N.Y. Comp. Codes R. & Regs. tit. 6 § 622.10

Current through Register Vol. 46, No. 45, November 2, 2024

Section 622.10 - Conduct of the proceeding

(a) 'Order of events at the hearing.'

(1) Before any evidence is offered, department staff and then respondent may make an opening statement.

(2) The ALJ will determine the order in which parties present evidence but will generally require the party with the burden of proof to present its case first. Department staff may present a rebuttal case with respect to any affirmative defenses presented by respondent. At the discretion of the ALJ, rebuttal cases may be allowed in other situations.

(3) Each witness will first be questioned by the party calling the witness (direct examination) and then examined by the opposing party (cross examination). These examinations may be followed by re-direct and re-cross examinations.

(4) The ALJ will determine the sequence in which the issues will be tried and otherwise regulate the conduct of the hearing in order to achieve a speedy and fair disposition of the matters at issue.

(5) At the conclusion of the evidentiary hearing, the ALJ may give the parties an opportunity to make closing statements or to file briefs.

(6) A hearing will be conducted as nearly as practicable in the manner of a civil judicial proceeding.

(b) 'The ALJ.'

(1) In proceedings pursuant to this Part, the ALJ has the power to:

(i) rule upon motions and requests, including those that decide the ultimate merits of the proceeding;

(ii) set the time and the place of hearing, recesses and adjournments;

(iii) administer oaths and affirmations;

(iv) issue subpoenas upon request of a party not represented by an attorney admitted to practice in New York State;

(v) upon the request of a party, issue a subpoena duces tecum to be served upon a library, other department or bureau of a municipal corporation or of the State, or an officer thereof, requiring the production of any books, papers or other things;

(vi) upon the request of a party, issue, quash and modify subpoenas except that in the case of a non-party witness the ALJ may quash or modify a subpoena regardless of whether or not a party has so requested;

(vii) summon and examine witnesses;

(viii) admit or exclude evidence including the exclusion of evidence on grounds of privilege or confidentiality;

(ix) allow oral argument, so long as it is recorded;

(x) hear and determine argument on facts and law;

(xi) do all acts and take all measures necessary for the maintenance of order and efficient conduct of the proceeding;

(xii) direct the convening of any conference required for administrative efficiency;

(xiii) preclude irrelevant, immaterial or unduly repetitious, tangential or speculative evidence, argument, examination or cross-examination;

(xiv) issue orders limiting the length of cross-examination, the form, length and content of motions and briefs, and similar matters; and

(xv) exercise any other authority available to ALJs under this Part or presiding officers under SAPA Article 3.

(2) Impartiality of the ALJ and motions for recusal:

(i) The ALJ will conduct the proceeding in a fair and impartial manner.

(ii) An ALJ must not be assigned to any proceeding in which the ALJ has a personal interest.

(iii) Any party may file with the ALJ a motion in conformance with section 622.6 of this Part, together with supporting affidavits, requesting that the ALJ be recused on the basis of personal bias or other good cause. Such motions will be determined as part of the record of the proceeding.

(iv) Upon being notified that an ALJ declines or fails to serve, or in the case of the ALJ's death, illness, resignation, retirement, removal or recusal, the Chief ALJ must designate a successor within thirty (30) days of being notified.

(3) The designation of an ALJ as the commissioner's representative must be in writing and filed in the Office of Hearings and Mediation Services.

(c) 'Appearances.'

(1) A party may appear in person or by an attorney or other authorized representative.

(2) Any person appearing on behalf of a party in a representative capacity may be required by the ALJ to show and state on the record the person's authority to act in such capacity and to file a notice of appearance with the ALJ.

(3) If there is a change or withdrawal of a party's attorney or authorized representative, the party must provide notice of the change or withdrawal to the ALJ and the attorneys or authorized representatives of all other parties, or, if a party appears without an attorney or authorized representative, to the party within ten (10) days of the change or withdrawal.

(d) 'Appeals of ALJ rulings.'

