N.Y. Comp. Codes R. & Regs. tit. 6 § 622.3

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

Section 622.3 - Commencement of a proceeding

(a) 'Notice of hearing and complaint.'

(1) Department staff may commence an administrative proceeding by the service of a notice of hearing. If the proceeding is commenced by a notice of hearing, it must be accompanied by a complaint. The complaint must be signed and dated by a department attorney and contain:

(i) a statement of the legal authority and jurisdiction under which the proceeding is to be held;

(ii) a reference to the particular sections, subsections, paragraphs and subparagraphs of the statutes, rules and regulations alleged to have been violated;

(iii) a plain and concise statement of the matters asserted in consecutively numbered paragraphs. Each cause of action must be separately stated and numbered;

(iv) a demand for the relief sought, which may include relief in the alternative or different types of relief; and

(v) the name, mailing address and telephone number of the department attorney.

(vi) The complaint will be considered to have been signed by a department attorney if it bears:

('a') the physical signature of the attorney; or

('b') the attorney's signature scanned into an electronic format that reproduces the signature, provided the signatory affixed the digital image of his or her signature to the complaint.

(2) The notice of hearing must state that a hearing date will be set by the Office of Hearings and Mediation Services upon the filing of a statement of readiness for adjudicatory hearing as set forth in section 622.9 of this Part. The notice of hearing must also contain a statement that any affirmative defenses, including exemptions to permit requirements, will be waived unless raised in the answer and may set forth the date, time and place of a pre-hearing conference. The notice must contain a statement that the failure to answer, failure to attend a pre-hearing conference, or failure to attend the hearing will result in a default and a waiver of respondent's right to a hearing.

(3) Service of the notice of hearing and complaint must be by personal service consistent with the CPLR or by certified mail. Where service is by certified mail, service is complete when the notice of hearing and complaint is received. If personal service and service by certified mail is impracticable, upon application by department staff, the ALJ may provide for an alternative method of service consistent with CPLR 308(5).

(4) If a notice of hearing is served with a complaint and statement of readiness, the notice must state the date, time and place of the hearing set by the Office of Hearings and Mediation Services.

(b) 'Other methods of commencing a proceeding.'

(1) Proceedings may be commenced pursuant to sections 622.12 and 622.14 of this Part.

(2) Where a proceeding arises out of department staff's notification of intent to take specified action that will become final unless a hearing is requested, the notification takes the place of a complaint. Service of the notice of intent must be in the same manner as prescribed in paragraph (a)(3) of this section. A request for a hearing takes the place of an answer.

(3) Where a proceeding arises out of department staff's notice of expedited hearing issued pursuant to paragraph 613-5.4(a)(3) of this Title together with a written notification of any petroleum delivery prohibition, the notice of expedited hearing must state that the failure of the facility to appear at the time and place scheduled for the expedited hearing constitutes a waiver of the opportunity for an expedited hearing. Service of the notice of expedited hearing and written notification of any petroleum delivery prohibition must be in the same manner as prescribed in paragraph (a)(3) of this section. The facility may answer at any time up to and including the date of the expedited hearing. The notification of any petroleum delivery prohibition:

(i) takes the place of a complaint; and

(ii) must state the alleged facts or relevant conditions that are the basis for the delivery prohibition.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 622.3

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