N.Y. Comp. Codes R. & Regs. tit. 6 § 622.7

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

Section 622.7 - Disclosure

(a) 'Scope.'

(1) Except as noted below, the scope of disclosure is as broad as the scope of disclosure under CPLR Article 31.

(2) Potentially relevant electronically stored information (ESI).

(i) Unless authorized by the ALJ, disclosure of ESI is limited to active data only.

(ii) Upon motion of any party demonstrating substantial prejudice, the ALJ may order additional disclosure of potentially relevant ESI, subject to any terms and conditions deemed appropriate by the ALJ. Such a motion must be accompanied by an affirmation of an attorney, or an affidavit of the moving party if not represented by an attorney, describing the good faith efforts to resolve the dispute without resort to a motion.

(b) 'Disclosure devices.'

(1) Except as noted below, the parties may employ any disclosure device contained in CPLR Article 31. Where production and inspection of documents is sought, the requested documents must be furnished within twenty (20) days of receipt of the disclosure demand unless a motion for a protective order is made.

(2) Depositions and written interrogatories will only be allowed by permission of the ALJ upon a finding that they are likely to expedite the proceeding.

(3) Bills of particulars are not permitted.

(c) 'Protective order and motion to compel.'

(1) A party against whom disclosure is demanded may make a motion to the ALJ for a protective order, in general conformance with CPLR 3103, to deny, limit, condition or regulate the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice. Such a motion must be filed within twenty (20) days of the receipt of the disclosure demand and must be accompanied by an affirmation of an attorney, or an affidavit of the moving party if not represented by an attorney, describing the good faith efforts to resolve the dispute without resort to a motion.

(2) If a party fails to comply with a disclosure demand without having made a timely objection, the proponent of the disclosure demand may make a motion to the ALJ to compel disclosure. Such a motion must be accompanied by an affirmation of an attorney, or an affidavit of the moving party if not represented by an attorney, describing the good faith efforts to resolve the dispute without resort to a motion.

(3) Sanctions. Upon failure by a party to comply with a ruling or order by the ALJ or the commissioner to produce material or information demanded in disclosure, the ALJ or commissioner may exclude the material or information. In addition, the ALJ or the commissioner may draw an adverse inference regarding the non-producing party with respect to the material or information the party did not produce or grant other appropriate relief consistent with CPLR 3126. The award of attorneys' fees or other costs is not authorized.

(d) 'Subpoenas.' Consistent with the CPLR, any attorney of record in a proceeding has the power to issue subpoenas. A party not represented by an attorney admitted to practice in New York may request the ALJ or, if no ALJ has been assigned to the proceeding, the Chief ALJ, to issue a subpoena, stating the items or witnesses needed by the party to present its case. The service of a subpoena is the responsibility of its sponsor. This Part does not affect the authority of an attorney of record for any party to issue subpoenas under CPLR 2302, except that all subpoenas must give notice that the ALJ may quash or modify the subpoena pursuant to the standards set forth under CPLR Article 23. 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, may be issued consistent with CPLR 2307 by the ALJ assigned to the proceeding or, if no ALJ has been assigned to the proceeding, the Chief ALJ.

(e) When department staff seeks the revocation of a permit previously granted by the department, either party must, upon demand, and at least seven (7) days prior to the hearing, disclose the evidence that the party intends to introduce at the hearing, including documentary evidence and identification of witnesses; provided, however, the provisions of this subdivision do not require the disclosure of information or material otherwise protected by law from disclosure, including information and material protected because of privilege or confidentiality. If, after the disclosure, a party determines to rely upon other witnesses or documentary evidence, the party must, as soon as practicable, supplement its disclosure by providing the names of the witnesses or the documentary evidence.

N.Y. Comp. Codes R. & Regs. Tit. 6 § 622.7

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