N.Y. Comp. Codes R. & Regs. tit. 6 § 622.15

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

Section 622.15 - Default procedures

(a) A respondent's failure to file a timely answer or, even if a timely answer is filed, failure to appear at the hearing or the pre-hearing conference (if one has been scheduled pursuant to section 622.8 of this Part) constitutes a default and a waiver of respondent's right to a hearing. If a respondent fails to answer or to appear, department staff may make a motion to the ALJ for a default judgment.

(b) The motion for a default judgment may be made orally on the record or in writing and must contain:

(1) Proof of service upon respondent of the notice of hearing and complaint or such other document which commenced the proceeding;

(2) Proof of respondent's failure to appear or failure to file a timely answer;

(3) Consistent with CPLR 3215(f), proof of the facts sufficient to support the violations alleged and enable the ALJ and commissioner to determine that staff has a viable claim;

(4) A concise statement of the relief requested;

(5) A statement of authority and support for any penalty or relief requested; and

(6) Proof of mailing the notice required by subdivision (d) of this section, where applicable.

(c) Upon a finding by the ALJ that the requirements of subdivision (b) of this section have been adequately met, the ALJ will submit a summary report, which will address the circumstances of the default as well as the matters set forth in subdivision (b) of this section, and provide recommendations to the commissioner.

(d) Notice.

(1) Except as otherwise provided with respect to specific proceedings, whenever a written motion for a default judgment is made to the ALJ or Office of Hearings and Mediation Services, department staff must serve the motion and supporting papers on respondent, pursuant to section 622.6 of this Part. This notice requirement does not apply to matters that have been scheduled for hearing where:

(i) respondent was served the notice of hearing;

(ii) department staff appears at the hearing ready to proceed;

(iii) respondent fails to appear at the hearing; and

(iv) due to respondent's failure to appear at the hearing, department staff makes an oral motion for a default judgment and provides to the ALJ at the hearing the other proof required by subdivision (b) of this section.

(2) When a default judgment based upon non-appearance is sought against a domestic or authorized foreign corporation that has been served process pursuant to paragraph (b) of section 306 of the Business Corporation Law, a domestic or authorized foreign limited liability company that has been served process pursuant to paragraph (a) of section 303 of the Limited Liability Company Law, or a not-for-profit corporation that has been served process pursuant paragraph (b) of section 306 of the Not-For-Profit Corporation Law, department staff must provide respondent the additional notice required by CPLR 3215(g)(4).

(e) Where the ALJ concludes that the motion for default judgment should be denied, the ALJ will issue a ruling stating the reasons for the denial.

(f) Any motion for a default judgment or motion to reopen a default filed prior to the issuance of the final order of the commissioner must be made to the ALJ. A motion to reopen a default judgment may be granted consistent with CPLR 5015. The ALJ may grant a motion to reopen a default upon a showing that a meritorious defense to the alleged violations is likely to exist and that good cause for reopening the default exists.

(g) The defaulting party must be served with a copy of the final order of the commissioner.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 622.15

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