(1) Any ruling of an ALJ may be appealed to the commissioner after the completion of all testimony as part of a party's final brief or by notice of appeal and appeal where no final brief has been authorized. The notice of appeal and appeal must be served on all parties and filed with the commissioner c/o the deputy commissioner for hearings and mediation services within ten (10) days of receipt of written notice that the hearing record is closed pursuant to subdivision 622.17(d) of this Part. Responses to a notice of appeal and appeal must be served on all parties and filed with the commissioner c/o the deputy commissioner for hearings and mediation services within five (5) days of receipt of the notice of appeal. One original and three copies of the notice of appeal, appeal and responsive papers must be filed with the commissioner c/o the deputy commissioner for hearings and mediation services.

(2) During the course of the proceeding, in conformance with subdivision 622.6(e) of this Part, the following rulings may be appealed to the commissioner on an interlocutory basis:

(i) any ruling in which the ALJ has denied a motion for recusal.

(ii) any other ruling of the ALJ by seeking permission to file an interlocutory appeal, upon a demonstration that the failure to decide such an appeal on an interlocutory basis would be unduly prejudicial to one of the parties, or would result in significant inefficiency in the hearing process. In all such cases, the commissioner's determination to entertain the appeal on an interlocutory basis is discretionary.

(3) A motion for permission to file an interlocutory appeal must demonstrate that the ruling in question falls within the criteria set forth in subparagraph (2)(ii) of this subdivision.

(4) The commissioner may review any ruling of the ALJ on an interlocutory basis upon the commissioner's own initiative or upon a determination by the ALJ that the ruling should be appealed.

(5) Whenever the commissioner grants permission to file an interlocutory appeal, the parties must be notified. The appellant must be provided the opportunity to file a brief on appeal and the other parties must be provided with the opportunity to file a response to the appeal.

(6) Failure to file an interlocutory appeal or the denial of permission to file an interlocutory appeal will not preclude an appeal from the ruling to the commissioner after the hearing.

(7) The hearing will not be adjourned while an appeal is pending except by permission of the ALJ or the commissioner.

(e) 'Consolidation and severance.'

(1) In proceedings that involve common questions of fact, the Chief ALJ upon the Chief ALJ's own initiative or upon motion of any party, may order a consolidation of proceedings or a joint hearing of any or all issues.

(2) The ALJ, upon the ALJ's own initiative or upon request of any party, in order to avoid prejudice or to achieve administrative efficiency, may order a severance of the hearing and hear separately any issue or any party to the proceeding.

(f) 'Intervention.'

(1) At any time after the commencement of a proceeding, the commissioner or the ALJ, upon receipt of a petition verified consistent with CPLR 3020 in writing and for good cause shown, may permit a person to intervene as a party.

(2) The petition of any person desiring to intervene as a party must state:

(i) the petitioner's interest in the matters involved;

(ii) the nature of the evidence petitioner intends to present;

(iii) the nature of the argument petitioner intends to make; and

(iv) any other reason that the petitioner should be allowed to intervene.

(3) Intervention will only be granted upon a showing of a reasonable likelihood that the petitioner's private rights would be substantially adversely affected by the relief requested, and that those rights cannot be adequately represented by the parties to the hearing.

(g) 'Adjournment.' After a date has been set for the hearing, adjournments will be granted only for good cause and with the permission of the ALJ. A request for an adjournment prior to the commencement of the hearing must be in writing and must be filed with the ALJ and served on all parties prior to the hearing. Adjournments must specify the time, day and place when the hearing will resume or specify the time and day on which the parties will advise the ALJ of the status of the proceeding.

(h) Consistent with section 52 of the Civil Rights Law, the audio or visual recording, photographing, filming, televising, broadcasting, or streaming of the adjudicatory hearing by use of any device or media is prohibited.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 622.10

Adopted New York State Register September 16, 2020/Volume XLII, Issue 37, eff. 9/16/2020

Amended New York State Register August 21, 2024/Volume XLVI, Issue 34, eff. 8/21/2024