodate her disability, petitioner sought a first floor apartment. The landlord denied the request because all of the first floor apartments were occupied under existing lease agreements. Petitioner sought joinder of real estate company and hospital, which leased first floor apartments from the landlord and then in turn leased those units to subtenants, on the ground that they were necessary parties to the requested relief, a first floor apartment. Under this section, the joinder of necessary parties is at the discretion of the administrative law judge. Finding that displacement of existing tenants would not be an available remedy if petitioner was ultimately successful, the administrative law judge denied the motion. Hagopian v. NJR Associates, OATH Index No. 2368/99, mem. dec. (Dec. 9, 1999).

MOTION TO REOPEN

Petitioner's motion to reopen was properly addressed to OATH administrative law judge where judge had previously withdrawn the original report and recommendation to correct an error. Administrative law judge granted the motion to supplement the record with further proof on the issue of liability, noting that although petitioner had not made a compelling showing that the evidence to be offered was unavailable at the original hearing, the motion was unopposed and “the dictates of justice militate against penalizing a party for . . . oversight or error of law in not introducing material evidence during the course of the hearing that was then available.” Office of the Comptroller v. NAB Management Associates, Inc., OATH Index No. 2162/99, mem. dec. (Oct. 8, 1999).

Respondent's motion to reopen the record to admit into evidence the unsolicited post-hearing affidavit from a Step 1A conference leader was granted as material and relevant to an assessment of petitioner's chief witness' credibility. Petitioner's motion to submit a letter containing the preliminary investigatory findings of the State Health Department's investigation into this matter was denied on procedural grounds as well as on the merits. The motion was procedurally defective because it was not served on petitioner's adversary. On the merits, the document was excluded because the administrative law judge found it would be unfair to the respondent if the judge were to rely on a bald conclusory statement regarding respondent's culpability in the incident. Health and Hospitals Corp. (Seaview Hospital Rehabilitation Center and Home) v. Rayside, OATH Index No. 972/99, mem. dec. (Apr. 15, 1999).

SANCTIONS

Preclusion of an agency's requested witness is the proper remedy for agency's repeated failure to identify the witness during numerous pretrial communications establishing the agency's witness list. Dep't of Housing Preservation & Development v. Porres, OATH Index No. 627/06 (June 16, 2006).

Sanctions in the form of a fine of $1,000 imposed upon petitioner's counsel for counsel's willful disobedience of tribunal's orders setting trial date and requiring proper harassment pleading and production of trial exhibits. Attorney sanctions ruling is undisturbed by Loft Board. Loft Board rejects ALJ's recommendation that application be dismissed with prejudice or conditions be placed on applicant before he may refile and remanded the matter to OATH for resolution of existing claims, and matter settled. Dawe v. 20 Beaver Street LLC, OATH Index Nos. 237/06 and 335/06, mem. dec. (Oct. 20, 2006), rejected in part and remanded, Loft Bd. Order No. 3161 (Feb. 15, 2007).