Chapter II - Subchapter C

§2-27 Entry of and Relief from Default.

Default Granted

Respondents declared in default where they failed to submit an answer for six months, despite being repeatedly reminded and admonished for not doing so by Commission staff. Comm’n on Human Rights ex rel. Chacon v. Assistance By Improv, Inc., OATH Index No. 1763/15, mem. dec. (Apr. 29, 2015).

Where respondent failed to submit an answer or an affidavit demonstrating good cause for his failure to do so, ALJ found him in default and precluded him from participating in the hearing. Comm’n on Human Rights v. Rozario, OATH Index No. 1273/15, mem. dec. (Mar. 31, 2015).

Motion to find respondents in default granted where they failed to submit an answer for nine months, after being repeatedly reminded by Commission’s staff and served with a motion for a default. Comm’n on Human Rights ex rel. Garriques v. South Queens Medical Group, PLLC, OATH Index No. 995/15, mem. dec. (Feb. 2, 2015).

ALJ agreed with Commission that respondent must be found in default for failing to submit an answer for 19 months, even after being repeatedly reminded and admonished for not doing so. Respondent also did not offer any explanation for failing to submit an answer. Comm’n on Human Rights v. Evelina Beauty Salon, OATH Index No. 900/15, mem. dec. (Dec. 29, 2014).

ALJ concluded that respondents must be found in default for failure to submit an answer for two years, even after being repeatedly reminded and admonished for not doing so by Commission staff. Respondents also failed to submit an affidavit demonstrating good cause or offering any explanation for failing to submit an answer. Even if it were true that there would be no prejudice in permitting respondent to answer and defend against the complaint, that is insufficient to establish the good cause necessary to prevent a finding of default. Comm’n on Human Rights v. Crazy Asylum, LLC, OATH Index Nos. 2262/13, 2263/13, & 2264/13, mem. dec. (Oct. 1, 2013).

Respondent, who had not filed an answer, found in default where Commission made enormous efforts to get him to participate and respondent deliberately thwarted its many attempts at meaningful engagement in the process and challenged its authority. Comm’n on Human Rights v. Jenkins, OATH Index No. 2331/13, mem. dec. (Oct. 30, 2013).

Default Denied

It is well established that judgments by default are disfavored, especially where a respondent is actively seeking to defend against the allegations. Comm’n on Human Rights ex rel. Jordan v. Raza, OATH Index No. 716/15, mem. dec. (Feb. 11, 2015); Comm’n on Human Rights v. Jenkins, OATH Index No. 2331/13, mem. dec. (Oct. 30, 2013).

Motion to find two pro se respondents in default denied. Commission failed to give respondents notice of their alleged noncompliance with the answer requirements until after the first conference, thus depriving them of the opportunity to submit an affidavit stating the reasons for their failure to comply before the conference as provided for in the Commission rules. Moreover, unlike in other cases, the Commission did not establish that it made repeated efforts to have respondents participate in the process. Comm’n on Human Rights ex rel. Jordan v. Raza, OATH Index No. 716/15, mem. dec. (Feb. 11, 2015).

Although respondent did not strictly comply with applicable rules, ALJ declined to find him in default. Not only did respondent timely file an answer to the verified complaint, but he retained counsel who represented him at the conference. Thus, by his actions, respondent proved that he was actively seeking to defend against the allegations rather than ignore the Commission. Comm’n on Human Rights v. Jenkins, OATH Index No. 2331/13, mem. dec. (Oct. 30, 2013).

OATH’s rules governing the entry of a default is preconditioned upon the Commission declaring that default in its referral, which the ALJ found did not occur. Comm’n on Human Rights ex rel. Hollinger v. Dep’t of Education, OATH Index No. 486/05, mem. dec. (Jan. 26, 2005).

Vacate a Default

Standard

In order to establish good cause, a respondent must provide a reasonable excuse. OATH has recognized reliance on a mistaken belief in settlement as an excuse for failing to file an answer. However, such an excuse only constitutes good cause if the underlying facts are substantiated and reasonable. Comm’n on Human Rights v. Crazy Asylum, LLC, OATH Index Nos. 2262/13, 2263/13, & 2264/13, mem. dec. (Nov. 6, 2013).

To vacate a default, a party must show (1) good cause for the conduct constituting the default, (2) good cause for the failure to oppose entry of the default in accordance with OATH Rule 2-27(a), and (3) a meritorious defense to the petition. Comm’n on Human Rights v. Hudson Overlook, LLC, OATH Index No. 2094/04 (Jan. 20, 2005).

Granted

Motion to vacate default granted where respondent established good cause for failing to answer the complaint by showing that he lacked funds to hire an attorney, did not believe the Human Rights Law applied to small businesses, and Hurricane Sandy disrupted his business. Comm’n on Human Rights v. Xio Lounge, OATH Index No. 2150/13, mem. dec. (Oct. 28, 2013).

Denied

Respondents did not satisfy the criteria to vacate a default. As to good cause, respondents’ assertion that it did not file an answer because it was engaging in settlement discussions was not supported by the record. Further, the First Amendment was not a meritorious defense as it does not protect speech used in advertisements that violate anti-discrimination statutes. The claimed defense that the failure to use gender-neutral language in an advertisement is not a violation of any of the statutes cited by the Commission was also contrary to the express language of the Administrative Code. Comm’n on Human Rights v. Crazy Asylum, LLC, OATH Index Nos. 2262/13, 2263/13, & 2264/13, mem. dec. (Nov. 6, 2013).

Motion to vacate default denied. Respondents’ assertion that they did not appear at the hearing because they terminated complainant’s tenancy is insufficient where the termination notice was sent after the hearing. Further, even if that assertion were true, it would not constitute sufficient excusable neglect. It is incomprehensible for an officer of the court to submit motion papers saying that he did not appear before a tribunal because he thought he did not have to, yet never attempt to confirm this with the tribunal or his adversary. Thus, ALJ found respondents’ reason for not appearing to be a calculated strategy rather than excusable neglect. Comm’n on Human Rights v. Hudson Overlook, LLC, OATH Index No. 2094/04 (Jan. 20, 2005).

Leave to File Answer

When notified of their failure to submit a timely answer to the complaint, respondents submitted a letter to the Commission, rather than filing an affidavit with OATH prior to the first conference, as required. Finding respondents were in substantial compliance with OATH Rule 2-27(a), however, ALJ considered whether respondents asserted reasons constituting good cause for their failure to answer. ALJ found good cause based upon respondents’ good faith belief that settlement discussions obviated their need to answer and granted motion for leave to file an answer. Comm’n on Human Rights ex rel. Hidalgo v. Ditmas Park Rehabilitation and Care Center, LLC, OATH Index Nos. 2415/13, 2416/13, & 2417/13, mem. dec. (Sept. 25, 2013).