N.Y. Comp. Codes R. & Regs. tit. 6 § 622.12

Current through Register Vol. 46, No. 51, December 18, 2024

Section 622.12 - Motion for order without hearing

(a) In lieu of or in addition to a notice of hearing and complaint, department staff may serve a motion for order without hearing together with supporting affidavits reciting all the material facts and other available documentary evidence. Simultaneously with the service of the motion for order without hearing or as soon as practical thereafter, department staff must file with the Chief ALJ a copy of the motion and supporting papers together with proof of service on each respondent.

(1) A motion for order without hearing in lieu of complaint must be served in the manner prescribed in paragraph 622.3(a)(3) of this Part and comply with the requirements of paragraph 622.3(a)(1) of this Part.

(2) A motion for order without hearing served after jurisdiction has been obtained over respondent by service of a notice of hearing and complaint must be served in the manner prescribed in subdivision 622.6(a) of this Part.

(3) A motion for order without hearing served after service of a notice of hearing and complaint may amend the pleadings subject to the requirements of section 622.5 of this Part.

(b) A motion for order without hearing in lieu of complaint must include a statement that a response must be filed with the assigned ALJ, or if no ALJ has been assigned to the proceeding, the Chief ALJ, within twenty (20) days after each respondent's receipt of the motion, and that the failure to respond to the motion constitutes a default.

(c) Within twenty (20) days of receipt of a motion for order without hearing, each respondent must file with the assigned ALJ, or if no ALJ has been assigned to the proceeding, the Chief ALJ and serve on department staff a response to the motion, which must include supporting affidavits and other available documentary evidence. A response to a motion for order without hearing in lieu of complaint must explicitly assert any affirmative defenses consistent with subdivision 622.4(c) of this Title. When it appears from affidavits and documentary evidence filed in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the assigned ALJ may deny the motion or order a continuance to permit the submission of the essential facts, and may make such other rulings as may be just and proper.

(d) A motion for order without hearing will be granted if, upon all the papers and proof filed, the cause of action or defense is established sufficiently to warrant granting summary judgment under the CPLR in favor of any party. Likewise, where the motion includes several causes of action, the motion may be granted in part as to one or more causes of action or any defense thereto if it is determined the cause of action or defense is established sufficiently to warrant the grant of summary judgment. Upon determining that the motion should be granted, in whole or in part, the ALJ will prepare a report and submit it to the commissioner pursuant to section 622.18 of this Part.

(e) A motion for order without hearing will be denied with respect to particular causes of action if any party shows the existence of one or more triable issues of fact requiring a hearing. If a motion for order without hearing is denied, the ALJ may, if practicable, ascertain what facts are not in dispute or are established as a matter of law by examining the evidence filed, interrogating a party or a party's attorney or representative, or directing a conference. The ALJ will thereupon make a ruling denying the motion and specifying those facts, if any, that will be deemed established for all purposes in the hearing. Where the motion for order without hearing is in lieu of complaint, upon the issuance of such a ruling, the moving and responsive papers will be deemed the complaint and answer, respectively, and the hearing will proceed pursuant to this Part.

(f) The existence of a triable issue of fact regarding the amount of civil penalties or remedial relief requested will not bar the granting of a motion for an order without hearing on liability. If the only triable issues of fact arising on a motion for order without hearing relate to the amount of civil penalties or remedial relief requested, the ALJ will schedule the matter for a hearing to determine the amount of civil penalties or appropriate remedial relief to be recommended to the commissioner.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 622.12

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